concurring fully and specially.
I concur fully in the majority opinion because it is the correct result under the circumstances of this case. However, I write specially to express my concern that the language of OCGA § 44-14-473 has the potential for creating problems in the future in analyzing the statute, particularly in light of our court’s existing body of law on the creation and legal effect of settlements and releases. Section (a) provides that an action to enforce a lien “shall be commenced against the person liable for the damages or such person’s insurer within one year after the date the liability is finally determined [(1)] by a settlement, [(2)] by a release, [(3)] by a covenant not to bring an action, or [(4)] by the judgment of a court of competent jurisdiction.” (Emphasis supplied.) It is clear from this language that the legislature intended to characterize each of these four events as a means of finally determining liability. And in this case, as held by the majority, any such “liability” was first and finally determined by the September 2010 settlement agreement. But our analysis in cases of settlement and release is made more difficult by the language of this Code section *745because, as in many circumstances under our law, neither a settlement nor a release establishes liability. While the Code section understandably treats the term “settlement” as describing another means by which litigation is brought to an end and potential liability foreclosed by payment of a claim, a “settlement” under Georgia law does not necessarily constitute such a clear and final termination of 3.11. cl3inis 14
Herring v. Dunning, 213 Ga. App. 695, 697 (446 SE2d 199) (1994), cited by the majority, explains that
[i]n litigation, “Compromise” is synonymous with “Settlement.” Settlement is defined in part as an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other. Black’s Law Dictionary (4th ed.). A settlement is an agreement to terminate or forestall all or part of a lawsuit. The word “settle” has an established legal meaning and implies a mutual adjustment of accounts between different parties and an agreement upon the balance.
(Citations and punctuation omitted.) Id. And a “release” is defined as the “ [liberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced.” Black’s Law Dictionary (9th ed. 2009). Neither an agreement to terminate a lawsuit nor an agreement to abandon a claim of right determines liability. As explained in Integon Indem. Corp. v. Henry Med. Center, 235 Ga. App. 97, 100 (2) (508 SE2d 476) (1998), liability is “avoided permanently” by a settlement and release. Indeed, the lien authorized by OCGA § 44-14-470 (b) is a lien on “any and all causes of action.” So once the cause of action has been permanently avoided or resolved by settlement or release or covenant not to sue, or liability has been finally determined by judgment, the lienholder has one year to commence an action to enforce its lien. Indeed, the purpose of OCGA § 44-14-473 is to establish the time within which the lienholder may begin to pursue the enforcement of its lien.
I also write to express my concern about the application of OCGA § 44-14-473 as it affects the ability of the lienholder to commence an action. The statute does not require the injured person or the person’s insurer to provide notice to the hospital lienholder in the *746event of a settlement, release, covenant not to sue, or judgment. But if, as seems likely, the lienholder is unaware of the occurrence of any of these events, its right to bring an action within one year is limited by the time within which it fortuitously discovers that one of these events has occurred. While in this case, it is apparent that the Hospitals were aware of the settlement, I do not believe that the legislature intended for a lienholder to be foreclosed from bringing an action because it did not discover one of the events listed in OCGA § 44-14-473 (a) until after the expiration of the one-year limitation period. A statutory notice requirement to the lienholder would be a more prudent method to avoid such an inequitable result.
Decided February 13, 2013 Carlock, Copeland & Stair, Jason W. Hammer, for appellant. Lewis, Brisbois, Bisgaard & Smith, Kristopher R. Alderman, Douglas T. Gibson, Miyong M. Park, for appellees.OCGA § 44-14-473 (a) also provides that an action to enforce a lien “shall be commenced against the person liable for the damages or such [liable] person’s insurer.” In the case of settlement and/or release, however, no person is liable for damages.