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Andrews v. Samaritan Health System12/11/2001
erial to the perfection of a lien, it is beyond the remedial scope of equity . . . to protect the lien claimant against the untoward consequences of what may be and probably was his own neglect." 114 Ariz. at 432, 561 P.2d at 756. Following Lewis, our next consideration is whether the untimely recording is material to the perfection of these liens.
If we were determining priority among multiple lienholders, timeliness would, of course, be material. Here, there are no other potential creditors. The money at issue is either going to the plaintiffs or to the hospitals. The hospitals assert that timeliness is not material here because plaintiffs had actual notice of the full charges of their treatments, as was evidenced by the personal injury lawsuits filed seeking recovery of those amounts.
We agree that if a patient has actual notice of the full charges of treatment, he or she is not prejudiced by the untimely filing of the lien. One who has "actual notice is not prejudiced by and may not complain of the failure to receive statutory notice." In the Matter of the Estate of Ivester, 168 Ariz. 323, 327, 812 P.2d 1141, 1145 (App. 1991). Thus, as to the patient with actual notice of the hospital's lien, the purpose of the recording statute is not frustrated by the untimely recording of the medical lien. See Macon-Bibb, 793 F. Supp. at 323 (where medical lien was untimely pursuant to the perfection statute, hospital could assert lien where patient had actual notice before settlement); Guin, 583 So. 2d at 1319 (citations omitted) (declining to defeat hospital's lien under perfection statute where there were no competing creditors to be prejudiced by the late filing because the perfection statute is for the benefit of third-parties, not the patient); Pub. Health Trust, 509 So. 2d at 1234. It is undisputed that plaintiffs here had actual notice of the full charges.
Arizona's medical lien statute requires timely filing only to "perfect" the lien. A.R.S. § 33-932. The perfection, however, does not alter the existence of the lien which arises under a different statute. See A.R.S. § 33-931.
We will not apply the terms of the statute so strictly as to defeat the hospitals' liens where plaintiffs had actual notice of the liens and, thus, were not prejudiced by an untimely filing. In such cases the purpose of the recording statute is served. We affirm the grant of summary judgment in favor of the hospitals on this issue.
VI. RESTITUTION AND VOLUNTARY PAYMENTS
The hospitals argue that Weirick's and Smith's claims for conversion and unjust enrichment are barred by the voluntary payment rule. The trial court did not address this issue because it found the liens were enforceable and, therefore, found there was no conversion or unjust enrichment. Because we, likewise, hold that the liens were valid and enforceable we need not address this issue.
VII. ATTORNEYS' FEES ON APPEAL
Plaintiffs request attorneys' fees on appeal pursuant to A.R.S. §§ 12-341.01, 33-934, and 33-936. Plaintiffs' claims against the hospitals are based on statutory medical liens and do not arise out of contract. Therefore, plaintiffs are not entitled to attorneys' fees under A.R.S. § 12-341.01(A). Section 33-934 authorizes attorneys' fees only for lien claimants who successfully enforce medical liens; A.R.S. § 33-936 does not authorize an award of attorneys' fees at all. Accordingly, plaintiffs have no basis for an award of fees and we deny the request. The hospitals did not request fees.
CONCLUSION
We affirm the judgment in favor of the hospitals. We deny plaintiffs' request for attorneys' fees on appeal.
J
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