AMISUB (Saint Joseph Hosp.) v. Allied Property and Cas. Ins. Co.

• Decision Date: 24 March 1998
• Docket Number: No. A-96-618,A-96-618
• Parties: AMISUB (SAINT JOSEPH HOSPITAL), INC., Appellee, v. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Third-Party Plaintiff, Appellant, and Christopher J. Tinley, Third-Party Defendant, Appellee.
• Court: Nebraska Court of Appeals

Page 493

576 N.W.2d 493

6 Neb.App. 696

AMISUB (SAINT JOSEPH HOSPITAL), INC., Appellee, v. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Third-Party Plaintiff, Appellant, and Christopher J. Tinley, Third-Party Defendant, Appellee.

No. A-96-618.

Court of Appeals of Nebraska.

March 24, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Health Care Providers: Liens. Under Neb.Rev.Stat. § 52-401 (Reissue 1993), a hospital lien attaches upon admission of a patient to the hospital for treatment.

4. Health Care Providers: Liens: Attachments: Notice. A hospital's lien is enforceable as against an injured party upon attachment, regardless of whether the hospital complies with the notice provisions enumerated in Neb.Rev.Stat. § 52-401 (Reissue 1993).

5. Health Care Providers: Liens: Tort-feasors. Perfection is required if a hospital seeks to enforce a lien against third parties, such as a tortfeasor.

6. Health Care Providers: Liens: Insurance: Tort-feasors. Upon perfection of a lien by a hospital, a duty arises on the part of the tort-feasor's insurer not to impair the hospital's rights under that lien.

7. Health Care Providers: Liens: Insurance: Liability. If an insurer settles directly with an injured party despite the existence of a perfected hospital lien, it has breached the duty not to impair the hospital's rights under that lien and is liable directly to the hospital.

8. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

9. Health Care Providers: Liens. A lien that has been perfected under the law of the state where a hospital service was rendered constitutes a valid lien upon any award, judgment, or settlement, regardless of where the event which caused the injury occurred or of the residence of the injured party or the party causing the injury.

10. Summary Judgment: Pleadings. When a plaintiff is entitled to a summary judgment on the issues pled in a petition, the only affirmative defenses that can prevent such a summary judgment are those which are pled by the defendant.

11. Summary Judgment. Summary judgement is proper when, based upon the pleadings, the evidence in the record discloses that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

12. Pleadings. The purpose of pleadings is to frame the issues upon which a cause is to be tried, and the issues in a given case will be limited to those which are pled.

13. Pleadings. An answer shall contain a statement of any new matter constituting a defense, counterclaim, or setoff, in ordinary and concise language, and without repetition.

14. Summary Judgment: Pleadings. Upon a motion for summary judgment, a defendant cannot have the benefit of a possible 15. Actions: Jurisdiction. When the same cause of action, involving the same parties, is pending in courts of different and sovereign jurisdictions, the actions may proceed independently of each other.

affirmative defense that is not pled in the answer.

David D. Ernst and Michael C. Pallesen, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellant.

Neil B. Danberg, Jr., and Michael S. Degan, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee AMISUB.

Michael G. Reilly, of Reilly, Petersen, & Hannan, P.L.C., for appellee Tinley.

HANNON, IRWIN, and MUES, JJ.

HANNON, Judge.

In this case, AMISUB (Saint Joseph Hospital), Inc., the operator of Saint Joseph Hospital in Omaha, Nebraska, seeks to enforce a hospital lien it claimed for treatment rendered to Kelly E. Lynam. Lynam was injured in Montgomery County, Iowa, in a collision involving an automobile driven by Dorothy Ann Askey. Both Lynam and Askey are residents of Iowa. Immediately after the collision, Lynam was taken to Saint Joseph Hospital for treatment. AMISUB perfected a hospital lien under Neb.Rev.Stat. § 52-401 (Reissue 1993). Later, Allied Property and Casualty Insurance Company, Askey's liability carrier, paid Lynam the limit of Askey's policy, $25,000, to settle Lynam's claim. AMISUB then brought an action against Allied to enforce its hospital lien. In its answer, Allied alleged that Iowa law controlled and that AMISUB did not have a lien under that law.

Allied also filed a third-party petition against Christopher J. Tinley, Lynam's attorney in the settlement, on the basis that Tinley was liable to Allied under the terms of the settlement agreement. The trial court granted AMISUB's motion for summary judgment against Allied for the limits of Askey's policy on the basis that Nebraska law, and not Iowa law, controlled. Allied now appeals, arguing that the trial court erred in applying Nebraska law and, in addition, that regardless of which law applied, there were issues of fact which prevented summary judgment. Specifically, Allied points to evidence which shows the possibility that the Iowa Department of Human Services (IDHS) also had a lien against the same funds. Allied also contends that the attorney fees Lynam paid to Tinley to accomplish the settlement should have been deducted from Lynam's recovery and that these are factual questions which prevent summary judgment. We conclude that Nebraska law does apply, that AMISUB is entitled to enforce its lien, and that because Allied did not plead the issues concerning the IDHS' lien or the attorney fees, they were not issues which could properly be considered on a motion for summary judgment. We therefore affirm the court's order sustaining AMISUB's motion for summary judgment.

The trial court also granted Tinley's motion for summary judgment and dismissed Allied's third-party petition because the evidence established that Tinley had filed suit against Allied in Iowa. Allied appeals from this order as well. We conclude that because the pendency of the same action in a court of a different or sovereign jurisdiction does not bar the present action, the judgment of the district court, sustaining Tinley's motion, must be reversed.

BACKGROUND

Most of the allegations of AMISUB's petition are admitted by Allied's answer. In addition to the corporate organization of the parties, AMISUB alleged that on or about June 2, 1992, Lynam was involved in a motor vehicle collision with Askey at or near Montgomery County, Iowa; that, at the time of the collision, Askey was insured by Allied under a liability insurance policy; that on that same day, Lynam was transported to Saint Joseph Hospital by helicopter, where he sought and received treatment for the injuries received in the collision; that he was discharged from the hospital on June 15; that on September 1, Lynam commenced a lawsuit against Askey in the district court for Montgomery County, Iowa, to recover for his injuries; that on April 8, 1993 (though In addition, AMISUB alleged, and Allied denied, that the reasonable costs of the hospital services, including the helicopter services, rendered to Lynam were $70,551.63; that on September 17, 1992, pursuant to § 52-401, AMISUB notified Lynam in writing that it claimed a lien in the amount of $70,641.83 against any recovery in connection with the injuries sustained from the collision; that on September 22, AMISUB notified Allied of its intent to perfect and enforce a hospital lien in the amount of $70,641.83 against any moneys obtained by Lynam; and that on or about March 3, 1993, AMISUB filed a hospital lien in the district court for Montgomery County, Iowa, in the case pending there. A copy of the notices given to Lynam and Allied and also filed with the Iowa court were attached to AMISUB's petition. Also denied were AMISUB's allegations that Allied had failed and refused to honor AMISUB's hospital lien; that Allied had refused to pay any funds in satisfaction of AMISUB's hospital lien; and that AMISUB is still due $70,551.63.

the evidence reveals that it actually occurred on April 8, 1994), Lynam and Askey entered into a settlement agreement discharging all claims arising out of the collision; that Lynam dismissed his lawsuit on April 11, 1993 (we assume, due to the above-noted error, that such actually occurred on April 11, 1994); and that Allied paid funds on behalf of Askey to Lynam and Tinley pursuant to the terms of the settlement agreement. By its answer, Allied admitted these allegations.

Besides the admissions and denials referred to in its answer, Allied alleged that chapter 582 of the Code of Iowa, concerning Iowa hospital liens, Iowa Code Ann. §§ 582.1 through 582.4 (West 1992), controlled the outcome of the case and that AMISUB had failed to comply with § 582.2 of that code. These allegations are denied in AMISUB's reply.

On February 7, 1996, Allied filed a third-party petition against Tinley, alleging that in April 1994 it had made a settlement payment to Lynam and Tinley in settlement of Lynam's claim against Askey and that as part of the settlement agreement Lynam and Tinley had agreed to satisfy any claims of AMISUB relating to Lynam's medical treatment. Allied further alleged that as a result of Tinley's failure to satisfy AMISUB's lien, AMISUB had filed suit against Allied, causing it to incur legal expenses in defending the action. Allied alleged that if AMISUB prevailed in its suit, Allied was entitled to reimbursement from Tinley. Allied prayed for judgment against Tinley in the amount of any judgment entered against Allied,...