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Allstate Fire & Casualty Insurance Co. v. Kennestone Hospital, Inc.

Court of Appeals of Georgia, Fifth Division

January 3, 2019

ALLSTATE FIRE & CASUALTY INSURANCE COMPANY
v.
KENNESTONE HOSPITAL, INC.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFadden, Presiding Judge.

         At issue are the requirements for perfecting a medical services lien set out at OCGA § 44-14-471, particularly the requirement of written notice to the alleged tortfeasor and his insurer. The claimant here did not provide such notice. But the notice requirement is conditioned by the phrase "to the best of the claimant's knowledge[.]" OCGA § 44-14-471 (a) (1). The trial court held that the undisputed evidence of the claimant's due diligence was sufficient to show that this failure should not invalidate the lien. We affirm.

         The claimant is Kennestone Hospital, Inc. d/b/a WellStar Kennestone Hospital. It brought suit against Allstate Fire & Casualty Insurance Company to enforce its lien for medical treatment and services provided to David Pruitt following a motor vehicle collision with Allstate's insured, Ginger Gentry. The parties moved for summary judgment. Allstate argued that Kennestone failed to perfect its lien under OCGA § 44-14-471, and Kennestone argued that it had satisfied all requirements to perfect its lien. The trial court granted summary judgment to Kennestone on its claims. Allstate filed this direct appeal.

         We note at the outset that we have jurisdiction over this direct appeal, even thought the amount in dispute is less than $10, 000. The requirement that "[a]ppeals in all actions for damages in which the judgment is $10, 000.00 or less" be taken by application, OCGA § 5-6-35 (a) (6), is not applicable. An action on a lien is not an action for damages, so even if the amount of an award is less than $10, 000, an appellant is not required to pursue a discretionary appeal. Kelly v. Pierce Roofing Co., 220 Ga.App. 391, 391-392 (469 S.E.2d 469) (1996).

         The parties stipulated to the following facts. On January 20, 2012, Kennestone mailed to Pruitt, the patient who had received hospital services, a notice of its intent to file a lien. Kennestone filed the lien on February 9, 2012.

         Before filing the lien, Kennestone attempted to identify the alleged tortfeasor and her insurer by telephoning Pruitt and by twice attempting to locate the accident report. It left a voice mail for Pruitt, which was not returned, and the Georgia Department of Public Safety informed Kennestone that no accident report had been found.

         On March 6, 2012, after it had filed the lien, Kennestone was made aware that Pruitt had hired an attorney to potentially pursue filing a personal injury lawsuit. On that date as well as on April 27, 2012, Kennestone attempted to contact the attorney but failed to make contact. It again attempted to contact the attorney on June 12, 2012, and September 19, 2012.

         Kennestone made further unsuccessful attempts to locate the accident report on March 6, 2012, April 27, 2012, June 12, 2012, June 13, 2012, September 19, 2012, and September 28, 2012. On December 13, 2012, Kennestone received the accident report which identified Gentry and Allstate. It sent a notice of the lien to Allstate on December 20, 2012. It never sent notice to Gentry.

         Allstate argues that OCGA § 44-14-471 required Kennestone to send notice of the lien to Gentry. Kennestone counters that during the time period for providing notice, it had not identified the tortfeasor, despite exercising due diligence, so it had nowhere to send the notice. It also argues that the statute does not require notice to the tortfeasor after the lien has been filed.

         In pertinent part, OCGA § 44-14-471 (a) provides that in order to perfect a lien for the provision of medical services, a hospital

(1) [s]hall, not less than 15 days prior to the date of filing the statement required under paragraph (2) of this subsection, provide written notice to the patient and, to the best of the claimant's knowledge, the persons . . . and their insurers claimed by the injured person or the legal representative of the injured person to be liable for damages arising from the injuries . . .; and
(2) [s]hall file in the office of the clerk of the superior court of the county in which the hospital . . . is located and in the county wherein the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of the hospital . . .; the name and location of the hospital . . .; the dates of admission and discharge of the patient therefrom . . .; and the amount claimed to be due for the hospital . . . .

OCGA § 44-14-471 (a). Hospitals must file the statements described in subsection (a) (2) within 75 days after the patient is discharged from the hospital. OCGA § 44-14-471 (a) (2) (A). Since the written notice of (a) (1) must be provided not less than 15 days before the verified statement of (a) (2) is filed, and the verified statement of (a) (2) must be filed within 75 days of a patient's ...


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