                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                    January 16, 2015




In the Court of Appeals of Georgia
 A14A1707. KENNESTONE HOSPITAL, INC. v. THE
     TRAVELERS HOME AND MARINE INSURANCE CO.

      MCMILLIAN, Judge.

      Appellant Kennestone Hospital, Inc. d/b/a WellStar Kennestone Hospital

(“Kennestone”) brought suit against The Travelers Home and Marine Insurance

Company (“TH&M”) to enforce its hospital lien for medical treatment and services

provided to Wanderson B. Silva following a motor vehicle collision1 with TH&M’s

insured, Deborah M. Chasin. TH&M moved for summary judgment on the basis that

Kennestone failed to comply with the procedure set out in OCGA § 44-14-471 for

perfecting a medical services lien, and Kennestone filed a cross-motion for summary

judgment, contending that it had in fact satisfied all requirements to perfect its lien,

      1
         Silva was riding a motorcycle at the time of the collision and suffered
significant injuries.
and that, in any event, any defects in perfecting its lien were irrelevant in light of the

fact that TH&M had actual notice of the lien. Following a hearing, the trial court

granted summary judgment to TH&M, and Kennestone filed a timely appeal from that

order. As more fully set forth below, we now affirm.

      1. We start with the pertinent statutory framework. Pursuant to OCGA § 44-14-

470 (b), hospitals and other designated medical providers

      shall have a lien for the reasonable charges for hospital . . . care and
      treatment of an injured person, which lien shall be upon any and all
      causes of action accruing to the person to whom the care was furnished
      or to the legal representative of such person on account of injuries
      giving rise to the causes of action and which necessitated the hospital .
      . . care[.]


      The method for perfecting a hospital or other medical lien is set out in OCGA

§ 44-14-471 (a), and requires the lienholder to

      (1) . . . provide written notice to the patient and, to the best of the
      claimant’s knowledge, the persons, firms, corporations, 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 . . . .
      Such notice shall be sent to all such persons and entities by first-class
      and certified mail or statutory overnight delivery, return receipt
      requested[.] (emphasis supplied).


                                            2
       After the notice is sent and within the specified time period, the lienholder

       (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 . . . medical practice care.


Id.

       Lastly, section (b) of OCGA § 44-14-471 provides, with certain exceptions

discussed in Division 2, that a medical services lien that is not perfected in

accordance with paragraphs (1) and (2) of section (a) is unenforceable.2

       Pertinent to our consideration of the issues raised in this appeal, the record

shows Silva was admitted to Kennestone on March 2, 2011, for treatment of serious

injuries he sustained in the collision with Chasin, and that he was discharged on

March 20, 2011, after having incurred substantial hospital bills. Pursuant to OCGA

§ 44-14-471, on April 28, 2011, Kennestone sent Silva a notice that it intended to file


       2
         We note also that a validly perfected lien may be enforced against a person
or entity liable for the damages of the patient or that person or entity’s insurer, despite
the existence of a release or covenant not to sue between the patient and tortfeasor as
provided in OCGA § 44-14-473.

                                             3
a hospital lien. Kennestone sent the notice via certified mail, return receipt requested

as provided for in the statute, but the return receipt was returned with a notation that

it had been “unclaimed.”

      Also on that date, Kennestone sent a Notice of Intent via certified mail, return

receipt requested, to “Travelers” at “Caller Service 1816, Alpharetta GA 30023.” This

notice referenced Silva, the date of the accident and the claim number assigned to

Silva’s claim against Chasin, but did not contain any notation identifying TH&M’s

insured or the name of the claims adjuster handling the claim. However, the return

receipt, which was signed by an unidentified person at the delivery address, contained

an additional notation to “Marsha,” and the record shows that TH&M claims adjuster

Marsha Corbitt had been assigned to handle Silva’s claim against Chasin. According

to Corbitt’s affidavit, which was submitted in support of TH&M’s motion for

summary judgment, Chasin was insured by TH&M, not “Travelers,” and Corbitt’s

correct mailing address at TH&M was Caller Service # 1817, not Caller Service

#1816 as stated in Kennestone’s Notice of Intent.

      Corbitt further averred that she received a Holt3 demand from Silva’s attorney

on May 16, 2011, and that following several days of discussion, Silva’s Holt demand

      3
          Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992).

                                           4
was accepted and his claim was settled for the policy limits. On May 19, 2011,

Corbitt sent Silva’s attorney a proposed limited release, which specifically obligated

Silva to satisfy any outstanding medical expenses,4 and Silva executed the release on

May 24, 2011 and returned it to Corbitt on May 25, 2011. Corbitt averred that she

was not informed that there were any outstanding hospital liens during her

discussions with Silva’s attorney, Kennestone’s Notice of Intent had not been

uploaded in TH&M’s computer system at the time the release was executed, and prior

to receiving a letter from Kennestone’s attorney on January 20, 2012,5 she had no

“documentation or other information” that Kennestone had filed a hospital lien or that

Silva had failed to pay his hospital bills as required by the limited release.

      Based on this and other evidence of record, the trial court found that

Kennestone had failed to perfect its lien as required by OCGA § 44-14-471 (a) (1).

In so ruling, the trial court made a specific finding that Kennestone had failed to serve

Chasin, as the person alleged to be responsible for the damages arising from the

patient’s injuries, as required by OCGA § 44-14-471 (a), and that it had failed to



      4
      The release listed numerous possible medical provider lienholders, including
Kennestone.
      5
          The letter was dated January 18, 2012.

                                           5
sufficiently designate the proper insurer by sending the notice to “Travelers.” Further,

the trial court found that the exception contained in OCGA § 44-14-471 (b)

permitting enforcement of an invalid hospital lien in the case of actual notice does

not, on its face, apply to insurers, and thus Kennestone’s lien remained unenforceable

against TH&M, warranting summary judgment in its favor. Kennestone now

challenges these rulings.

      (a) Kennestone first challenges the trial court’s finding that it failed to

designate the proper insurer in the notice it sent to “Travelers,” arguing that its notice

to Travelers was sent to the “best of the [its] knowledge,” OCGA § 44-14-471 (a) (1),

which is all the statute requires. In support of this contention, Kennestone argues that

“Travelers” is routinely used to refer to a variety of insurance entities, including

TH&M, under the Travelers “umbrella,” Kennestone has a documented history of

sending unchallenged notices to “Travelers” using the same address and call number

that it used in the present case, and the address it used is the one listed on the

company’s automobile claims center website. Accordingly, Kennestone argues that

by invalidating the lien, the trial court has imposed requirements which are not

imposed by the statute, namely that the lienholder acquire the full proper name of the



                                            6
insurer prior to sending a notice of intent and that the insurer actually receive the

notice.

       We agree with Kennestone that the phrase to the “best of the claimant’s

knowledge” indicates that a notice of lien need not be perfect in all respects.

However, we disagree with Kennestone to the extent that it appears to argue that the

lienholder can merely rely on past (and apparently incorrect) practices to garner the

information it needs to send the notice. Rather, we find that use of the phrase “best

of” to describe the lienholder’s knowledge imposes a requirement on the lienholder

to exercise at least some degree of diligence in acquiring the information necessary

to send the notice. For instance, in this case it appears that Kennestone knew the

claim number and at least the first name of the claims adjuster, yet there is nothing

in the record to suggest that Kennestone took any additional steps to verify the name

of the insurer or to determine the adjuster’s proper mailing address prior to sending

the notice, or that it attempted to ascertain the full name of the claims adjuster and list

it on both the return receipt, which listed only her first name, or the notice itself,

which did not list her at all. Thus, contrary to Kennestone’s argument on appeal, we

do not view the trial court’s order as imposing anything more than the notice be sent

to the best of the claimant’s knowledge.

                                            7
      However, it is not necessary in this case for us to decide precisely what level

of diligence the statute requires or whether this case presents a question of fact

concerning whether Kennestone exercised its best knowledge in sending notice to

Travelers. As the trial court also noted, it is undisputed that Kennestone failed to send

any notice at all to Chasin, although OCGA § 44-14-471 (a) (1) clearly requires the

claimant to send such notice to “the persons . . . claimed by the injured person . . . to

be liable for the damages arising from the injuries.” Accordingly, this failure alone

invalidates the lien.

      But Kennestone argues that summary judgment should not be granted on this

basis, because TH&M did not produce any evidence to show that Kennestone was

aware of Chasin’s identity, again pointing to the language in OCGA § 44-14-471 (a)

(1) that requires only that the lienholder send notice to the best of its knowledge.

However, as TH&M points out, once it demonstrated that Kennestone failed to send

notice to the insured, it was incumbent upon Kennestone to show that this failure

should not invalidate its lien, and if the reason it did not send the insured notice was

because it was unaware of her identity, it should have put forth some competent




                                           8
evidence to support that assertion.6 E.g., Cowart v. Widener, 287 Ga. 622, 623 (1)

(697 SE2d 779) (2010); Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 491 (405 SE2d

474) (1991).

       However, Kennestone further posits that it would have been improper to send

the insured notice even if it knew her identity because TH&M has never admitted,

and indeed has specifically denied, liability on her behalf. To further support this

contention, Kennestone points to OCGA § 44-14-476, which provides that a medical

provider lienholder does not have an independent right of action to determine the

liability for the injuries sustained to its patient. But this argument is clearly specious.

OCGA § 44-14-471 (a) (1) requires the lienholder to send notice to the person or

entity that the injured person or his or her legal representative claims to be liable for

the patient’s damages, and the insurer’s stance on its insured’s liability or

responsibility to pay those damages is irrelevant; indeed, it would be safe to assume

that in most cases the insurer will take the stance taken by TH&M in this case and

either deny, or at least refuse to admit, the liability of its insured. Likewise, the fact


       6
        This showing would seem to be particularly apt to explain how Kennestone
might have acquired the name, or at least part of the name, of the insurance carrier,
the claim number, and the name, or at least part of the name, of the claims adjuster
but yet allegedly remained unaware of the identity of the insured.

                                            9
that a medical provider lienholder does not have an independent cause of action to

determine liability for a patient’s injuries has nothing to do with, and does not

eviscerate, the lienholder’s obligation to send notice to the person the injured party

claims to be liable for his or her injuries. Accordingly, we affirm the trial court’s

finding that Kennestone failed to perfect its lien because it did not serve its Notice of

Intent as required by OCGA § 44-14-471 (a) (1).

      2. However, relying on OCGA § 44-14-471 (b), Kennestone also argues that

even assuming it did not meet the notice requirements contained in OCGA § 44-14-

471 (a) (1), its lien was nevertheless enforceable against TH&M because TH&M had

actual notice of the lien.

      In pertinent part, OCGA § 44-14-471 (b) provides as follows:

      [t]he failure to perfect such lien by timely complying with the notice and
      filing provisions of paragraphs (1) and (2) of subsection (a) of this Code
      section shall invalidate such lien, except as to any person, firm, or
      corporation liable for the damages, which receives prior to the date of
      any release, covenant not to bring an action, or settlement, actual notice
      of a notice and filed statement made under subsection (a) of this Code
      section, via hand delivery, certified mail, return receipt requested, or
      statutory overnight delivery with confirmation of receipt.




                                           10
(Emphasis supplied.) Thus, it is true that, as Kennestone argues, OCGA § 44–14-471

(b) provides an exception to the unenforceability of a lien that has not been properly

perfected in accordance with subsection (a). However, as the trial court found, that

exception applies only to the person, firm, or corporation liable for the damages, and

does not, by its terms, apply to insurers. See Integon Indem. Corp. v. Henry Medical

Center, Inc., 235 Ga. App. 97, 100 (1) (b) (508 SE2d 476) (1998) (omission of the

insurer in the prior version of OCGA § 44-14-473 which contained the language

“against the person, firm, or corporation liable for damages” meant legislature did not

intend to include the insurer); see also OCGA § 44-14-473 (amended at Ga. L. 2002,

p. 1429, § 4 to add “insurers”); OCGA § 44-14-471 (a) (1) (requiring notice to the

person or entity liable for the damages “and their insurers”). Thus, OCGA § 44-14-

471 (b) does not save Kennestone’s improperly perfected lien against TH&M, and the

trial court did not err by refusing to enforce the lien against TH&M on this basis.

Accordingly, the trial court’s order granting TH&M’s motion for summary judgment

is affirmed.

      Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.




                                          11
