Broadway Clinic v. Liberty Mutual Insurance Co.

EDMONDSON, J.,

Dissenting and joined by WATT, C.J. and COLBERT, J.

¶ 1 I disagree with the majority’s conclusion that our statutory physician’s lien is enforceable against UM coverage and would dissent solely for that reason, but this case has more basic and fundamental flaws which also must be addressed: the small claims court did not have subject matter jurisdiction to hear and determine this action to enforce a lien, and the purported lien was not perfected according to statute.

¶ 2 The question of subject matter jurisdiction is primary and fundamental in every case and it is the duty of this Court to inquire into its own jurisdiction and that of the trial court whether or not such question is raised by the parties. Collins v. Mid-Continent Pipeline Co., 1999 OK 56, 6 P.3d 1050, 1051, fn. 2; Dickson v. Dickson, 1981 OK 142, 637 P.2d 110, 112, fn. 2; Hayhurst v. Hayhurst, 1966 OK 238, 421 P.2d 257, 260. Subject matter jurisdiction cannot be conferred by consent or waiver of the parties, and it may be raised at any time. Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910, 913. Jurisdiction is the authority by which courts and judicial officers take cognizance of and decide cases. Turk v. Coryell, 1966 OK 194, 419 P.2d 555, 558. It is the power of judicial officers and courts to hear and determine the subject in controversy and to exercise judicial power over every aspect of the cause and the power to render the particular judgment entered. Lowry v. Semke, 1977 OK 220, 571 P.2d 858, 861; In re Harkness’ Estate., 1921 OK 329, 204 P. 911, 917.

¶ 3 The small claims division of the district court is created by the Small Claims Procedure Act, 12 O.S. Supp.2003, §§ 1751-1753, which limits its jurisdictional power. Maxi*882mum values and amounts were increased to $6,000.00 effective November 1, 2004; that aside, the Act provided as follows at the times pertinent to this case:

A.The following suits may be brought under the small claims procedure:
1. Actions for the recovery of money based on contract or tort, including sub-rogation claims, but excluding libel or slander, in which the amount sought to be recovered, exclusive of attorneys fees and other court costs, does not exceed Four Thousand Five Hundred Dollars ($4,500.00);
2. Actions to replevy personal property the value of which does not exceed Four Thousand Five Hundred Dollars ($4,500.00). If the claims for possession of personal property and to recover money are pled in the alternative, the joinder of claims is permissible if neither the value of the property nor the total amount of money sought to be recovered, exclusive of attorneys fees and other costs, does exceed Four Thousand Five Hundred Dollars ($4,500.00); and
3. Actions in the nature of inter-pleader, as provided for in Section 2022 of this title, in which the value of the money which is the subject of such action does not exceed Four Thousand Five Hundred Dollars ($4,500.00); and
B.No action may be brought under the small claims procedure by any collection agency, collection agent, or assignee of a claim, except that an action may be brought against an insurer or third-party administrator by a health care provider as that term is defined in Section 6552 of Title 36 of the Oklahoma Statutes, who is an assignee of benefits available under an accident and health insurance policy, trust, plan, or contract.
C. In those cases which are uncontested, the amount of attorneys fees allowed shall not exceed ten percent (10%) of the judgment.
D. No action may be brought under the small claims procedure for any alleged claim against any city, county, or state agency, or employee of a city county or state agency, if the claim alleges matters arising from incarceration, probation, parole or community supervision.
E. No action by a plaintiff who is currently incarcerated in any jail or person in the state may be brought against any person or entity under the small claims procedure.

¶ 4 Broadway Clinic brought this suit to enforce its claimed statutory physician’s lien.1 It is not an action based on contract, tort, replevin or assignment of benefits, and it is therefore not authorized by § 1751 as a matter which may be heard and decided in small claims court.2 A case that is brought in a court which has no jurisdiction to settle the controversy is said to be “coram non judice” and such a decision is legally invalid. Collins v. Mid-Continent Pipeline Co., 6 P.3d at 1053, fn. 8. That being the situation here, I would hold the trial court’s purported judgment a nullity.

¶ 5 Since the majority of this Court does not agree that this action to enforce a lien *883exceeded the subject matter jurisdiction limitations of the small claims court, I must additionally dissent from its construction and application of 42 OS 2001 § 46.

¶ 6 Contrary to the majority’s position, § 46(B) is uncertain and ambiguous regarding who is meant to be included as “an insurer.” To reach its result, the majority reads the phrase in the abstract. It is not a phrase which stands alone without qualifications on its meaning, however. It is a part of the entire statute, and a statute must be construed as a whole in light of its general purpose and objective. The words, phrases and sentences of a statute are to be understood as they are used, not in an abstract sense, and words which are used in one part of a statute must be interpreted in light of their context and understood in that sense which best harmonizes with the other parts of the statute. Matter of Estate of Little Bear, 1995 OK 134, 909 P.2d 42, 50. The majority’s recognition that the statute does not define the outer boundaries of the lien only highlights the statute’s ambiguity. Thus, the reach of the lien into the property rights of injured patients is to be determined by the judiciary instead of the legislature.

¶7 Subsections A and B do not operate independently of each other. Subsection A creates a physician’s lien for medical services and limits its applicability to specific funds obtained in a specific way by a specific population of patients: the sums an injured patient recovers from his claim against a “person,” the tortfeasor or other third party at fault for his injury. Subsection B’s creation of a hen “[i]n addition to the hen” in subsection A, is limited by the particular terms of subsection A to mean the sums that the injured patient recovers from the insurer of the tortfeasor or other third party at fault for his injury.

¶ 8 It is axiomatic that the cardinal rule of statutory interpretation is to ascertain and, if possible, to give effect to the Legislature’s intention and purpose as it is expressed in the statute’s provisions. When the language of a statute is not plain or unambiguous, it is the court’s job to determine the meaning of the statute in a way that produces a reasonable result which will promote the general purpose for which the statute was enacted. See AMF Tubescope Company v. Hatchel, 1976 OK 14, 547 P.2d 374, 379-80.

1Í 9 Appellee correctly argues that the doctrine of statutory interpretation, ejusdem generis, applies here and precludes the majority’s finding that the statutory lien may be enforced against uninsured motorist benefits paid to the insured patient by his own insurer. Under that rule, where general words follow particular words, the general words do not explain or amplify particular words preceding them, but are themselves restricted and explained by the particular terms. Oklahoma Tax Commission v. Fortinberry Co., 1949 OK 75, 207 P.2d 301, 305. Nuckolls n Board of Adjustment of the City of Tulsa, 1977 OK 3, 560 P.2d 556, 558-559.' Where general words follow particular words the general words will be considered as applicable only to things of the same general character, kind, nature or class enumerated, and cannot include wholly different things Nuckolls v. Board of Adjustment of the City of Tulsa, supra; White v. Wint, 1981 OK 154, 638 P.2d 1109, 1114. This maxim is an application of the broader maxim, noscitur a soci-is, which means that general and specific words are associated with and take color from each other, restricting general words to sense analogous to less general. Application of Central Airlines, Inc., 1947 OK 312, 185 P.2d 919, 923-924. In Central Airlines we observed that the rule is based on the obvious reason that “if lawmakers had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes.” Id. at 924.

¶ 10 Application of these doctrines of statutory construction requires a finding that the meaning of “an insurer” in subsection B is restricted to the insurer of the tortfeasor or the party who caused the injury, and an injured party’s own insurer is not intended to be included. There is no clearly manifested legislative intent that the language should be given a broader meaning.

¶ 11 In Kratz v. Kratz, 1995 OK 63, 905 P.2d 753, we found 42 O.S.1999, § 43, the statutory hospital lien, was ambiguous and we determined that it did not apply to uninsured motorist benefits paid by the patient’s *884own insurer. We recognized that uninsured motorist insurance is “first-party” coverage, like collision, comprehensive or medical payments, not “third-party” coverage, like public liability insurance, as it is a carrier’s direct promise to its insured to pay insured for the loss, rather than a promise to insured to pay a third party. UM coverage is a benefit of insured’s private contractual arrangement with his or her carrier based on the terms of the policy. Uptegraft v. Home Ins. Co. 1983 OK 41, 662 P.2d 681. Uninsured motorist insurance is not a “windfall.” It is intended to compensate an insured for his loss, while public liability coverage furnishes him protection from creditors, not compensation for his loss. See Uptegraft v. Home Ins. Co., 662 P.2d at 684.

¶ 12 While it is true that § 46, the physician’s lien statute before us today, is not an exact copy of § 43, the hospital lien statute, the two are virtually identical in all relevant respects. The majority’s view that § 46 is so dissimilar as to require a different result from the holding in Kratz is unconvincing. Both are intended to assure payment for medical treatment provided for injured patients who might otherwise be non-paying. Both clearly create a lien on the money the injured patient recovers from the person who caused the injury and money recovered from a tortfeasor’s insurer. Both are unclear about the lien’s application to the injured patient’s own insurance. The notice, perfection and enforcement procedures for both liens are quite similar. Significantly, both liens also provide for the superiority of the patient’s attorney’s lien. See § 46(C) and § 43. We noted in Kratz that this established superiority results from the Legislature’s recognition that without the attorney’s representation of the injured person against the tortfeasor and the tortfeasor’s insurer, there would be no money to impress a lien upon. Considering this factor in our construction of the statute to exclude UM coverage in Kratz, we stated: “The court noted in Vinzant v. Hillcrest Med. Center[, 609 P.2d 1274 (Okl.1980) ] ... that superiority was legislative recognition that it is the skill and effort of the lawyer in a personal injury case which results in there being a recovery for the patient and the hospital, and rests on the fact that for lawyers a contingent fee is the ‘customary arrangement in negligence eases.’ ” Kratz, 905 P.2d at 756-757.

¶ 13 Given the consistency of the two statutory liens, it seems very unlikely that the legislature intended hospital liens to apply only to third-party coverage but intended physician’s liens to apply to first-party coverage as well as third-party coverage.

¶ 14 In Kratz, we recognized that there is no basis for a hospital lien in the absence of statute, and that while the hospital lien serves a worthy public purpose, we are not free to read in the inclusion of funds which are not fairly embraced by the terms of the statute:

This Court must strictly construe statutes creating liens. Liens are property rights and it is not the function of the courts to create them from a sense of justice in a particular case. Young v. J.A. Young Mach. & Supply Co., 203 Okla. 595, 224 P.2d 971 (1950). Liens can be created either by contract or by law. 42 O.S.1991 § 6. A statutory lien such as the hospital lien at issue stands in derogation of the common law and must be strictly construed. A lien that is not provided by the clear language of the statute cannot be created by judicial fiat, for the words of the statute are the measure of the right and the remedy. A court cannot create a lien out of a sense of fairness if the terms of the statute are found too narrow and have not been met. Riffe Petroleum C. v. Great Nat. Corp., Inc., 614 P.2d 576 (Okl. 1980); Harriss v. Parks, 77 Okl. 197, 187 P. 470 (1920); Interurban Construction Co. v. Central State Bank of Kiefer, 76 Okl. 281, 184 P. 905 (1919). Kratz, 905 P.2d at 756.

¶ 15 Appellee correctly contends that if the physician’s lien statute can be enforced against UM benefits, all first-party coverages will now be included within its reach, including those which are unrelated to the patient’s injuries and were not intended for that purpose. In my opinion, “an insurer” in the language of a statute means the insurer of the tortfeasor or other party at fault. The majority, by judicial fiat, creates a physi-*885dan’s lien on first-party coverage and, in doing so, also removes the protection afforded UM and other first-party coverage provided by the Legislature’s exemption from attachment, execution or other forced sale, of a “person’s interest in a claim for personal bodily injury, death or worker’s compensation claim, for a net amount not in excess of Fifty Thousand Dollars($50,000.00), but not including any claim for exemplary or punitive damages.” 31 O.S.2001, § 1(21).

¶ 16 As a final and additional point, I submit the physician’s lien at issue here is invalid because it was not perfected as required by statute. It does not contain an itemized statement of the amount claimed, but only asserts the total amount claimed. Title 42 O.S., Section 46, (C)(1) and (2), set forth the requirements for perfection of a physician’s lien, and provide it must be in writing and contain:(1) an itemized statement of the amount claimed; (2) an identification of the insurance policy against which the lien is asserted; (3) the name and address of the physician; (4) the name and address of the injured person; and (5) the name of the person, firm, or corporation against whom the claim is made. The notice must be filed on the mechanic’s and materialman’s lien docket in the county of the physician’s office and a copy of the lien as filed must be sent by registered or certified mail to the injured party and his attorney, if known, and the person, firm or corporation allegedly liable. Similar requirements are provided for the creation of a hospital lien by 42 O.S. § 46(C)(1).

¶ 17 As previously discussed, our decisions strictly construe statutory liens and have consistently held that in order for a statutory lien to be valid and enforceable, the exact terms of the statute creating it must be complied with. Courts cannot ignore the terms prescribed by a statute for creating a lien. Balfour v. Nelson, 1994 OK 149, 890 P.2d 916, 919. This principle of strict statutory construction was adopted in Malloy v. St John Medical Center, 234 B.R. 519 (N.D.Okla.1999), holding that where creditors’ hospital and physician liens did not contain itemized statements of the amounts claimed, the liens were unenforceable because they failed to comply with Oklahoma’s statutory requirements for perfection. Addressing creditors’ arguments that the defects in their liens should be overlooked because the purpose of the lien is to assure payment to medical providers, that Court, relying on Kratz, explained that the judiciary has no power to repeal statutory requirements which have not been met in order to reach some specific result for the parties.

CONCLUSION

¶ 18 Because (l)small claims courts do not have jurisdiction of physician’s lien enforcement actions, (2) physicians do not have a statutory lien against their patients’ UM coverage, and (3) Broadway Clinic’s purported lien failed to comply with the requirements necessary for perfection and was therefore unenforceable, I respectfully dissent.

. The physician's lien statute, 42 O.S.2001, 46 provides: "D. The liens provided for in this section may be enforced by civil action in the district court of the county where the lien was filed. Such an action shall be brought within one (1) year after the physician becomes aware of final judgment, settlement or compromise of the claim asserted or maintained by or on behalf of the injured person. The practice, pleading, and proceedings in the action shall conform to the rules prescribed by the Oklahoma Pleading Code [12 O.S.2001 §§ 2001, et seq.] to the extent applicable.”

. For decisions recognizing subject matter jurisdiction limitations of the small claims court docket based on § 1751 restrictions, see Patterson v. Beall, 2000 OK 92, 19 P.3d 839(small claims court limited by statute as to types of cases and cap on damages); Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d 1041 (cap on claim is jurisdictional limit); Carter v. Gullett, 1979 OK 146, 602 P.2d 640(jurisdiction in small claims dependent on amount of claim and counterclaim); Seminole Family Medicine Clinic v. Southern, 2005 OK CIV APP 46, 116 P.3d 191 (collection agency not proper party in small claims action); Fowler Equipment Co. v. Houston Oil Co., Inc. 1997 OK CIV APP 52, 945 P.2d 513 (small claims court is without power to exceed cap on recoverable damages); Phillips v. Seffel, 1998 OK CIV APP 6, 954 P.2d 1257 (jurisdiction of small claims dependent on kind of case and amount sought)