NO. 90-068 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

ANESTHESIOLOGY, P.C.; DR. C.W. McCOY; DR. GERALD H. SIEMENS; DR. NORMAN J. NICKMAN; and DR. J.E. JARRETT, Plaintiffsand Respondents,-vsBLUE CROSS AND BLUE SHIELD OF MONTANA, A Corporation, Defendantand Appellant,

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Hughes, Kellner, Sullivan & Alke, John Alke argued, Helena, Montana For Respondent: Snavely & Phillips, Robert J. Phillips argued, Missoula, Montana

Submitted: September 05, 1990

, Decided: October 26, 1990 Filed:
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### .- WJustice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant and defendant Blue Cross and Blue Shield of Montana appeals from the order of the District Court of the FirstJudicial District, Lewis and Clark County, granting summary judgment to plaintiff and respondent, Dr. C. W. McCoy, for a lien filed for services rendered to an insured of the defendant. We reverse and remand for further proceedings in accordance with this opinion. The sole issue raised by this appeal is whether the 1987 amendments to the Montana Insurance Code affect appellant's immunity from liens under the Physicians1Lien Act. Blue Cross is ahealth servicecorporation,governedby fj 33- 30-101through 3 -1102,MCA, operating anonprofit health careplan within the State ofMontana. Itenters into contractswith health care providers for services to its insureds. In the case of a contractbetween Blue Cross and aphysician, thephysician becomes
a I1professional member. Theprofessionalmember agreestoaccept,
as payment in full, a fee established by Blue Cross for services to Blue Cross insureds. The physician also forfeits the right to "balancebilln the Blue Cross insured for any difference between the physicianlscharge and the fee allowed by Blue Cross. The contractbetween Blue Cross and theprofessional member allows the professional member to directly bill Blue Cross for services provided to the insured. A physician who does not have a contract with Blue Cross is
a I1nonmemberphysician. A nonmember physician must bill theinsured for the entire cost of the servicesprovided, and look to the insured for payment of those costs. Payments made by Blue Cross for services rendered by nonmember physicians are made directly to the insured. Any balance of the bill must be paid by the insured. Respondent, Dr. C. W. McCoy (anonmember physician) provided health care services to Pamela Dark on December 15, 1987. Pamela
was billed $1,790.00 for these services. On January 4, 1988,Dr. McCoy sent a lien notice to Blue Cross, claiming a lien against insurance benefits payableby Blue Cross toor on behalf of Pamela. Blue Cross ignored the lien and made payment directly to Pamela. In the action against Blue Cross, plaintiff McCoy was joined by Anesthesiology, P.C. The District Court granted judgment to Dr. McCoybut found thatbecause Anesthesiology had filed itsclaim
on November 2, 1987,before the 1987 amendments to the insurance code became effective, its claim was barred. Anesthesiology did not appeal that decision and is not a party to theseproceedings. Appellant argues that the physicians' lien statutes of 1979 were not affected by the 1987 amendments to the Montana Insurance Code, and that appellanttsimmunity from physicianst liens still exists. Thephysicianstlien statutes,5 71-3-1111 through 5 71- 3-1118, MCA, were enacted in 1979. They provide in part: If a person is an insured or a beneficiary under insurancewhichprovides coverage in the event of injury or disease, a physician 

# .. . upon giving the required notice of lien, has a lien for the value of services rendered on all proceeds or payments. 

# . . 

# . Section 71-3-1114(2), MCA. At the time the lien statutes were enacted,health corporations such as Blue Cross were specificallyexcluded from the guidelines of Title 33 of theMontana Code (the Montana Insurance Code). The corporations were excluded by the 1979 insurance code. Specifically the legislatureprovided: This code shall not apply tohealth service corporations to the extent that the existence and operations of such corporations are authorized by Title 35, chapter 2, and related sections of the Montana Code Annotated. Section 33-1-102(3), MCA. In 1987 the legislature amended the insurance code to include health service corporations. Forthepurposes of this code,the followingdefinitionsapply unless the context requires otherwise:

(6) I1Insurerg1 includes 

# . . . 

# . . a health service corporation in the provisions listed in 33-30-102. Section 33-1-201, MCA. The District Court found that because health service corporations were excluded from the insurance code from 1979 to 1987,they were not subject to physicians liens during that time. The court then found that the legislature intended thatphysicians liens apply to health service corporations after the 1987 amendments. Appellant argues otherwise, contending that the legislature never intended the 1987 amendments to the insurance code to imply that health service corporations are now subject to physicians' lien statutes of 1979. We agreewith appellant. This Court will not intrude in areasproperly theprovince of the legislature. We have consistentlyheld that only in extreme circumstances is it appropriate to construe a subsequent statute against a former onewithout express legislative direction. "The presumption is that the legislature passes a law with deliberation andwith a fullknowledgeof all existing oneson the same subject,and does not intend to interfere with or abrogate a former law relating to the samematter unless the repugnancy between the two is irreconcilable." London G. & 

### A. Co., v. Industrial Accident Board, 82 Mont. 304, 310, 266 

### P. 1103, 1105 (1928). The Court followedthe London reasoning in Fletcher

### v. Paige, 124Mont. 114, 220 P.2d 484 (1950): "It will not be presumed that a subsequent enactment of the legislature intended to repeal former laws upon the subjectwhen former lawswere notmentioned.I1 Fletcher at 119, 220 P.2d at 487. In the case before us, the legislature failed tomention the physiciansvlien statuteswhen it amended the code in 1987. That the legislature intended the amendments to apply only to the insurance code is evidenced by the introductionto thedefinitions of the code, which states: IvForthe PurPoses of this code, the followingdefinitionsapply 

# . . . (Emphasisadded.) Section 33- 1-201, MCA. By leaving intact these introductory words, the legislature clearly intended that the 1987 amendments be limited to the insurance code. Had the legislature intended to amend the physiciansv lien statutes when it revised the insurance code, it would have expressly stated that intention. Unless and until the legislature specifically amends the physicians' lien statutes, we will not infer an intent to do so. Reversed and remanded for further proceedings in accordance with this opinion.

We Concur:Chief Justice

Justices

Justice Sheehy did not participate in these proceedings.