                    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
                                                      FILED
SPIVEY, as guardians and next friend
of JESSICA MICHELLE SPIVEY-                          September 09, 1997
ROBINSON,
                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
               Plaintiff-Appellee,
                                                      Obion Circuit No. 6-16
Vs.                                                   C.A. No. 02A01-9704-CV-00075

JASON D. ANDERSON,

               Defendant-Third-Party
               Plaintiff-Appellee,

JAMES C. ROBINSON, JR., and
SHELBY COUNTY HEALTH CARE
CORPORATION d/b/a REGIONAL
MEDICAL CENTER AT MEMPHIS,

            Defendants-Third-Party
            Defendants-Appellants.
____________________________________________________________________________

                  FROM THE OBION COUNTY CIRCUIT COURT
                THE HONORABLE WILLIAM B. ACREE, JR., JUDGE


                        Damon E. Campbell; Conley Campbell Moss
                                     Smith of Union City
                       Guardian ad litem for Jessica Michelle Robinson

              Gary C. McCullough; McCullough and McCullough of Memphis
                                   For Appellants


                              REVERSED AND REMANDED

                                        Opinion filed:


                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
     This case involves a hospital’s lien on the proceeds from a wrongful death suit. Third-

party defendant, Shelby County Health Care Corporation d/b/a The Regional Medical Center at

Memphis (the Med), appeals the order of the trial court holding that the proceeds of the wrongful
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 driven by James C. Robinson, Jr., which was involved in an accident in Obion County,

Tennessee. The Robinson vehicle collided with an automobile driven by Jason D. Alexander.

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 of Michelle Christi

Spivey, and Gloria and Larry Spivey, as guardians and next friend of Jessica Michelle Spivey-

Robinson, a minor, (the Spiveys), filed a complaint, in the Obion County Circuit Court for

wrongful death against Jason D. Anderson. The deceased, Michelle Christi Spivey, 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 Insurance

Company, the uninsured motorist carrier, filed a “Petition for Approval of Compromised

Settlement of Minor’s Claim for Wrongful Death,” in the amount of $50,000, $25,000.00 to be

paid on behalf of Jason Anderson and $25,000.00 to be paid on behalf of Tennessee Farmers.

On August 12, 1996, the Spiveys filed 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. § 20-5-106 (1994). The Spiveys’ amendment 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 September 18, 1996, Jason Anderson filed a “Motion to Allow Third Party Complaint

for Declaratory Judgment.” The trial court granted his motion to include James Robinson and

the Med as defendants, and on September 26, 1996, Jason Anderson filed a third party complaint

for declaratory judgment against James Robinson and the Med. The complaint requests the trial

court to declare the relative rights of James Robinson and the Med to the funds that were




                                               2
approved as a full and final settlement in the wrongful death suit.1

          The trial court entered an order approving the compromise settlement on October 15,

1996, relieving Jason Anderson and Tennessee Farmers from any liability to Jessica Michelle

Spivey-Robinson and to the Med. On October 17, 1996, the Med filed an answer to the third

party complaint 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 holding that the settlement

proceeds were not subject to the Med’s lien by virtue of T.C.A. § 20-5-106(b) (1994), which

provides that the cause of action passes to the beneficiary free from claims of creditors of the

estate.

          The Med appeals the order of the trial court and presents one issue 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, and 2)

whether the Med can recover more than one-third of the settlement proceeds.

          The facts of this case are not in dispute, and we must resolve a conflict between the

wrongful death statute and the hospitals’ liens statute.

          The wrongful death statute states,

                         (a) The right of action which a person, who dies from
                 injuries received from another, or whose death is caused by the
                 wrongful act, omission, or killing by another, would have had
                 against the wrongdoer, in case death had not ensued, shall not
                 abate or be extinguished by the person’s death but shall pass to
                 the person’s surviving spouse 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 person’s surviving
                 spouse or next of kin; or to the person’s natural parents or parent
                 or next of kin if at the time of death decedent was in the custody
                 of the natural parents or parent and had not been legally
                 surrendered by them, otherwise to the person’s legally adoptive
                 parents or parent, or to the administrator for the use and benefit
                 of the adoptive parents or parent; the funds recovered in either
                 case to be free from the claims of creditors.
                         (b) In any case involving a beneficiary who is a minor or
                 who is legally incompetent, if the court finds it is in the best
                 interest of such beneficiary, the court in its discretion may


          1
           James Robinson did not answer the third party complaint, and on March 13, 1997,
the trial court entered a default judgment dismissing any claim that he may have had against
Jason Alexander and Tennessee Farmers. James Robinson is not a party to this appeal.

                                                 3
               authorize all or any portion of the funds recovered for such
               beneficiary to be added to any trust or trusts established for the
               benefit of such beneficiary, wherever situated, whether such trust
               was created by the person whose death was caused by the
               wrongful action or omission or by any other person. The funds
               recovered shall be for the benefit of such beneficiary and shall be
               free from the claims of creditors.

T.C.A. § 20-5-106 (a), (b) (1994) (emphasis added).

       The hospitals’ liens statute states,

                        (a) Every person, firm, association, corporation,
               institution, or any governmental unit, including the state of
               Tennessee, any county or municipalities operating and
               maintaining a hospital in this state, shall have a lien for all
               reasonable and necessary charges for hospital care, treatment and
               maintenance of ill or injured persons upon any and all causes of
               action, suits, claims, counterclaims or demands accruing to the
               person to whom such care, treatment or maintenance was
               furnished, or accruing to the legal representatives of such person
               in the case of his or her death, on account of illness or injuries
               giving rise to such causes of action or claims and which
               necessitated such hospital care, treatment and maintenance.
                        (b) The hospital lien, however, shall not apply 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 entered into by such person or his or her legal
               representative by virtue of the cause of action accruing thereto.
                        (c) The lien herein created shall be subject and
               subordinate to any attorney’s lien whether by contract, suit or
               judgment upon such claim or cause of action and shall not be
               applicable to accidents or injuries within the purview of the
               Tennessee Workers’ Compensation Law, compiled in chapters
               9-12 of title 50. Any such lien arising out of a motor vehicle
               accident shall not take priority over a mechanic’s lien or prior
               recorded lien upon a motor vehicle involved in said accident.

T.C.A. § 29-22-101 (1980) (emphasis added).

       In a wrongful death suit, the recovery passes to the statutory beneficiary free from any

claims of creditors of the estate because the statutory beneficiary is the real party in interest.

Memphis Street Ry. Co. v. Cooper, 313 S.W.2d 444, 448 (Tenn. 1958). The wrongful death

statute is in the nature of the statutes of descent and distribution. See Dilworth v. Tisdale

Transfer & Storage Co., 354 S.W.2d 261, 262 (Tenn. 1962). However, neither of these cases,

which were relied upon by the 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 chapters of the

code appear to contravene each other, the provisions of each title or chapter shall prevail as to

all matters and questions growing out of the subject matter of that title or chapter.” T.C.A. § 1-3-


                                                 4
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 general

statute dealing with recovery for an injury resulting in death, and the subsequently enacted

hospitals’ liens statute specifically establishes a lien for recovery of medical expenses. In

Holston Valley Hospital and Medical Center v. Moffitt, et al, No. 03A01-9608-CV-00271,

Court of Appeals, March 31, 1997, the Eastern Section of this Court, in considering the precise

issue before us, said:

                   The Hospital defends the Trial Court’s action with regard to
                T.C.A. 20-5-106(a) upon the ground that provisions of the
                Hospital Lien Statute, having been enacted subsequent to the one
                providing the funds, would “be free from the claims of creditors”
                repealed by implication that provision insofar as hospitals are
                concerned. Chief Justice Green, one of the premiere jurists of this
                State, recognized the Rule almost three-quarters of a century ago,
                in Southern Construction Co. v. Halliburton, 149 Tenn. 319,
                329, 258 S.W. 409, 412 (1924), wherein he stated the following:

                         Although a later act may not cover the entire
                         subject-matter of an earlier act, nor purport to
                         provide a new system, if the later act is repugnant
                         and irreconcilable on a particular point, it will
                         operate as a repeal by implication to the extent of
                         the repugnance and conflict. Baily v. Drane, 96
                         Tenn. 16, 33 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
                relatively recent case of State v. Palmer, 902 S.W.2d 391 (Tenn.
                1995), and an earlier case, Kennon v. Commercial Standard Ins.
                Co., 52 Tenn. App. 521, 376 S.W.2d 703 (1963).

                  Although the Trial Judge did not specifically so state, implicit
                in his determination is a finding that the provisions of the
                Hospital Lien Statute repealed by implication the provision of 20-
                5-106 that funds recovered would be free of claims of creditors.

                  We concur with the implicit finding of the Trial Court that the
                Code Sections touching on the question 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 provisions 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 not



                                                  5
apply in the face of an applicable and properly perfected hospital lien authorized by T.C.A. § 29-

22-101, et seq. (1980 and Supp. 1996).

       In their brief, the Spiveys argue that this case should be remanded to the trial court to

determine the issue of whether the Med’s lien was properly perfected. The trial court did not

reach this issue because it decided that the wrongful death statute prevailed over the hospitals’

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 operator of
               the hospital, before or within one hundred twenty (120) days after
               any such person shall have been discharged therefrom, shall file
               in the office of the clerk of the circuit 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 in
               writing setting forth the name and address of the patient as it
               appears on the records of the hospital, and the name and address
               of the operator thereof, the dates of admission and discharge of
               the patient therefrom, the amount claimed to be due for such
               hospital care, and to the best of the claimant’s knowledge, the
               names and addresses of persons, firms or corporations claimed by
               such ill or injured person or by his or her legal representative, to
               be liable for damages arising from such illness or injuries.
                        (b) A copy of the claim shall, within ten (10) days from
               the filing thereof be sent by registered mail, postage prepaid, to
               each person, firm or corporation so claimed to be liable on
               account of such illness or injuries, at the address given in the
               statement, and to the attorney, or attorneys, representing the
               person to whom services were rendered by the hospital if such
               attorney, or attorneys, are known to the claimant or could, with
               reasonable diligence, be known to the claimant.

T.C.A. § 29-22-102 (a), (b) (Supp. 1996).

       The record contains the “Affidavit for Hospital Lien” filed by the Med in this case. The

lien appears to comply with the statute and directly tracks its language. Moreover, T.C.A. § 29-

22-102 (d) provides:

               29-22-102. Perfecting lien - Filing and notice - contesting -
               Effect of settlement or payment. -

                       *               *               *

               (d) Any person desiring to contest such a lien or the
               reasonableness of the charges thereof may do so by filing a
               motion to quash or reduce the same in the circuit court of the
               county in which the lien was perfected, making all other parties
               in interest respondents thereto. Any such motion may be heard
               in term time or vacation and at such time and place as maybe
               fixed by order of the court.

Appellees’ only contention in the trial court was that the hospitals’ lien statute is not applicable

to wrongful death actions.      Appellees have otherwise failed to contest the lien or the


                                                 6
reasonableness of the charges in the trial court, and the issue may not be raised for the first time

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

        The Spiveys also argue that the Med is entitled to only one-third of the settlement

proceeds. The hospitals’ liens statute specifically addresses this issue: “The hospital lien,

however, shall not apply 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 entered into by

such person or his or her legal representative by virtue of the cause 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 settlement in this case. We find that pursuant to the hospitals’ liens statute the

Med is entitled to judgment of $16,666.66.

        Accordingly, the order of the trial court is reversed, and judgment is entered for the Med

in the amount of $16,666.66. This case is remanded to the trial court for such further

proceedings as may be necessary. Costs of appeal are assessed against appellees.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.
CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




                                                 7
