Appeal
from the Superior Court in Maricopa County No. CV2017-002466
The Honorable Kerstin G. LeMaire, Judge
Gammage & Burnham PLC, Phoenix By Richard B. Burnham,
Cameron C. Artigue, Christopher L. Hering Counsel for
Plaintiff/Appellant
Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix By
Bradley R. Jardine Counsel for Defendant/Appellee
Chief
Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Kent E. Cattani and Judge James P. Beene joined.
OPINION
THUMMA, CHIEF JUDGE
¶1
The dispositive issue in this appeal is whether payments
under optional medical payments coverage in an automobile
insurance policy (what the parties call "medpay
coverage") are "health insurance" and,
therefore, not subject to a health care provider lien. As
discussed below, because medpay coverage is not health
insurance for purposes of the lien statute, those payments
are subject to the health care provider lien. Accordingly,
the grant of defendant Farmers Insurance Company of
Arizona's motion to dismiss is vacated and this matter is
remanded.
FACTS[1] AND PROCEDURAL
HISTORY
¶2
Farmers issued an automobile insurance policy to Bethanie
Elliott that included optional medpay coverage. Plaintiff
Dignity Health, doing business as Mercy Gilbert Medical
Center, provided Elliott medical services after she was
injured in a car accident. The usual and customary charges
for those services exceeded $160, 000. Dignity perfected and
recorded a health care provider lien for more than $140, 000
to secure payment for those services. See Ariz. Rev.
Stat. (A.R.S.) § 33-931 (2019).[2]Notwithstanding that lien,
Farmers directly paid Elliott $99, 000 in medpay benefits
under her automobile insurance policy.
¶3
Dignity timely filed this lien enforcement action, claiming
Farmers' payment to Elliott violated the lien. Farmers
successfully moved to dismiss for failure to state a claim,
arguing its payment was not subject to the lien. Dignity
timely appealed from the resulting final judgment.
See Ariz. R. Civ. P. 54(c). This court has
jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1) and
-2101(A)(1).
DISCUSSION
¶4
Under A.R.S. § 33-931, a health care provider may obtain
a lien to secure payment of customary charges for services
provided to an injured person, with certain express
exceptions to the scope of such a lien:
A lien pursuant to this section extends to all claims of
liability or indemnity, except health insurance and
underinsured and uninsured motorist coverage as defined in
§ 20-259.01, for damages accruing to the person to
whom the services are rendered . . . on account of the
injuries that gave rise to the claims and that required the
services.
A.R.S. § 33-931(A) (emphasis added). Thus, if
Farmers' payment of medpay benefits to Elliott was a
health insurance benefit, it was exempt from Dignity's
lien. But if the payment was not a health insurance benefit,
it violated the lien.
¶5
Determining whether medpay is health insurance is complicated
by the record and arguments on appeal. The insurance policy
containing the medpay coverage is not included in the record.
Moreover, the parties cite no statutory definition of
"health insurance" or "medpay coverage,"
and this court has found no such definitions applicable to
Section 33-931(A). Although aspects of medpay coverage have
been the subject of litigation in Arizona for decades,
...