*1 The Rector
University Virginia, etc.
Virgil Harris, Thomas et al.
Record No. 881333 January Carrico, C.J., Russell, JJ., Compton,Stephenson, Whiting, Lacy,
Present: Cochran, Retired Justice *2 Pamela A. Assistant Sargent, Attorney General Sue (Mary General; Kneedler, Terry, Attorney H. Lane Attor- Deputy Chief General; Marshall, General; Gail S. ney Attorney Mary Deputy General, Yancey Senior Spencer, briefs), Assistant on Attorney for appellant. Dick; Zunka,
J. Benjamin John W. Zunka & (Taylor on briefs), for appellees.
JUSTICE RUSSELL delivered the opinion Court.
Pursuant a asserted a hospital lien for its services claim patient’s alleged tort-feasor. The also hospital obtained judgment against the patient. When the reached a patient tort-feasor, settlement with alleged reduced the hospital’s pursuant to Code and ap- the balance of the settlement between the patient, attorney, and the hospital. thereafter sued out a hospital sum- *3 in garnishment mons under judgment, seeking to acquire that portion settlement which had been allocated to the patient. In this we appeal, must determine whether the action of the court in reducing the lien and apportioning the settlement under Code 8.01-66.9, affected the hospital’s right to enforce its judgment against the share. patient’s 1981,
In Virgil Thomas Harris (the plaintiff) injured was in a motorcycle accident in Albemarle County. He alleged that his in- juries resulted from the of negligence Gary Michael Campbell (the defendant). The plaintiff received treatment injuries for his at the of University Virginia Charlottesville, Hospital, incurring a $74,682.49. bill of He made no on the payments bill and the hos- 1985, pital, in acquired judgment against him for that amount. 1982, In the plaintiff filed a motion for judgment against the defendant, $500,000 claiming compensatory and damages $150,000 punitive damages. The case remained dor- essentially mant on 1988, the docket until during its pendency, the Rec- tor and Visitors of the University of asserted a Virginia statutory lien, to Code pursuant in the amount of the hospital bill, upon the plaintiffs claim defendant.
The trial date 10, set for the case personal injury was February 1988. The defendant’s applicable insurance limit was policy date, $50,000. scheduled trial defense Within 72 hours $41,500 to settlement. counsel agreed counsel offered Plaintiff’s hos- if the court would reduce the settle the case for amount court, and the settlement. The after notice lien pital’s apportion 1988, 7, on hearing, and a entered order March the hospital $5,000, fixing lien attor- reducing hospital’s $19,900 $16,600, and balance to ney’s apportioning fee None noted an parties objection. plaintiff. his share of the settlement proceeds
The plaintiff deposited 1988, the Jefferson National Bank. On March two accounts at in garnishment the Rector and Visitors sued out a summons under obtained service on bank. and judgment, hospital’s into On The the amount on court. paid deposit bank thereupon 24, the March court vacated the final personal case injury personal injury case and thereafter consolidated moved court garnishment proceeding. ruled that the garnishment. letter quash By opinion, gave final the court the sentence Commonwealth, even discharge” and debts due the “compromise where been and that the judgment, appor- had reduced to made order of March tionment the settlement court’s on final binding was the Rector and Visitors. The court entered a 7, 1988, made reinstating order on September apportionment We Rec- garnishment. granted on March quashing tor and Visitors an appeal. rul- argue
The Rector and Visitors that the effect of the court’s final ing judgment, which was impair hospital’s was forth in Code subject grounds modification on the set mistakes, satisfaction, and (fraud, clerical accord and that, the court had though contend even grounds). They under acquired reduce their valid enforceable their 1985 was still assets, including ap- share against any the plaintiffs $5,000 appor- a credit for the. *4 argue The and Visitors tioned to the the court. Rector by hospital by gar- have collect their right that the same they have. creditor would nishment as proceedings any and by taken the Rector argues that position plaintiff Court, would, final sentence render the if adopted by that He out and ineffectual. points 8.01-66.9 useless § of a and reduction there be no to seek judicial would reason could, a lien creditor immedi- apportionment settlement share to following satisfy seize the ately circumstances, of the In remaining plain- balance debt. those settle, would, argues, tiff have incentive instead, go larger be to trial of a hope well-advised recovery.
At time of the trial court’s decision the present case, the final sentence of Code provided § filed, has been injured which suit after person institution, notice to Commonwealth or the appropriate lien, may reduce the and amount recov- apportion ery between the and the plaintiffs attorney, Commonwealth or . . such . institution as of the case where the first offer to the may appear, acceptable plaintiffs attorney not made until seventy-two prior hours to the date for trial. 108, Smith,
In
(this
Commonwealth
239 Va.
Code for many years, given authority General, Attorney with the of the head of the approval appropri and, amount, ate institution in the case of claims over a stated Governor, settle, with approval and compromise, disputes involving claims interests of added.) Commonwealth institutions. Id. That (Emphasis section was in effect when the predecessor 8.01-66.9 was enacted it was within the originally clearly legislature’s during amendments of 8.01- contemplation many 66.9, therefore, is, which contain 2.1-127. It cross-references significant that adding the General when the final sen- Assembly,
124 1981, c. chose not use (Acts 562), in 1981 to tence to 8.01-66.9 § in The 1981 amendment to that 2.1-127. to language parallel circumstances, trial judge, specified authorized the 8.01-66.9 It did not the further step to the amount of lien.” take “reduce of to the Commonwealth’s authorizing judge claim, the Attorney vested that although authority General, subject appropriate approvals. to the of the final sentence Code we conclude that
Accordingly, discharge the does not the court to give debt, subject it to a credit for lien-holder’s to underlying except to it in It follows that the the amount the settlement. apportioned effect the judgment action in the case had no court’s present reduced, and Visitors had been to which the claim of Rector $5,000 claim to a credit. except not, however, Granted end our holding inquiry. That does remains enforceable against prop- the hospital’s follow, then, that the judg- to the does it belonging erty share of the creditor enforce it plaintiff’s ment may has, pursuant “ap- after settlement case may ... as the recovery ap- so, futility, action was an exercise in because pear?” If court’s any judicial have without the same result would been reached intervention. 97, 102-103, v. 238 Va. King Corp., In Board Land Sup. of (1989), we reiterated and reaffirmed the
380 S.E.2d 897-98 Every of construction. stat statutory “mischief rule” 400-year-old of the enactment should be read so as to “promote ability ute at which it is directed.” Remedial statutes mischief remedy liberally, suppress are to be “construed so as mischief intended legislature’s in accordance with advance remedy” in are to that All other rules of construction subservient purpose. omitted). original) (citations Id. (emphasis tent. Smith, referring pro
In Commonwealth here, “The said: legislative purpose under consideration we vision is construed to amendment is met the statute 1981 frustrate, settlements.” Va. not promote, construction advocated 770. that the S.E.2d at It apparent case, would, in the circumstances Rector Having have to settle. might incentive the any remove stronger incentive in a prospect gain immediate a recovery be to the hazards of trial hope risk debt, and leave a attorney, enough discharge pay large to him. substantial balance
Further, fails to statutory language examination of the Rector and Visitors. Al the construction advocated support give amendment did not though claim, it went further than discharge the lien-holder’s underlying the court the “reduce the amount of the merely granting power *6 also court to the “apportion lien.” The amendment authorized the the attorney, between the recovery plaintiff, or such institution as the of the case may Commonwealth . . . .” Code 8.01-66.9.* is defined: “To “Apportion” appear just divide in ... to allot.” Webster’s New assign proportion (2nd 1934). International 132 ed. Dictionary therefore, General not intended that Assembly, court would have to reduce the lien asserted by institutions, Commonwealth or one of its intended that also the court would have the to determine what power portion receive, recovery contending each parties ultimately and to divide and distribute the If the lien- recovery accordingly. holder thereafter seize the share allotted to the may plaintiff by attachment, or other through garnishment, levy, process, subverted, the “mischief’ at which legislative purpose the 1981 was amendment directed remains without redress. court, acting we hold that when the
Accordingly, pursu ant to the recov final sentence apportions ery between and the Common plaintiffs attorney, institutions, wealth or its binding that apportionment whose claims were parties adjudicated apportionment pro shares of ceeding, such had notice. The provided parties proper thus immune from the recovery are thereafter apportioned although claims of the other such parties apportionment, claims, resulting may to credits from the apportionment, be enforced other property. it had
Although ruling we do not the trial court’s adopt we con- judgment, the hospital’s garnish- clude that the no error in quashing court committed * Although July the final sentence of Code 8.01-66.9 was re-written in effective 1, 1990, unchanged. above-quoted language Acts c. 624. remains judg- and Visitors. by Accordingly, ment sued out the Rector will ment be
Affirmed. CARRICO, with whom JUSTICE CHIEF JUSTICE joins, dissenting. COMPTON from, it holds majority appealed
While the affirms judgment “authority ‘discharge’ had the hospital’s that the trial court Yet, the judgment.” agree pro- I with that holding. majority holding in that the funds discharge ceeds to part received “immune from claims of the are holding. I with that agree cannot apportionment.” parties discharge had If the trial court no power toto, discharge it majority from comes power whence not apportionment language from the part? Certainly sole source of its assigns as majority which notes, “divide means to authority. As the “apportion” majority hand, “to assign ... On the other just proportion allot.” it, extinguish obliga- or to annul discharge claim is [a] force, ed. Dictionary (5th it.” Law satisfy Black’s tory 1979). *7 that, is if the lienor majority says permitted this recovery apportioned
seize share of subverted, case, “legislative purpose ‘mischief was directed which the amendment 8.01-66.9] [to remains redress.” without Assem- language
But is confined to General and, Court mischief, lan- deal with the bly used in attempting so be it. insufficient the purpose, for guage