# FILED September 09, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ GLORIA SPIVEY, as Administratrix of the Estate of Michelle Christi Spivey, and GLORIA SPIVEY and LARRY SPIVEY, as g

uardians and ne

xt friendof JESSICA MICHELLE SPIVEYROBINSON, Plaintiff-Appellee, Obion Circuit No. 6-16 Vs. C.A. No. 02A01-9704-CV-00075 JASON D. ANDERSON,

Defend ant-Thir

d-Party Plaintiff-Appellee, JAMES C. R OBINSON, JR ., and SHELBY COUNTY HEALTH CARE CORPORAT ION d/b/a REGI ONAL MEDICAL CENTER AT MEMPHIS,

Defend ants-Thi

rd-Part y Defend ants-App ellants.

_________________

__________________________________________________________ _ FROM THE OBION COUNTY CIRCUIT COURT THE HONORABLE

WILLIAM B. A CREE, JR., JUDGE

Damon E. C ampbell; C onley Camp bell Moss Smith of Uni on City Guardian ad litem for Jessica Michelle Robinson Gary C. Mc Cullough; Mc Cullough a nd McCullou gh of Memphis For Appellants

REVERSED AND REM ANDED Opinion fi led: W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This case involves a hospital’s lien on the proceeds from a wrongful death suit. Thirdpartydefendant, Shelby County Health CareCorporation d/b/a The Regional Medical Center at Memphis (the Med), appeals the order of the trial court holding that the proceeds of the wrongful2

death settlement were not subject to the Med’s hospital lien. On December 23, 1995, Michelle Christi Spivey was killed while riding as a passenger in a car dr iven by Ja

mes C. Robinson, Jr., which was involved in an accident in Obion County, Tennessee. The Robinson vehicle collided with an automobile driven by Jason D. Alexa nder. Michelle Christi Spivey was treated for injuries at the Med following the accident, but she later died from her injuries. On January 26, 1996, the Med filed “Affidavit for Hospital Lien” in the Obion County Circuit Court Clerk’s office pursuant to T.C.A. § 29-22-101 (1980) for medical expenses totaling $19,082.54. On April 12, 1996, Gloria Spivey, as administratrix of the estate o f Mich elle Chri sti Spivey, and Gloria and Larry Spivey, as guardians and next friend of JessicaMichelle SpiveyRobinson, a minor, (t he S piveys), filed a complaint, in the Obion County Circuit Court for wrongful death ag ainst Jaso n D. Ande rson. The

deceas ed, Miche

lle Christi

S piv ey, was the mother of Jessica Michelle Spivey-Robinson, and James Robinson is the putative father of the minor child. On August 5, 1996, Jason D. Anderson and Tennessee Farmers Mutual Insur ance Company, the uninsu

red motor

ist carr ier, file d a “Petit

ion for Approval of Compromised Settlementof Minor’s Claim for Wrongful Death,” in the amount of $50,000, $25,000.00 to be paid on behalf of Jason Ander son and $ 25,000.00 to be paid

on behalf

of Tenne ssee Far

mers. On August 12, 1996, the Spive ys fil ed an amendment to the petition challenging James Robinson’s standing before the court and asserting that the settlement was free

from the Med’s lien by virtue

of T.C.A. § 20-5-10 6 (1994). The Spive ys’ amendm ent requested that James Robinson and the Med be added as defendants. The trial court

tentatively approved the settlement and entered a disbursement order on August 13, 1996. The order provides, inter alia , that the settlement funds are not subject

to the Med’s lien. On Septembe

r 18, 1996 , Jason Anderson f iled a “M otion to All ow Third Pa rty C omplaint for Declaratory Judgment.” The trial court granted his motion to include James Robinson and the Med as defe

ndants, a nd on Septe

mber 26, 1 996, Jaso n Anders on filed a third par ty complaint for declar atory jud gment aga

inst James Robinson and the Med. The complaint requests the trial court to decla re the r elative r ights of Ja

mes Ro binson and the Med to the funds that were1 James Robinson did not answer the third party complaint, and on March 13, 1997,

the trial court en tered a default judgment d

ismissing a

ny claim th at he may

have ha d against Jason Ale xander a nd Tenne ssee Far

mers. Ja mes Robinso n is not a pa rty to this a

ppeal. 3 approve d as a full and fina l settleme nt in the wr

ongful de ath suit. 1 The trial court entered an order approving the c ompromise settlement on October 15, 1996, relieving Jason Anderson and Tennessee Farmer s from any l iability to Jessica Michelle Spivey-Robinson and to the Med. On October 17, 1996, the Med filed an answer to the third partycomplaint asserting that it was entitled to a portion of the proceeds of the wrongful death suit pursuant to the hospitals’ liens statute, T.C.A. § 29-22-101 (1980). On February 21, 1997, the trial court entered a judgment ho lding that the settlement proceeds were not subject to the Med’s lien by v irtue of T.C.A. § 20-5-106(b) (1994), which provides th at th e cause of action passes to the beneficia ry free from claims of creditors of the estate. The Med appeals the order of the trial court and pres ents one i ssue for review: whether the trial court erred in holding that the proceeds of the wrongful death settlement are not subject to its hospital lien. The Spiveys filed a brief on behalf of Jessica Michelle Spivey-Robinson and add two additional issues: 1) whether the Med properly perfected its hospital lien, an d 2 ) whether the Med c an reco ver more than one- third of th

e settlem ent proc eeds. The f acts of t his case are not in dispute, and we must resolve a conflict between the wrongful death statute and the hospitals’ liens statute. The wrongful dea

th statute states, (a) The right of action which a p erson, who dies from injuries received from another, or w hose death is caused by the w rongful act, omission, or killing by another, would have ha d ag ainst the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the pers on’s dea th but shall pass to the person’s sur viving s pouse and, in case there is no surviving spouse, to the person’s children or next of kin; or to the person’s personal representative, for the benefit of the pe rson’s surviving spouse or next of kin; or to the person’s natural parents or

parent or next of kin if at th

e time of d

eath dec edent wa s in the custody of the natural parents or parent and had not bee n leg al ly surrende red b y them, otherwise to the person’s legally adoptive parentsor pare

nt, or to the administ

rator fo r the use and bene fit of the adoptive

parentsor pare

nt; the funds r

ecover ed in eith e r case to be free from the claim s of credi tors . (b) In any ca se involving a beneficiary who is a minor or who is legally incompet ent, if the court finds i t is in the be st interest of such beneficiary, the court in its discretion may4 authorize all or any portion of the fund s recovered for such be ne ficiary to be added to any trust or trusts established for the benefit of such beneficiary, wherever situated, whether such trus t was created by t

h e person whose death was caused by the wrongf ul action or omission or by any other person. The fu nd s recovered shall be for

the bene fit of such b eneficia ry and shall be free from the claim s of credi tors. T.C.A. § 20-5-106 (a), (b) (1994) (emphasis added)

. The hospitals’ lie

ns statute states, (a) Every person, firm, association, corporation, institution, or any go vernmen tal unit, including th

e sta te of Tennessee, any co u nty or municipalities operating and maintaining a hospita

l in this sta

te, shall have a li en for a ll reasona ble and necessary charges for hospital care, treatment and maintenance of ill or in

jured pe rsons upon any and all causes of action, suits, cl aim s, counterclaims or demands accruing to the person to whom such care, treatment or maintenance w as furnished, or accruing to the legal representatives of suc h person in the case of his or her death, on ac count of illness or injuries giving rise to such causes of action or claims and which necessitated such hospital care, treatment and maintena nce. (b) The hospital lien, howeve r, shal l not apply to any amount in excess of one-third (1/3) of the d amages obtained or recovered by such person by j ud gment, se ttlement o r compro mise rendered or entered into by such person or his or her legal representative by virtue of the cause of a ction accruing thereto. (c ) The lien herein created shall be subject an d subordina te to any attorney’s lien whe ther by contract, suit or ju dgment upon such claim or cause of action and shall not be applica ble to accident s or injuries within the purview of the Tennessee Work ers’ Compensation Law, compiled in chapters 9 -12 of title 50. Any such lien arising out of a motor vehicl e accident shall notta ke priority over a mechanic’s lien or prior record ed lien up on a motor

vehicle involved in said ac cident. T.C.A. § 29-22-101 (1980) (emphasis added). In a wro ngful dea

th suit, the recovery passes to thestatutory beneficiary free from any claims of cred

itors of th e estate because the statut

ory bene ficiary is the rea

l party in interest. Memphis Street Ry. Co. v. Cooper , 313 S.W.2d 4 44, 448 (T enn. 1958 ). The wr ongful de ath statute is in the nat ure of th e sta tutes of descent and distribution. See Dilwor th v. Tisdal

e Transfer & Storage Co. , 354 S.W.2d 261, 262 (Tenn. 1962). However, neither of these cases, which were relied u pon by th e trial court, deals with a hospital’s lien, and both were decided before the General Assembly passed the hospitals’ liens statute. T.C.A

. § 1-3-103 (1994) provides: “If provisions of different titles or cha pters of th e code appear to contravene each oth er, the p rovisions of each

title or chapt

er shall p revail a s to all matters and questions growing out of the subject matter of that title or chapter.” T.C.A. § 1-3-5

103 (1994). A specific statute or a special provision of a particular statute controls a general provision in another statute or a general provision in the same statute. Valley Fidelity Bank & Trust Co.

v. Ayers , 861 S.W.2d 366, 369 (Tenn. App. 1993). The wrongful death statute is a gener al statute dealing with recovery for an injury res ulti ng in death, and the subsequently enacted hospitals’ li ens statute specifically establishes a lien for recove ry of medical expenses. In Holston Valley Hospital and Medical Center v. Moffitt, et al , No. 03A01-9608-CV-00271, Courtof Appeals, March 31, 1997, the Eastern Section of this Cour

t, in conside

ring the p recise issue before us, said:

The Hospi

tal defe nds the Tr

ial Court’ s action w it h regard t o T.C.A. 20-5-106(a) upon the g round that provisions of the Hospital Lien Statute, having been enacted subsequent to the one providing the funds , would “be free from the c laims of c

reditors ” repealed by implication that provision insof ar a s hospitals are concerned. Chief

Justice G reen, on e of the p remiere jurists of this State, recognized the Rule almost three-quarters of a century ago, in Southern Construction Co. v. Hallibu rton , 149 Tenn. 319, 329, 258 S.W. 409, 412 (1924), wherein he stated the following: Although a lateract may not cover the entire subject-matter

of an earlier act , nor purpo rt to provide a new system, if the later act is repugnant and irreco ncilable

on a part

icular p oint, it w il l operate as a repeal by implication to the extent of the repugnance and c onflict

. Baily v. D rane , 96 Tenn. 16, 3 3 S.W. 573. Balden v. State, 122 Tenn. 704, 127 S.W. 134. The rule has been affirmed in a number of cases, including the relative ly recent case of State v. Palmer , 902 S.W.2d 391 (Tenn. 1995), and an earlier case, Kennon v. Com mercial Standard Ins. Co. , 52 Tenn. App. 521, 376 S.W.2d 703 (1963). Although the Trial Judge did not specific ally so state, implicit in his determination is a findin g that the provisions of the Hospital Lien Statu

te repealed by implication the provision of 20- 5-106 tha t funds recovere d would be free of claims of credito rs. We concur with the implicit finding of the Trial Court that the Code Sections touching on the ques tion are irreconcilable and that the former was repealed by the latter

. Id. at 3-4. We agree with Holston to the extent it holds that the p rovisions of the hospitals’ lien statute are irreconcilable with the provisions of T.C.A. § 20-5-106 that funds recovered are free from claims of creditors. Therefore, we hold that such provisions of T.C.A. § 20-5-106 do not6

applyin the face of an

applicable and properly perfecte d hospital lien authorized by T.C.A. § 29- 22-101, et seq. (1980 and Supp. 1996). In their brief, the Spiveys arg ue that th is case s hould be r

emanded to the tria

l court to determine the issue

of whether the Me d’s l ien was properly perfected. The tria l court did not reach this issue because it decided that the wrongful death statute preva iled over the hospit

als’ liens statute. A hospital’s lien must be perfected in accordance with T.C.A. § 29-22-102: (a) In order to perfect such lien, the agent or o pe rator of the hospital, before or within one hundred twenty (120) days after any such person shall have been disc harged t herefr om, shall file in the offic e of the c lerk of th e circu it court of

the count

y in which the hospital is located, and in the county wherei n the patient resides , if a re sident of

this state , a ver ified sta

tement in writing setting f

orth th e name a

nd addre ss of the p atient asit appears on the records of the hospital, and the name and addr ess of the oper ator the reof, the dates o f admissio n and dis c harge of the patient therefrom, the amoun t cla imed to be due for such hospital care, a

nd to the be st of the c laima nt ’s knowledge, the names and addr

esses of persons, firms or corporations claimed by such ill orinjured person or by his or her legal representa tive, to be liable for dama ges aris ing from su ch illnessor injurie s. (b) A copy of the claim shall, within ten (10 ) days fr om the fili n g thereo f be sent

by regist ered ma il, postag e prepa

id, to eachperson, firm or corporation so claimed to be liable on account of such illn ess or inj uries, at the address given in the s tatem ent, and to the attorney, or attorneys, representing the person to whom services wer e rendered by the hospital if such attorney, or attorn

eys, are known to th

e claima nt o r could, with reasona ble dilige nce, be known to th

e claima nt. T.C.A. § 29-22-102 (a), (b) (Supp. 1996). The record

containsthe “Aff

idavit for Hospital Lien” filed

by the Med in this case. The lien appear s to comply

withthe statute and directly tracks its language. Moreover, T.C.A. § 29- 22-102 (d ) provide s: 29-22-102. Perfecting lien - Filing and notice - conte sting - Effect of settlement or payment. -

* * * (d) Any person desiring to contest such a lien or the reasona bleness of the charge s t hereof may do so by filing a motion to quash or reduce the same in the circuit cour t of the county in which the lien was perfe cte d, making all other parties in interest respondents thereto. An y such motion may be heard in term time o

r vacat ion and at

such time a

nd place as m ay be fixed by o

rder of the cour t. Appellee s’ only contention in the tria l court wa s that the hospitals’ lien statu te is not applicable to wrongful death actions. Appellees have otherwise f ailed to contest the lien or the7

reasona bleness of the charges in the trial court, and the issue may notbe raise d for the

first time

on appeal. Simpson v. Frontier Community Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991). The Spiveys al so argue

that the Med is entitle d to only one -third of th e se ttlement procee ds. The ho spi tals’ liens statute specifically addresses this issue: “The hospital lien, however, shall not a

pply to any amount in excess of one-third (1/3) of the damages obtained or recovered by such person by judgment, settlement or compromise rendered or ente red into by such person or his or her legal representative by virtue of the ca use of action accruing thereto.” T.C.A. § 29-22-101(b) (1980). The Med does not dispute that it is entitled to only one-third of the $50,000.00 settleme

nt in this ca se. We f

ind that pu

rsuant to the hospitals’ liens statute the Med is entitled to judgment of $16,666.66. Accordingly, the order of the trialcourt is reversed, and judgment is entered for the Med in th e amount of $16,666.66. This case is remanded to the trial court for such furthe r procee dings as ma

y be nec essary. Costs of ap peal ar e assess ed again st appellees.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE