     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                             August 23, 2018

                               2018COA126

No. 17CA0741, Marchant v. Boulder Community Health —
Creditors and Debtors — Hospital Liens — Lien for Hospital
Care

     A division of the court of appeals considers whether the

hospital lien statute, section 38-27-101, C.R.S. 2017, provides an

injured person the right to sue for twice the amount of an improper

hospital lien upon the damages payable to her for her injury even if,

prior to suit, the lien met the requirements set forth in the statute.

The division concludes that the General Assembly intended for the

statutory penalty to apply only to lien violations existing at the time

a complaint is filed. Because the plaintiff filed suit after the

hospital had met the requirements set forth in the hospital lien

statute, the division affirms summary judgment in favor of the

hospital.
COLORADO COURT OF APPEALS                                       2018COA126


Court of Appeals No. 17CA0741
Boulder County District Court No. 16CV30445
Honorable Thomas F. Mulvahill, Judge


Jean Marchant, as guardian of Krista Marchant,

Plaintiff-Appellant,

v.

Boulder Community Health, Inc.; and Cardon Outreach, LLC, a foreign
corporation,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                 Division III
                        Opinion by JUDGE MÁRQUEZ*
                          Webb and Fox, JJ., concur

                         Announced August 23, 2018


Bold, Educated Lawyering LLC, Thomas D. Russel, Denver, Colorado, for
Plaintiff-Appellant

Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Plaintiff, Jean Marchant, as guardian of Krista Marchant,

 appeals the summary judgment in favor of defendants, Boulder

 Community Health, Inc. (BCH), and Cardon Outreach, LLC

 (Cardon), regarding her right to seek damages of twice the amount

 of a hospital lien filed in violation of section 38-27-101, C.R.S.

 2017, (the hospital lien statute) against her daughter. We affirm.

                             I. Background

¶2    The record shows the following undisputed facts. Krista

 Marchant, plaintiff’s daughter, was struck by an automobile and

 received medical treatment from BCH in November 2015, for which

 BCH billed $27,681.10. Cardon, as an agent for BCH, filed with the

 Colorado Secretary of State a statutory lien in that amount “upon

 the net amount payable to [daughter], . . . or [her] legal

 representatives . . . as damages on account of such injuries,” on

 December 10, 2015, without first billing the daughter’s insurance

 company.

¶3    On February 10, 2016, BCH made an insurance “adjustment”

 to reduce the bill by $19,903.99 and billed daughter’s medical

 insurance company, Blue Cross Blue Shield (BCBS), the next day.

 BCBS paid $6999.37 on February 23, leaving a balance of $777.74.


                                    1
¶4    On March 17, Cardon amended the lien to $777.74, the

 remaining balance of daughter’s medical charges. The parties agree

 that plaintiff filed a complaint against BCH and Cardon on April 19,

 while the lien for $777.74 was in effect, but this complaint is not

 part of the appellate record. Plaintiff paid $777.74 on April 30, and

 Cardon released the lien on May 11, 2016. Later, plaintiff filed an

 amended complaint, asserting, as relevant to this appeal, a claim

 for violation of the hospital lien statute against BCH and Cardon.

¶5    In response to cross-motions for determinations of a question

 of law under C.R.C.P. 56(h), the district court ruled, as a matter of

 law, that section 38-27-101(7) “only provides standing” for a lawsuit

 if the plaintiff “‘is subject to’ an improper lien at the time he or she

 files the legal action,” and “does not allow an individual to file a

 damages lawsuit . . . where the claim arises out of an improper lien

 filing which has been cured prior to filing.” Based on this

 interpretation, the court granted defendants’ motion for summary

 judgment.

                      A. The Hospital Lien Statute

¶6    Before August 5, 2015, the hospital lien statute provided that

 hospitals “shall . . . have a lien for all reasonable and necessary


                                     2
 charges for hospital care upon the net amount payable to [a person

 injured by another person’s negligence or wrongful acts], . . . as

 damages on account of such injuries.” § 38-27-101, C.R.S. 2014.

¶7    However, the General Assembly significantly amended the

 statute, and the amendment became effective on August 5, 2015,

 before daughter’s injury. Ch. 260, sec. 1, § 38-27-101, 2015 Colo.

 Sess. Laws 981-83. The amended hospital lien statute provides, as

 relevant here, as follows:

            (1) Before a lien is created, every hospital . . .
            which furnishes services to any person injured
            as the result of the negligence or other
            wrongful acts of another person and not
            covered by [Workers’ Compensation], shall
            submit all reasonable and necessary charges
            for hospital care or other services for payment
            to the property and casualty insurer and the
            primary medical payer of benefits available
            to . . . the injured person, in the same manner
            as used by the hospital for patients who are
            not injured as the result of negligence or
            wrongful acts of another person, . . . .

            ....

            (7) An insured person who is subject to a lien in
            violation of this section may bring an action in
            a district court to recover two times the
            amount of the lien attempted to be asserted.

 § 38-27-101, C.R.S. 2017 (emphasis added).



                                    3
                       B. Procedural Background

¶8     Following the trial court’s interpretation of the amended

  statute, defendants moved for summary judgment, arguing that

  because the lien had been cured — it was no longer an improper

  lien — before plaintiff’s lawsuit, and there were no disputed issues

  of fact, they were “entitled to a dismissal.” Plaintiff responded that

  the improper lien was incapable of cure and that defendants’

  proffered facts were in dispute. She also moved for summary

  judgment, arguing for a different interpretation of the hospital lien

  statute. As noted, the court granted defendants’ motion.

¶9     On appeal, plaintiff makes numerous arguments revolving

  around only one contention: the court misinterpreted the hospital

  lien statute. She does not dispute any material facts.

               II. Standard of Review and Applicable Law

¶ 10   We review de novo questions of statutory interpretation,

  Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935

  (Colo. 2010), and orders granting summary judgment, Ryder v.

  Mitchell, 54 P.3d 885, 889 (Colo. 2002).

¶ 11   “Our primary duty in construing statutes is to give effect to the

  intent of the General Assembly, looking first to the statute’s plain


                                     4
  language.” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). In

  construing the plain meaning of the language, we give effect to every

  word and consider the statute as a whole. Waste Mgmt. of Colo.,

  Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo. App. 2010).

  We construe words and phrases “according to grammar and

  common usage.” Gerganoff, 241 P.3d at 935. If the statutory

  language is clear and unambiguous, we will not resort to any other

  tools of statutory construction, and we must apply the statute as

  written. Vigil, 103 P.3d at 328.

¶ 12   But if the statutory language is ambiguous — capable of being

  reasonably understood in two or more ways — we may rely on other

  factors, such as the legislative history, the consequences of a given

  construction, and the heading of the statute to aid in determining

  the General Assembly’s intent. See Gerganoff, 241 P.3d at 935.

¶ 13   If, in light of our de novo interpretation of the statute, the

  pleadings and supporting documentation demonstrate that no

  genuine issue of material fact exists and the moving party is

  entitled to judgment as a matter of law, summary judgment is

  appropriate. C.R.C.P. 56(c); Amos v. Aspen Alps 123, LLC, 2012 CO

  46, ¶ 13.


                                     5
                              III. Discussion

¶ 14   The parties agree that when BCH first filed its lien, BCH had

  not billed BCBS, and thus the lien violated the hospital lien

  statute.1 If plaintiff had sued at that time, the statute would have

  provided plaintiff grounds to seek twice the amount of the lien—

  $55,362.20.

¶ 15   The need for statutory interpretation arises because plaintiff

  did not file suit until after BCH had adjusted the amount due and

  billed BCBS, just as it would for “patients who are not injured as

  the result of the negligence or wrongful acts of another person.”

  § 38-27-101(1). We must determine whether a claim for relief

  attaches at the moment a lien is filed or when plaintiff files a

  complaint.

¶ 16   We construe the language in section 38-27-101(7), “[a]n

  injured person who is subject to a lien in violation of this section may

  bring an action in a district court” (emphasis added), according to

  grammar and common usage. See Gerganoff, 241 P.3d at 935. The

  1 Plaintiff also asserts that the lien was improper because it was for
  an amount greater than that allowed by BCH’s contract with BCBS.
  Even if we agree, our analysis for the overall failure to bill prior to
  lien creation addresses this assertion because BCH had billed
  BCBS an adjusted amount before plaintiff sued.

                                     6
  permissive word “may,” in conjunction with the temporal word “is,”

  indicates that the statute applies only to liens affecting a plaintiff

  when she chooses to sue. See Sifton v. Stewart Title Guar. Co., 259

  P.3d 542, 544 (Colo. App. 2011) (collecting cases; finding no

  authority to support the proposition that present tense language

  applies to past events).

¶ 17   Had the General Assembly intended to make a remedy

  available for liens that had previously violated the statute, it could

  have used mandatory language such as “shall be entitled” instead

  of “may bring an action.” And it could have stated “has been

  subjected” rather “is subject.” But it did neither. We conclude,

  based on the plain language of the statute, that the General

  Assembly intended the claim for relief to attach at the time a

  complaint is filed. See Gerganoff, 241 P.3d at 935.

¶ 18   Even if plaintiff asserted a violation of the hospital lien statute

  in her original complaint,2 she was no longer subject to a lien that

  violated the statute at that time. When plaintiff filed, BCH had

  2 We are unable to review the original complaint because plaintiff
  did not designate it as part of the record. We generally presume
  that material portions omitted from the record would support the
  district court’s judgment. People v. Wells, 776 P.2d 386, 390 (Colo.
  1989).

                                      7
  complied with section 38-27-101(1) for the filing of a hospital lien.

  Specifically, BCH had billed BCBS “in the same manner [as it would

  for] patients who are not injured as the result of the negligence or

  wrongful acts of another person,” § 38-27-101(1); had adjusted the

  balance based on payment by BCBS; and had amended the lien to

  reflect only the remaining charges. For these reasons, the lien was

  not then in violation of the statute, and we conclude that the

  statute does not permit plaintiff to seek damages.

¶ 19      We are not persuaded otherwise by plaintiff’s policy arguments

  that the General Assembly could not have intended our

  interpretation because such an interpretation “creates races to the

  courthouse” and allows hospitals to evade liability by amending or

  withdrawing a lien before a plaintiff sues. See State Farm Mut. Auto.

  Ins. Co. v. Fisher, 2018 CO 39, ¶ 26 (“[W]e think such public policy

  arguments would be better directed to the legislature.”). Nor are we

  persuaded by plaintiff’s argument that the legislative history

  supports only her interpretation. When a statute’s plain language

  is clear and susceptible of only one reasonable interpretation, the

  statute must be applied as written. Smith v. Jeppsen, 2012 CO 32,

  ¶ 14.


                                     8
¶ 20    We do not address plaintiff’s argument — raised for the first

  time in her reply brief — that because the amended statute provides

  a penalty, we should construe it in her favor. See Flagstaff Enters.

  Constr. Inc. v. Snow, 908 P.2d 1183, 1185 (Colo. App. 1995)

  (refusing to consider an argument raised for the first time in a reply

  brief).

                             IV. Conclusion

¶ 21    We affirm the district court’s judgment.

        JUDGE WEBB and JUDGE FOX concur.




                                    9
