Yorgan v. Durkin

Kenneth J. Yorgan, Plaintiff-Respondent-Petitioner, Defendant-Appellant. Thomas W. Durkin, Supreme Court No. 2004AP1359. Oral argument November Decided June

2006 WI 60 (Also 160.) reported in 715 N.W.2d plaintiff-respondent-petitioner there were For the argument by Yorgan, Kenneth J. Racine. briefs and oral by defendant-appellant there was a For the brief DeMatthew, Becker, A. and French & John Becker by argument A. Becker. Racine, and oral John by was filed Andrew W An amicus curiae brief Hurley, Stephen Hurley, Erlandson, & B Burish Milliken, S.C., Madison, on behalf of the Wisconsin argument Chiropractic Association, and there was oral by Andrew W.Erlandson. BRADLEY, J. Dr. Kenneth 1. ANN WALSH unpublished appeals review of an court of seeks judgment reversing a circuit court that held

decision Attorney Yorgan's chiroprac- liable for Thomas Durkin Hernandez, Hernandez.1 fees, tic incurred Sol who Attorney signed agreement client, Durkin's with Yorgan directing pay Yorgan her Dr. against any might purporting give lien she injury from her claim. Dr. receive argues agreement he to enforce the should be able against Attorney Durkin, who distributed the Yorgan.2 paying claim from Hernandez's without Yorgan may determine that Dr. not hold 2. We Attorney payment Durkin did Durkin liable because sign agree otherwise be liable. Durkin, Yorgan See 2004AP1359, unpublished slip No. (Wis. 2004) (reversing judgment of the op. App. Ct. Nov. County, Constantine, Judge). circuit court for Racine Charles H. case, Yorgan proceeding pro is se this but Wisconsin has submitted an amicus brief. Unless Chiropractic Association indicated, discussing simply otherwise we refer to when arguments by made either him or the Association. on imposing liability determine that we Additionally, we Finally, by public policy. is not dictated entitled to an equitable is not determine that Attorney Accordingly, Durkin. lien enforceable affirm the court of appeals. we

I—I in car accident and involved 3. Hernandez was At from Dr. Yorgan. treatment received chiropractic a form en- her with Yorgan provided Dr. point, some Lien" that consisted and Doctor's titled "Authorization of the terms: following Yorgan to fur- hereby Doctor Kenneth

I do authorize examination, of the you, my attorney, report a full nish etc., treatment, myself, as well diagnosis, prognosis may regarding have information he any as records or arising from a may I have injuries problems or health occurring on or about: 8-6- injury accident 99.3 attorney, to you, my pay hereby

I authorize and direct may due and Yorgan such sums as be directly to Dr. by rendered to me reason owing him for health services any and to such sums of this accident withhold necessary settlement, may be judgement or verdict my hereby give I lien his interests. further protect my against any and all case to Dr. settlement, paid judgement or verdict which injuries attorney, myself as a result of the my you, I treated or have been problems and health which thereto. connection fully respon- directly I fully am understand him for Yorgan for all fees submitted to Dr.

sible me and that rendered to services on the form. date was hand-written The accident solely made for his additional protection and consid- awaiting payment. eration of his I further understand payment contingent any settlement, that such is not judgement by or verdict eventually which recover said fees. acknowledge

Please signing letter below and returning Yorgan. to Dr. Retain copy your one for records. I have my attorney been advised that does not if cooperate wish to in protecting Yorgan's fees, Dr. he will payment require await and will me to pay- make ments on a current basis. added.)

(Emphasis form, At bottom of the there line for signature Hernandez and a line signature her Hernandez attorney. the form and signed subse- retained quently Attorney Durkin to handle claim injury to the car relating accident. During the course of Durkin's representation of Hernandez, Dr. Yorgan Durkin provided with 13 of medical pages records and included a of the copy Durkin, form. however, never it. signed Attorney settled claim Hernandez's

and, at some had a point, conversation with telephone Dr. in which he asked to reduce his bill. Ultimately, Durkin distributed the settlement proceeds without paying Yorgan. 6. Dr. Yorgan made at apparently least some

attempts collect against Hernandez, but he was unsuccessful. filed a Yorgan thus small claims action Durkin, Attorney to hold Durkin seeking liable for his failure to forward payment satis- faction of Hernandez's account outstanding $2,104.40. Durkin moved for summary judgment, as- that he serting did not have actual notice of the form indispensable party as the Hernandez was and that outstanding responsible person for the balance. Yorgan. Dr. in favor of

¶ The circuit court ruled 7. Attorney notice of Durkin had actual It determined pay agreement its terms to and was bound form Yorgan. Hernandez, determined that The court also an unknown, was not indis- were whose whereabouts judgment Accordingly, party. pensable the court entered against Durkin. Attorney appealed, and the court Durkin 8.

appeals court. It concluded the circuit reversed obligated to honor the was not because Durkin and Hernandez Dr. between Yorgan peti- acknowledged accepted it. Dr. had not for review. tioned

I—I Dr. address whether case, In .we must 9. Attorney Yorgan may based on Durkin liable hold agreement under Lien" and Doctor's "Authorization equitable of action. This lien cause a contract or either interpret requires instru a written to examine us undertaking is a its effect. Such an to determine ment appellate subject independent review. question of law Gregory, Micro-Managers, 500, Inc. v. See 1988). (Ct. App. addition, we 507, 434 N.W.2d liability otherwise should determine whether must policy Attorney public imposed on Durkin based question court's of law for this considerations, also independent Auric v. Continental See determination. (1983). Co., 507, 512, 331 N.W.2d 111 Wis. 2d Cas. HHHH I—I begin analysis Riegleman 10. We our with Krieg, App 85, WI 271 Wis. 2d 679 N.W.2d appeals 857, a case which the court of examined the effect of a similar instrument under circumstances involving attorney, chiropractor, an and the client/patient's personal injury Riegle from their claim. man, ¶¶ 1-3, Wis. 2d There, however, the attorney signed had Id., ¶ the instrument. Riegleman

¶ 11. The court whether, addressed under those circumstances, the instrument constituted client/patient a contract that made the and his jointly severally Id., ¶¶ liable. 27. It deter- unambiguous mined that the instrument was an con- creating tract enforceable under con- Id., ¶ tract law. 36. It concluded that the and patient/client jointly severally the were and liable for chiropractor's the Id., ¶ fees. Riegleman, appeals In the court of did not general assignability

address the of a tort claim or its anticipated proceeds. assignment We observe that the rights arising of claims or under a contract has tradi tionally distinguished assignment been from the of rights arising claims or from a tort. See 9 Corbin on (Interim §§ 2002); Contracts, 856-57 ed. see also Re (2d) (1981). § general statement Contracts 316 As a easily assignable rule, the latter are not as as the § Contracts, former. 9 Corbin 857, 364; at see also R. Assignability D. Injury Hursh, Claim Personal of for (1955). § Death, 500, 40 A.L.R.2d 2 parties ¶ 13. The have not briefed the issue of the assignability right arising of a claim or from a tort.

678 circuit court here of nor the the court appeals Neither Likewise, the issue. we out and address fit to reach saw as both it. "We cannot serve reaching refrain Pettit, 627, 647, 2d State v. 171 Wis. judge." advocate 1992). (Ct. Rather, we will assume App. 633 492 N.W.2d and Authori- "Doctor's Lien that the deciding without Dr. but conclude assignment zation" is a valid against Attorney enforce it cannot reasons that follow.4 raised, briefed, an is to have issue proper procedure Nevertheless, the deciding it. parties before argued The dissent and addresses this issue. reaches out dissent to the case of issue, the case at bar comparing decides Co., 19 Wis. 2d Products Paperboard v. Cornell D'Angelo (1963). court stated D'Angelo, 396-97, 120 N.W.2d 70 subject assignable, public injury claims are personal however, D'Angelo, at 396-97. limitations. Id. policy a claim between two subrogation case. It involved insurance with the of them had settled after one companies insurance rights. exchange for an plaintiff for the only D'Angelo that cite located two cases We have assignable. injury claim that a proposition American subrogation cases. See also insurance Those cases are 353-54, Milwaukee, 2d City Co. v. Ins. Serv., v. Milwaukee (1971); Hosp. Inc. Associated N.W.2d 142 Co., n.3, 147 N.W.2d Mut. Ins. Auto. (1967). relevancy of asserting is alone The dissent amicus, parties, to the instant case. Neither D'Angelo found it relevant court, appeals have nor the court the circuit analysis. be Dr. should believes that apparently The dissent subrogation has a company that just like an insurance treated of the implications public policy The policy. in its clause in our discussion significant, are -willingness to do so dissent's opinion suggests. 30-33 of this ¶¶ subrogation extending addition, the ramifications example, For unexplored. are in a fashion such

jurisprudence 679 Riegleman does not answer the question Riegleman before us the court in not because did address the issue whether an liable attorney may be even though attorney signed has not or otherwise the terms of an like here. accepted agreement the one The on holding court's the fact depended had attorney signed accepted therefore the terms of See the agreement. Riegleman, 27, 798, Wis. 2d ¶¶ 35, 37.5 view, In our it significant whether signed has ac- otherwise Here, its terms.

cepted applying prin- basic contract ciples, Attorney we determine that a was not under the insurance-subrogation approach, dissent's there must be a hearing under Rimes v. State Farm Mutual Automobile Co., 263, (1982), Insurance 106 Wis. 2d 316 N.W.2d 348 determine whether Hernandez has been made whole Dr. before Yorgan can collect? Under the insurance-subrogation dissent's approach, necessary would Dr. have party been 803.03(2) personal injury § Hernandez's Wis. action? See Stat. (2003-04). dissent, Unlike the we think before court this (or assignability confronts the of the of a issue tort claim its anticipated manner, in proceeds) such a novel issue should presented in the case and tested of the adversarial briefs parties. Riegleman relied, part, court in Stat. 402.210(5),

§ statutory provision pertaining assignments and found within Wisconsin's of the version Uniform Commer cial chapter covering Code in the sales contracts. See Riegleman Krieg, App 2004 WI Wis. 2d N.W.2d 402.210(5) § 857. We do place reliance on because we question applicability its to the types of instruments at issue ("Unless Riegleman § case at bar. See Wis. Stat. 402.102 the context requires, chapter otherwise applies to transac ...."). goods tions

All references Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. by Yorgan agreement

party and not it. Dr. bound expectation that Durkin would had no reasonable agreement sign by Likewise, if he not it. did bound Yorgan no reliance interest Durkin's had reasonable plain rejection agreement. acceptance or This is agreement, Yorgan, Dr. not which the terms of the Attorney supplied. Durkin, Hernandez following Specifically, ¶ terms we look to the 16. agreement: of the directly fully I fully respon- understand that am by Dr. all fees him for Yorgan for submitted

sible agreement me and that rendered to services and in solely protection additional consid- made for his awaiting payment. eration of his ... my attorney does not wish I have been advised ... if fees, Dr. he will not cooperate Yorgan's in protecting payments make require will me to payment

await a current basis. on added.)

(Emphasis agreement Dr. of the condition 17. These terms sig- payment attorney's Yorgan's on the offer to await Yorgan They Dr. could not indicate that nature. also attorney reasonably expected that Hernandez's have agreement signing it. without be bound would reasonably they Similarly, not Dr. did show that responsibility attorney's agreement rely signature. payment absent an agreement language plain con- of the attorney might sign templates it, that Hernandez's option to Dr. and the effectively canceling reserved By terms, Dr. in that its it event. require cur- to remain free to Hernandez attorney signed it. unless her on her account rent Yorgan apparently fully Dr. chose not to agreement against enforce the terms of the Hernandez. permitted outstanding to an Rather, he her accumulate though attorney $2,000 balance of over even her never signed agreement. the Attorney

¶ 20. Wealso determine that Durkin can- accepted be deemed have otherwise the of terms agreement the under the of circumstances this case. Although copies he of received Hernandez's medical Yorgan, they records from Dr. were not consideration or independent provided by an benefit Dr. to Dur- Attorney kin. received the records representation Hernandez's behalf in course of his of receipt Hernandez. Durkin's of the records cannot con- acceptance agreement stitute of the his terms of the or give obligation running otherwise rise to a contractual Yorgan.6 from him to attorney In some circumstances, an

agree contractually by proffering bound a "letter protection." practice by of Such are "a letters common lawyers representing personal injury plaintiffs which necessary ensure clients will treatment, receive medical pay even if unable to until is case concluded." 6 We have no reason think the records Dr. provided Attorney anything Durkin were than of copies other records, pre-existing generated Hernandez's health care in the words, normal course of her In treatment. other it is not situation here that Dr. went uncompensated creating for an expert report or Attorney similar document at Durkin's request. addition,

In we note that we need not reach the issue provider's agreement whether a health care to provide health patient can, itself, care records to a her representative by or constitute a consideration contract a between health care provider See a patient patient's or the representative. (4). 146.81(1)0»), (3), §§ Stat. 146.83 and (citing Riegleman, In re 798, 30 n.5 (N.M. 2000)). Use of Moore, 4 P.3d 665 n.1 explained "a document which has been letter lawyer payment will be a medical vendor notifies judgment obtained." settled or made when the case is Attorney not bound either as Durkin was Here, Id. by any agreement party such other instrument protection. as a letter Riegleman, cases court relied on four jurisdictions. cases, In all but one of other

from two (N.J. Haigood, A.2d 1158-59 Berkowitz v. 1992), Super. clear that the Ct. Law Div. it was signed or sent a letter either had protection. Moore, Matter 665; of Rawson, 4 P.3d at See (N.M. 1992); Earl, 810 P.2d Romero v. P.2d 1991). (N.M. along There are other cases 808, 808-09 Santiago Klosik, 605, 404 S.E.2d lines. See similar (Ga. 1991); App. Allen, In the Matter 802 606 Ct. (Ind. 2004). Attor conclusion that 922, Our N.E.2d ney party to the either as a

Durkin was not bound supported by any agreement other instrument weight great of these authorities.7 the Attorney argues Yorgan ¶ 23. Dr. nonetheless duty directions, which to follow his client's Durkin's agreement. There- the were clear under asserts him he liable to because asserts, Durkin is fore, outstanding pay accord- balance Hernandez's failed to ing Yorgan's agree with do not to her directions. We liability. Attorney analysis Durkin's Initially accurate to ¶ that it is not we observe necessarily say agreements the one here such as attorney's scope unequivocally of an dictate the and attorney's duty duty the or her client. What to his attorney discipline cases are of these cases Some attorney liability in a civil suit. therefore do not address requires agreement client in the face of such an will depend including on the facts of the case, whether the attorney signed agreement. the example, attorney signed 25. For if the has not agreement disputes the and knows that the client charged by pro- reasonableness of fees a health care attorney may actually vider, duty breach his or her by paying provider. to the client However, if the attorney signed has and knows of such a dispute, attorney may obligated to withhold the disputed amount of funds from client; if the attor- ney indefinitely, does not want to hold funds then the option bringing has the an action for declaratory judgment guidance to seek from the court. Riegleman, 798, Wis. 2d 36.8 Having

¶ 26. made that initial observation, we will Attorney assume that Dr. is correct that duty pay Yorgan. Durkin's to Hernandez was to Even 20:1.15(d) (2006). See also SCR We note that the Rules of Professional Conduct for Attorneys are not determinative of an attorney's liability: civil give Violation of a rule should not rise to a cause of action nor any presumption should it legal duty create that a has been designed

breached. provide guidance The rules are lawyers provide regulating through structure for disciplinary conduct agencies. They designed are liability.... to be a basis for civil 20, Preamble; SCR Rexworks, see also Williams v. Inc. 2004 WI ("[I]t App 277 Wis. 2d 691 N.W.2d 897 is clear preamble, from the any from the lack of authority to the contrary, that [Rules of Professional Attorneys] Conduct for provide do not independent an basis for liability, civil and do not any create presumption legal duty that a breached."); has been Nauga, Co., Inc. v. Westel 306, Milwaukee 216 n.5, Wis. 2d 318 (Ct. 1998). 576 App. Thus, N.W.2d 573 we need not and do not address the applicability of the Rules to the circumstances here.

684 necessarily Yorgan may hold does not mean that so, this breaching duty. that liable for "[T]he ¶ of well established rule law Wis public policy that fraud or certain is absent consin attorney parties is considerations, an not liable third in the of his as an for acts committed exercise duties attorney." Co., Mut. Ins. 176 Newhouse v. Citizens Sec. (1993); 824, 1 accord Green 841, 2d 501 N.W.2d Wis. Spring Kersten, 304, 321, 136 2d 401 Farms v. Wis. (1987); Auric, 512; 111 2d at Beau 816 Wis. N.W.2d champ App 2d Kemmeter, 5, 7, 2001 WI 240 v. Wis. 2000).9 (Ct. App. 738, 297 733, 625 N.W.2d asserting alleging is or Here, question Thus, or collusion. we are faced with fraud exception recognize type to the a new of of whether general non-liability attorney parties. rule of third public policy impli- requires consider This that we exception. Newhouse, 176 2d at an Wis. cations of such Auric, 111 2d at 512. 841; see also only fraud, appears it that well-established Absent general attorney non-liability to third rule exception Auric v. Continental parties planning arises in the estate context. (1983) Co., 507, 512, (holding Cas. 111 Wis. 2d N.W.2d an action beneficiary of a will maintain or the execution negligently supervised drafted who Sciences, First Arts & Letters v. Acad. Wisconsin will); (Ct. Bank, 758, Nat'l 419 N.W.2d 301 Wisconsin 1987) Beau holding in Auric trust); (applying the App. cf. Kemmeter, App 5, 9, 240 Wis. 2d champ 2001 WI (Ct. 2000) party's a third cause (holding App. 625 N.W.2d the third of action under Auric limited to situations which will or similar named in an executed unexecuted party is document). planning estate public policy ¶ 29. There is no set list of to factors consider.10Our review of the relevant to case law leads particular that we conclusion must consider the public policies implicated by the nature of the situation suggest addition, at hand. In the cases that the factors (1) may imposing liability to consider include whether party may compromise attorney's in favor of a third Spring Farms, client, duties to his or her see Green 136 (2) party at 329, and whether the third is aware potential obligation of the ability for harm and has the or investigation his undertake or her own of the protect herself, matter to himself 324; see id. at Vojvodich, 102, Goerke v. 67 Wis. 2d 226 N.W.2d (1975). 211 Turning public policies

¶ 30. case that this implicates, they we that, balance, determine do liability. agree- dictate in of favor We are mindful that ments one such as the between Dr. and Hernan- arguably may help dez to facilitate access to care health patients. for some However, arewe also mindful that may patients attorneys these same need access to compensation inju- courts in order receive for their rights. ries and otherwise vindicate their 10 Auric, addressing The court in liability in will benefi ciary against attorneys, suits adopted five-factor test used jurisdictions. other "the factors are extent which transaction plaintiff, was intended affect the the foreseeabil ity him, degree certainty of harm to of plaintiff suffered injury, the closeness the connection between defendant's and the injury, policy conduct and the preventing Auric, future harm." 111 514 (quoting Wis. 2d at Lucas v. (Cal. 1961)). Hamm, 364 P.2d The court subsequently explained Kersten, Spring in Green Farms v. 2dWis. 326-27, (1987), application N.W.2d that the of this test planning restricted to the estate context. Allowing third-party Dr. creditors such as notice client to hold liable an with attorneys accepting more, deter debt, absent negatively injured injury impact personal and cases particularly parties' This would be access to courts. relatively appears true, here, it that a claim is as when resources are and that the claimant's financial small Taking Yorgan does, we a view than Dr. limited. broader willingness attorneys is of in mind that it must bear helps compen- types ensure to take these of cases that only patients are tort victims but not who sation providers their creditors. health care who are also for stopping point readily ¶ 32. see no discernable We attorney liability imposed liability if for the on variety Yorgan A of client creditors reasons advances. attorney only copy a of need send the client's would agreements order to enlist the with the client in their agent attorney facto collection who would be as a de pay required correctly prioritize or client debts to liability. attorneys position Putting in this risk compromise to clients. their duties their imagine proliferation a It is not difficult to agreements to here, in clients seek like those which injury give personal as in claim interest an provid- security to health care to creditors addition example, relates instance ers. For Durkin's assigned portion anticipated a client had in which proceeds injury client's claim to the from in order to avoid eviction. landlord already addition, for reasons we have have known discussed, Dr. should based agreement might plain language he of the agreement Attorney signed protected unless Yorgan was, Dr. some other affirmative action. took potential for harm been, aware of the or should have unsigned agreement that an could create. At the same ability time, he had at least some to to seek ensure his protection by insisting attorney's signature on an on the protection. or a letter of sympathetic

¶ 35. We are to Dr. com- argument, efforts, mend him for his described at oral patients ordinarily difficulty to serve who would have affording accessing chiropractic or otherwise services. beyond However, we must look case the conse- quences likely type that are follow of new exception general attorney non-liability rule of parties impose. third he asks us to On balance, we think public policy weigh considerations favor declining adopt exception. a new Finally, argument

¶ 36. we turn to an made Chiropractic Wisconsin Association that Dr. personally should be deemed to have a lien that is against Attorney Specifically, enforceable Durkin. the arguing Association is that should have an equitable against lien Hernandez's settlement and enforceable Durkin. argument, addressing by begin 37. In we

observing legislature very that the has enacted few statutory provisions. specifically, lien More and as rel- statutory provisions here, evant lien for a health provider legislature care that has enacted are operating limited to entities as a charitable institution maintaining hospital and a in this state. Wis. Stat. § In 779.80.11 order for such lien a to attach to a injury personal proceeds resulting claim or it, hospital comply require- must with detailed notice 11 Among statutory the few by lien provisions enacted legislature attorney's 757.36, are those for See §§ fees. Wis. Stat. 757.37, 757.38; and see Stasey Stasey, also v. 168 Wis. 2d (1992). 483 221 N.W.2d (3). 779.80(2) § states, Some unlike ments. See statutory provisions that cover a lien Wisconsin, have relatively providers care in relation of health broad class injury provided See, claimants. for to services (2005); § e.g., tit. Okla. Stat. Neb. Rev. Stat. 52-401 (2005). § 46 equitable contrast, lien, in is a more An

general "The elements of creature of the law. essential (1) obligation duty equitable or debt, liens include a (2) by person owing to which another[,] res one obligation or de fastens, which can be identified certainty." McIntyre Cox, reasonable scribed with (1975) (citations 597, 602, 229 N.W.2d omitted).12 equitable Wisconsin, lien doctrine is (2d) id. See at Restitution. on the Restatement based "[wjhere property provides that 601. The Restatement proceeding equity person by reached can be one ground security claim on the for a another unjustly enriched, an former otherwise the would (2d) equitable Restatement Restitution lien arises." (1937); McIntyre, § 2d at 601. see also Yorgan entitled Dr. determine that We against Attorney equitable Dur- an lien enforceable there are three elements The Association states that necessary of an "The elements hen as follows: equitable equitable lien are ^[1] 'a debt, duty obligation owing by one person to another' ^[2] a 'res which that obligation fastens'; ^[3] they arise 'from written contracts showing an payment with the charge particular property some intention O'Connell, 13, 51, 279 AppWI v. 2005 of a debt.'" O'Connell Cox, 68 Wis. McIntyre 406, (quoting 2d 694 N.W.2d Wis. (1975)). The formulation the 2d 229 N.W.2d of this case. important purposes not for elements is First, Hernandez, kin for at least three is reasons. it Attorney unjustly Durkin, who has been enriched at Dr. Yorgan's expense. allowing equitable Second, an for lien general in this manner would seem circumvent the non-liability parties, rule undermining to third public policy analysis

the that must we adopting exception undertake before a new to that rule. imposition equitable ¶ 40. Third, the of an lien in against Attorney favor of Dr. Durkin would legislature's policy be inconsistent the choice, with hospital reflected in the lien statute: to limit lien rights providers to a narrow class of health care and to qualify rights requirements. those with detailed notice change If there to be a in the law that has the effect altering provider the scheme health care liens in personal injury legislature context, the inis position change. better to make that parties fully addition, have not briefed the issue of whether the future of a tort claim may equitable may constitute res to which an lien obligation necessary A fasten. res to which an fastens ais equitable principal element anof lien claim. case appears cited the Association on issue, however, proposition equitable gen to stand an lien erally promise pay obligation does not arise from a expected from insurance that are to be received Thieding, in the future. See Bartholomew v. (1937).13 135, 138-39, 273 N.W.468 13Our research into Wisconsin law leaves unclear whether anticipated proceeds of a may tort claim constitute res to O'Connell, which an equitable lien fasten. See (explaining 16 n.10 equitable no lien was created in the case of McIntyre because the claimant had an interest land, proceeds, not and because no debt existed until

IV Yorgan may sum, we that Dr. determine Attorney payment because hold Durkin liable not sign agree did or otherwise not Additionally, imposing determine that liable. we to be by policy. liability public on Durkin is not dictated Finally, an that is not entitled to we determine equitable lien Durkin.14 Accord- enforceable appeals. ingly, of we affirm the court appeals By of court of the Court.—The decision is affirmed. {concurring). WILCOX, E J. ulti- JON join majority

mately opinion. The law in Wisconsin meager particular best, but it does this issue is at suggest attorney cannot be held liable to a that an payment third-party for a failure to ensure creditor attorney agree purported not to a does when Notwithstanding proceeds. assignment settlement my separately express holding, view that I write exception an made when this, should be in cases such as sold). necessary Yet, a res is a the existence such property essentially all of the note ingredient the dissent. We equitable its support dissent cases cited Wisconsin Stoffregen, In re generally real estate. See analysis lien involve (Bankr. Corp. River Lumber 1997); Rock B.R. 939 E.D. Wis. 206 Corp., 82 Wis. 2d 235, 262 114 Mortgage N.W.2d v. Universal Ass'n, Homes, v. Production Credit 81 Inc. (1978); Wis. Carefree 597; (1978); McIntyre, 68 Wis. 2d 541, 260 N.W.2d Witte, 545, 86 Co. Loan & Trust N.W. 173 Citizens O'Connell, (1901); Wis. 2d 406. determinations, need reach made these we Having have argument the circuit court should

Attorney Durkin's indispensable Hernandez was dismissed the case because party. professed has actual notice of a

of settlement funds between client and a health care provider. respectfully I such, As concur. injuring

¶ 44. After in a herself motor vehicle sought chiropractic accident, Sol Hernandez treatment Yorgan. pay from Dr. Hernandez was unable to for the Yorgan, treatment she received from Dr. so she ex- a ecuted form "Authorization entitled and Doctor's (Agreement) by provided Yorgan. majority Lien" Dr. See op., ¶ 3. subsequently sought

¶ 45. Hernandez an attor- ney personal injury her claim, to handle she even- tually Attorney retained Durkin. After Hernandez com- pleted Yorgan, Attorney treatment with Dr. Durkin requested Hernandez's medical from records Dr. Yorgan's Yorgan office.Dr. sent the records and included Agreement. Attorney signed the it, Durkin never but dispute there is no that he had actual about notice the Agreement. Attorney Further, Durkin did not send a acknowledgment accepting declining or letter other purported assignment Agreement. the contained Attorney

¶ 46. settlement, Prior to Hernandez's Yorgan Durkin contacted Dr. if to ask he would reduce Subsequent fee; his Dr. refused. to this conver- knowledge sation and with the that Dr.

expecting payment proceeds, Attorney attorney's funds, disbursed the less fees, to Hernandez. any payment. Dr. never received my

¶ 47. view, a better rule would be that in attorney this, cases such as when an has actual notice of assignment purported between a client and medical provider, yet assigned still chooses release the settle- notifying provider, ment funds without the health care attorney jurisdictions be held liable. Other e.g., See, have reached a similar conclusion. Kaiser Plan, Health Inc. Aguiluz, 54 Cal. Found. Rptr. 1996) (Cal. on other grounds by overruled Ct. App. (Cal. Inc., 2000); Mfg., v. Flightways 3 P.3d 286 Snukal (N.J. Ct. Haigood, Berkowitz v. Super. 606 A.2d 1992) honor an has the (attorney obligation Div. Law notified). if properly of Pro- Rules Although recognize Attorneys provide for do basis fessional Conduct see 20, Preamble, I call attention liability, civil SCR for guidelines certain ethical they provide to them because a situation such as approach how an should agreement purporting assign when a preexisting attorney.1 is discovered settlement (1) receiving funds or Upon Notice and disbursement. interest, an or in in a client has property other which lawyer party that a 3rd the has received notice which lien, order, judg- by a court has an interest identified contract, notify ment, lawyer promptly or shall the the writing. in Except or in as stated party client 3rd by agreement or permitted by rule or otherwise law client, to the lawyer promptly the the shall deliver with any property or or that the party client 3rd funds other or entitled to receive. party client 3rd is (3) lawyer Disputes trust When the regarding property. person the and another person and another client in identified ownership property claim interest trust order, lawyer lien, contract, the judgment, or a court is an in trust until there property shall hold that dispute a of the interests. accounting and severance If 20:1.15, Court Rule Supreme 1 I cite the 2006 to version underlying the transaction has been modified since which higher held to the ethical Attorney Durkin cannot be this case. the ethical modified rules and did violate standards of these time of the transaction. in force at the rules regarding arises the division the property, lawyer disputed shall hold the portion dispute in trust until the is resolved. ... (3) (2006) (third added). 20:1.15(d)(1), emphasis

SCR explains ¶ 49. The to Comment this Rule further following: creditors, parties, Third such as a client's have just against claims or other property lawyer's in a funds custody. lawyer may law, A have a duty applicable under 20:1.15(d), including protect SCR such 3rd-party client, against claims wrongful by the interference accordingly, may to surrender the property refuse However, lawyer client. a unilaterally should not as- sume arbitrate a dispute between client and the party. 3rd

If a lawyer belonging holds property person to one a person second a has contractual or claim similar person but does not claim to own the property security it, or have a lawyer interest is free to the property person deliver it whom belongs. 20:1.15(d) (2006) added). (emphasis

Comment, SCR suggest 50. The Rules that when an party knows third claims interest in future settle- agreed ment which to, the client has the best money course of action to hold the in trust until through proper procedure. matter can be resolved ¶ 51. In order to avoid situations such the one Attorney Durkin case, found himself in this it seems appropriate attorneys that should not remain silent in the face of a written demand for the assurances of payment. attorney unambiguously notify should provider the health care whether he or she intends to be agreement. bound to the attorneys suggesting that have a I am not 52.

duty investigate their financial affairs of clients to merely suggest- releasing prior I am settlement funds. to pur- ing of a has actual notice that when proceeds, assignment ported inas of settlement precautionary proper he or should take case, she releasing steps suggested rules before the ethics unjust help prevent the result a rule would funds. Such of this case. ROGGENSACK, J. PATIENCE DRAKE

{dissenting). medical care arose Because the need for proceeds accident as did settlement out of the same Hernan- in the record that Sol and there is no evidence (Durkin) (Hernandez) Attorney provided Durkin dez any of the settle- the disbursement instructions about Yorgan (Yorgan) proceeds were ment to Doctor contrary assignment she executed favor validly assigned Yorgan, to I that Hernandez conclude injury proceeds from her settlement charges up for the chiro- the amount of the claim, Yorgan provided practic I to Hernandez. treatments granted Yorgan a lien to that Hernandez also conclude payment for which the of the debt secure against the lien can be enforced made, and that Yorgan's lien existed be- because settlement any right portion of the to retain Durkin had fore proceeds assign- knowledge of both the and Durkin had permit Accordingly, Yorgan's I lien. would ment and of the to the extent recover from Durkin amount due Durkin received or the settlement provided chiropractic he care for the Hernandez, whichever is smaller. analysis of the conclude also

majority opinion, which focuses on whether pay Yorgan,1misperceives into a

entered contract to dispositive analysis is issue that by of this case. The chosen majority opinion ignore validity causes it assignment Yorgan of Hernandez's effect of gave the lien Hernandez the settlement respectfully I Therefore, Durkin received. dissent.

I. DISCUSSION A. Standard Review validly assigned Whether has 55. one an inter property question interpretation

est in subject is a of contract independent Petrone,

to our review. Edwards v. (Ct. 1990). App. 2d 255, 258, 160 Wis. 465 N.W.2d847 property a lien Whether has attached to is also reviewed McIntyre independently. Cox, See 2d 597, 602, (1975). 229 N.W.2d613 Assignments

B. 15, On December Hernandez made a plain unambiguous assignment2 Yorgan written may her be received from injury claim: hereby you, my authorize and direct attorney, to

pay directly may to Dr. such sums as be due and him owing for health services me rendered to reason accident any this and to withhold such sums settlement, judgement or verdict be necessary protect his interests. Moreover, the circuit court found that document was sent to Durkin about November 1 majority op., See 2.¶ Durkin does not contend that the ambigu ous. Yorgan's Hernandez's treat- office transmitted

when requested. The circuit Durkin had records that ment per- settled Hernandez's that Durkin court also found prior injury June, and that to about claim sonal Yorgan reaching to see Durkin contacted settlement, a chiropractic then due for if reduce the amount he would paid so, do Durkin refused to When services. proceeds the rest and sent from the settlement himself found. Hernandez, who is now nowhere be of it to Hernandez in the record that There is no evidence provided any the disburse- instructions about Durkin proceeds that were ment of the settlement assignment contrary executed favor she assign- Yorgan. Accordingly, of this Durkin had notice by expressly client. created his ment, assignment in the settle- ¶ of an interest An injury personal claim a ment from Riegleman Krieg, by v. contract. a written made App 798, 679 N.W.2d 857. WI prohibi- statutory common law there is some Unless assignment its effect. See control tion, the terms of the unambiguous, plain we the terms are id. When meaning. according plain assignment to its an construe Capitol Indem. Prods. Co. Concrete See Waukesha (Ct. App. Corp., 332, 339, 379 N.W.2d 127 Wis. 2d 1985). statutory prohibition located no have assigning

against in the settlement an interest injury not claim claim, and Durkin does a regard prohibition there is to whether exists. such assignments, prohibition such common law assignment Riegleman was held that such while directly the common address whether created, it did not majority opinion ducks decision. affected its law improperly claiming by con- that the dissent issue validity assignment siders of Hernandez's in favor Yorgan. Majority op., 13. It asserts that the circuit Yorgan. court did not address an Id. overtly analyze While the circuit court did not assignment, elements of an it concluded that Hernan- assign proceeds Yorgan dez did settlement when it said:

The Court also that Mr. by holds bound given terms of the direction to him Mr. [sic] Hernandez; is, to pay Yorgan's Dr. bill. . . . [T]his Court is satisfied that Dr. and Mr. [sic] Hernan- gave dez actual notice to Mr. Durkin Yorgan's of Dr. interest the settlement of proceeds. County

Racine Decision, Circuit Court Case No. 2003SC5353, p. majority opinion ¶ 60. The also takes the dissent analyzing to task for whether Hernandez made an assignment Yorgan, appeared because who pro majority opinion se, did not brief the issue. The asserts: proper procedure raised, briefed, is to have issue argued by parties deciding before it. Neverthe-

less, the dissent reaches out and addresses this issue. dissent, ... Unlike the think we that before this court assignability confronts the issue of the of a tort claim (or anticipated proceeds) its manner, such a novel issue presented should be in the case and tested adversarial parties. briefs of the Majority op., majority opinion ¶ 13 However, n.4. Yorgan's overlooks brief. contends that Hernan- assigned proceeds dez him sufficient from the future personal injury settlement of her claim to cover the cost Yorgan provided of the medical care aas result of the personal injuries Yorgan's Hernandez sustained. See pp. chief, 8-13; brief in In addition, 17-19. the amicus addressed Hernandez's of the settlement proceeds pay Yorgan chiropractic sufficient to for the services he rendered as a result the accident:

Once Ms. Hernandez assigned portion of her settle- proceeds Yorgan, ment to Dr. Ms. Hernandez had no further portion Thus, interest that of the settlement. Attorney Durkin, who assign- received notice of the ment and had no reasonable validity, basis to doubt its obliged to pay portion to Dr. of the subject settlement that were the of Ms. assignment. Hernandez's Chiropractic

Brief of Amicus Curiae Wisconsin Associa- p. assign- tion, Therefore, the issue of Hernandez's presented ment was to this court in the course of our review. Although my

¶ 61. research has located no Wis- appellate directly consin case that addressed the issue personal injuries of whether one who has claim for assign proceeds can from that claim under the common jurisdictions Wisconsin, law of courts from other recognized assign- have examined this issue have ability litigation proceeds appropriate under an agreement. They distinguished have between an older prohibition against assigning a claim for in- jury policy permitting assign- from the modern e.g., See, ment of from such causes of action. (Bankr. 1982) Mucelli, re B.R. 603-04 S.D.N.Y. (holding personal injury that while a claim was not assignable exempt property, and therefore was proceeds assigned of that claim could be and as such exempt); Musser, were not In 24 913, re B.R. 919 (Bankr. 1982) (holding patients' assign- WD. Va. that providers ments to medical payments of settlement or insurance equitable to be received in the future were 699 Co. v. Ala. Farm Bureau Mut. Cas. Ins. assignments); (Ala. 1972) Anderson, App. 154 Civ. 263 So.2d reim- requiring a clause (concluding subrogation that claim injury from the of a bursement made not for health care it was payments to the insurer a prohibited assignment). rule Wisconsin, contrary majority to an states, assign one be able to

among may our sister claim, pro which includes injury entire personal from the claim.3 v. Cornell D'Angelo ceeds received Co., 390, 398, 120 2d N.W.2d Prods. 19 Wis. Paperboard 3 by relying that on the majority opinion implies The Co., 19 D'Angelo Paperboard v. Cornell Prods. reasoning Wis. (1963), contending that 120 the dissent is 2d N.W.2d 70 a company be treated as an insurance that has should contractually subrogation right. Majority op., 13 n.4. based case, hearing if under majority contends that that is Co., 106 Rimes v. Farm Mutual Automobile Insurance State Wis. (1982) necessary 348 be to determine 2d 316 N.W.2d whole, Hernandez has been made before can whether 13 n.4. paid. Majority op., ¶ legal contention is without foundation because

This made doctrine is that underlying principle of Wisconsin's whole paid going unpaid. are to take a risk of companies insurance Therefore, injured party dispute when there is between fully compensated company is not and an insurance who fully nonpayment the burden of must fall on compensated, Rimes, take that risk. company paid the insurance Co., (citing Garrity v. Rural Mut. Ins. 2d at 276 (1977)). 537, 542, paid was not N.W.2d Furthermore, below, I explain nonpayment. take the risk of as assigned that Hernandez of the settle conclude only necessary pay Yorgan extent for the care he ment the accident that caused the need for that provided as a result of assign proceeds medical care. To excess that amount same D'Angelo, contrary policy, public explained would be 2dWis. at 397-99. (1963). D'Angelo assignment per- involved the aof injury payment

sonal claim for the of $120,000 to an injured assignee worker. Id. at 396-97. When the sued assigned personal injury prayed to enforce the claim, it damages. for in $300,000 Id. at 395. The defendant assignment asserted the was invalid because it was champertous contrary public policy. Id. We disagreed upheld assignment the of the claim, but only payment to the extent of the that had been made to assignment. holding obtain the Id. at 397. In assignment up part valid to $120,000, we relied in statutory abrogation champerty, of the defense of § (2003-04),4 then found in Wis. Stat. 331.375 now Wis. § id., Stat. signee 895.375, and on the interest the as- personal injury

had in the lawsuit because of the payment compensate inju- $120,000 it made to for the assignor limiting ries the sustained. Id. at 398. In so assignment, validity we tied its to its connection with injuries that formed the basis for the assignee lawsuit that the commenced to realize on the assignment. By limiting assignment in that manner, public policy. we concluded that it did not violate Id. at 398-99. reasoning D'Angelo applies 63. The with

equal force to the that Hernan- Yorgan. injured dez in executed favor of Hernandez was payment responsible in an accident, but from those injuries immediately following her was not available just D'Angelo. accident, as was the case in Hernan- way pay dez needed a in which to for the medical required treatment she because of the automobile acci- just assignor D'Angelo money dent, as the needed 4 All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. willing provide injury. immedi- his

after payment forgo immediate treatment, but ate proceeds assignment exchange from the settle- of assignee just was in claim, as the Hernandez's ment of requesting D'Angelo. more is not Furthermore, accident connection to the dollar amount of his than the injury personal Hernandez's the basis of that formed charges capped by assignment is claim because required as a result of the medical care she for the validity D'Angelo, of an confirmed the In we accident. up purpose, assignment to the made for a similar assignor's assignee's of connection amount injury. personal here. do no less We should assignment pro Upholding ¶ Hernandez's care, in need of medical who are ceeds will assist those pay time that it is for it at the are unable but provided. assignments permits Wisconsin injury personal claims, in the nature of contin legal agreements, gency services.5 fee order to obtain chiroprac assignment why an to obtain no reason see precluded need for the here, as the tic services should be accident as did the care arose out of the same medical Accordingly, legal I conclude that the need for plain services. Hernandez and terms of the between assigned in the an interest to injury Be Hernandez's claim. received from capped the amount of cause charges Hernandez needed for the medical care that accident that of the automobile and received because received, it is for the settlement Durkin forms the basis champertous law, Stat. under Wisconsin Wis. neither against public policy § it under Wiscon 895.375, nor is D'Angelo, 2d at 398-99. sin law.

5 case. paid himself That is how

702 C. Liens equitable,

¶ 65. Liens can see O'Connell App O'Connell, 51, 2005 WI Wis. 2d 279 694 429, contractual, N.W.2d see Weinhardt, Yates v. (1937), statutory, 496, 502, see,

Wis. or N.W. e.g., § equitable An Stat. 757.36. lien can arise (1) following present: when debt, elements are "a duty obligation owing by person another"; one (2) (3) obligation which fastens"; "res to showing charge contract!] "written an intention to particular property payment some with the of a debt." (quoting McIntyre, O'Connell, 279 Wis. 2d 602). Wis. 2d at prior O'Connell, a land, Gerald, owner greater proceeds

sued to recover a share of the from the sale land owners, of the than other the Emmett per- David, received because additional work Gerald price. formed, which he claimed the increased sale O'Connell, ¶ 279 Wis. 2d The 17. defense brought it Gerald's claim was that should been have property appeals Id., ¶ before the sold. 18. court equitable concluded that claim for Gerald's an lien proceeds brought the did not have until the sale proceeds received; therefore, were he seek could disproportionate proceeds reimbursement from pursuant § to Wis. Stat. 842.02. Id. Under Wisconsin equitable law, "an lien relates back to time it was by parties' Stoffregen, In created" conduct. See re (Bankr. 1997). E.D. B.R. Wis. necessary Here, all the elements for an equitable proceeds lien to attach to the are settlement present. undisputed First, it is that Hernandez had a chiropractic provided debt to for the he services personal injury at the time that Hernandez's claim pro- undisputed that settlement Second, it is settled. injury personal Hernandez's ceeds were obtained Yorgan provided as a medical care that the claim and played injury a in the accident Hernandez's result of undisputed that part Third, it is in that settlement. pur- document a written Hernandez executed proceeds assign ported in the settlement her interest proceeds, the extent of lien on those and to create a Yorgan provided.6 chiropractic services debt for ways only not would in which Therefore, the legally equitable enforceable lien that is an have proceeds Hernandez if the lien the settlement payment granted did of the to secure not lawful or it was attach to the settlement reason. for some other Wisconsin by examining begin to be whether injury personal a Riegle- claim can constitute from a received equitable In lien can attach. an "res" to which similarly very appeals man, held that the court of equitable an lien be- not create did stated that the benefit no evidence cause "there is provided [medical] [Krieg] services derived from the chiropractor] [the of the insurance enhanced the value Riegleman, proceeds." settlement (Bankr. (quoting E.D. Harris, 157, 50 B.R. n.4 re 1985)). appeals' errone- conclusion is The court of Riegleman lien in First, the for two reasons. ous yet equitable lien, lien, well as contractual 6 agreement provides: any my Yorgan against give hereby [a] case to Dr. hen on farther settlement, judgement proceeds my or verdict which and ah injuries attorney, myself you, my as a result of the paid to or in connection problems I have been treated health for which thereto. ignored

court that basis for enforcement.7 Second, an equitable lien arises under Wisconsin law when there is parties' a written contract that demonstrates the intent satisfy particular property. McIntyre, a debt from a Although Wis. 2d at 602. contribution to an increase in value of the asset to which the lien attaches can abe equitable rationale for creation of an lien, it is not a prerequisite. O'Connor, 279 Wis. 2d McIntyre helpful my analy- A69. review of There, sis. a son and a mother had an that at property, the time the mother sold her the son would proceeds. McIntyre, receive a sum from the sale analyzed 2d at equi- 599. We whether the son had an against subsequent table lien that could be enforced purchasers. Id. at 600-03. We concluded that there was equitable no lien because at the time that the interest conveyed, the mother did not owe the son for a debt then in existence. Id. at 602. Therefore, an element necessary creating equitable present, lien was not accordingly, there was no enforceable lien. Id. at 602-03. reaching

¶ 70. However, before conclusion, arguments we discussed some of the advanced parties. although We concluded that some liens are by specific controlled statutes that detail how lien priorities right pursue are to be ordered and how the recognized arises, them Wisconsin courts have existing given party notice of an lien to a third to whom property is transferred can make that lien enforce- property able after the transfer. See id. at 600-01; Homes, see also Inc. v. Prod. Credit Carefree Madison, Ass'n 541, 551-54, Wis. 2d 260 N.W.2d (1978).

7 I discuss the contractual Yorgan's nature of lien below. reasoning my view, In the in Berkowitz v. (N.J.

Haigood, Super. A.2d 1159-60 Ct. Law 1992),8 persuasive (concluding a Div. is that where assignment patient unequivocal made a clear and and gave litigation proceeds treating a lien future chiropractor, knowledge and the had of that enforceable).9 Berkowitz, lien, the lien the attor- was ney sign who handled the lawsuit did not the docu- purported assignment to and ments that create an of a personal injury proceeds lien the from claim. attorney's signature, Notwithstanding the lack of the by using following lien the court held the valid the (1) analyze proceeds principles it: and settlement judgment personal injury from a derived (2) assignment assignable; claim are a valid must con- person's tain clear of intent to the evidence the transfer " rights subject assignment of the and 'the matter must sufficiently capable being make it be described readily identified'(3) "[t]he must be clear unequivocal and order to effective as (4) obligor"; obligor properly "the must be notified (5) assignment"; existence of the "notified when assignment, charged duty obligor is with the pay assignee," thereby giving effect to the lien on proceeds. (quotation Berkowitz, 606 A.2d at 1159 omitted). and citations majority opinion begins Riegle its discussion with Krieg, App

man 2004 WI 679 N.W.2d 857. Majority Haigood, 10-12. Berkowitz v. 606 A.2d op., ¶¶ (N.J. 1992), Super. Jersey Div. the New Ct. Law case relied However, above, upon Riegleman. as noted the court of appeals adequately reasoning. employ did Berkowitz's (Bankr. Carroll, 1007, 1009 See also In re 89 B.R. N.D. Ga. 1988) of, (holding patient's assignment grant of a lien on, proceeds injury treating claim to doctor from enforceable). All of the factors identified Berkowitz are present First, here. the settlement assignable Hernandez's claim were under Wisconsin wording plain Second, law. the of the contract between Yorgan and Hernandez evinces a clear to intent transfer rights proceeds Hernandez's in the settlement Yorgan provided. extent of the medical care Third, the unambiguous language assignment of the was clear and unequivocal. properly Fourth, Durkin was notified of assignment through the existence the and the lien copy provided the of the contract he was more than two years he Fifth, before settled Hernandez's lawsuit. once lien, notified of the became obligor respect handling with to his of the settlement proceeds. my Yorgan

¶ 73. had a view also contractual given lien. The contractual lien here is little different gives from the lien one to a bank in the form of a mortgage exchange money purchase to a home.10 necessary acceptance, offer, What is consideration place particular and a clear intent a lien on a property. Yates, face, the Wis. at 500-02. On its Yorgan Hernandez and the contract between satisfies necessary creating requirements a contractual lien. any Also, Durkin does not claim that of the elements necessary missing to creation of a contractual lien are here, nor does he assert that he did not have notice of Accordingly, theory the lien. under either the of an equitable theory lien or the had a contrac- Witte, See Citizens Loan & Trust Co. v. (1901) 545-46, (concluding mortgagee 86 N.W. 173 that a had a by mortgage property claim to foreclose the lien created on a mortgagor, though property that was sold even longer mortgagor). in the of the possession no against lien, had a lien the settlement

tual proceeds that Durkin received. the settle- Durkin was not free to deal with According though proceeds no lien existed.

ment right facts, had the to enforce the lien these before Hernandez or the settlement Stoffregen, paid 206 B.R. at Durkin was from them. See the settlement 944. When Durkin distributed he had no Hernandez, and to he did what to himself right lawful to do.11 begins analysis by majority opinion

¶ 75. The its looking Riegleman. points a difference It out between Riegleman, and those of the case at bar: the facts of Riegleman, signed thereby agreement. Major- assented to terms of ity sign op., ¶ Here, did not the 14. Durkin Yorgan. Riegleman However, between Hernandez and suggest signature attorney of an is does that necessary concluding valid, an to that but applied analysis rather, it a basic contracts that first party determined whether the was a pay chiropractor, contract to and then it addressed obligations that followed from its initial conclusion. Riegleman, explained ¶ And, 271 Wis. 2d 27. as Riegleman assign- above, on relied Berkowitz where attorney. signed Id., ¶ ment was not 28. How- Durkin ever, the focus of this case is not whether pay Yorgan. Rather, contracted to the case turns on the sufficiency Yorgan, legal of Hernandez's contract with assigned pro- which him an interest the settlement 11 clearly that Riegleman, appeals the court of instructed to settlement are to be dispute when there is how distributed, declaratory judgment the better choice is to seek 2d 36. Riegleman, from the circuit court. 271 Wis. ¶ ignored peril. this wise advice at his 708 gave him a lien on those to secure ceeds and payment medical care she received. for the majority provides The three reasons for con 76. cluding Yorgan's lien was not enforceable. address majority in turn. The first concludes that it is them inappropriate permit enforce his lien to against Hernandez, Durkin because it was and not Majority unjustly op., ¶ Durkin, who was enriched. majority weight opinion places undue on that The majority As we have shown and as the consideration. acknowledges, accepted three-part an test that there is apply equitable lien are to to conclude that an courts unjust required established; enrichment is not has been contrary, equitable to establish an lien. To the we have unjust analyzed multiple lien claims and occasions separate and enrichment claims in the same case with reasoning. Homes, 81 Wis. 2d at distinct See Carefree Corp. River Lumber v. Universal 545-49; see also Rock Mortgage Corp. Wis., 235, 239-41, 2d (1978); Rotogravure Baer, S&M Serv. N.W.2d (1977). 454, 461-63, N.W.2d majority enforcing The also concludes equitable an lien in this matter "would seem to circum- non-liability general against attorney vent the rule Majority disagree. policy parties." op., third 39.1 attorney non-liability parties nothing has third equitable or contractual do with whether has proceeds lien that is enforceable majority opinion's reli- Hernandez's settlement. allowing theory misplaced ance on this because against proceeds the settlement to enforce a lien permitting is little different from that Durkin received proceeds against in the hands enforcement settlement assign- company of an an insurance who has notice Hosp. Serv., Inc. lien on See Associated ment and them. Co., v. Milwaukee Auto. Mut. Ins. 33 Wis. 2d (1967) (concluding 173-74, 147 N.W.2d 225 that a provided repayment contract which for of medical ex penses paid any recovery on behalf of an insured, from valid). party, obtained from a third case, either when the holder of the funds is on notice of a claim to ownership, pay their it can the funds into court and ask declaratory judgment sorting proceeds afor out how the are to be distributed. Finally, majority explains

¶ 78. that the en- forcement a lien Durkin re- legislature's policy ceived would circumvent the choice existing statutory provisions as reflected lien providers, health care which do not cover the situation Majority op., majority's before us. 40. The conclusion legislature Yorgan's if is that intended a claim like theory, legislature to be enforceable under a lien would have drafted a statute that addressed such a disagree legislature's claim. I that the creation of the statutory provision provides pre- for certain liens equitable cludes broader common law or claim. See Stasey Miller, 2d 37, 60, N.W.2d (1992) (stating "[t]his recognized court has independent existence, of statute, of common law charging attorney's payment liens that secure an (footnote judgment" of and citations omitted)). explained public policy earlier, As consid- strongly

erations bolster the outcome that I advance. Yorgan provided patient needed medical care to a who pay was not able to for the care at the moment when she was most in need care. The need for medical care arose out of the same accident did the settlement proceeds. personal injury As is the case in most cases, compensation immediately Hernandez did not receive despite the fact that she the accident. This was after promise pay of trial. to chose to settle short Without Yorgan expected to receive from her from what she pay unable to for the care she claim, Hernandez was majority itself acknowl- Furthermore, received. good policy discourage edges, health care to it is not patients entering agreements providers from into with day age payment. In a and when health for deferred expensive options few, uninsured are care is troubling my public view, other that is outcome. majority support policy of its cited reasons outweigh pressing concerns. decision do not these

II. CONCLUSION the need for medical care arose out 80. Because proceeds did the of the same accident as settlement record that Hernandez there is no evidence any provided the disburse- Durkin instructions about Yorgan proceeds that were the settlement to ment of contrary assignment executed in favor of she validly assigned Yorgan, to I conclude that Hernandez personal injury proceeds from her settlement charges up for the chiro- claim, the amount of the Yorgan provided practic I to Hernandez. treatments granted Yorgan lien conclude that Hernandez also payment for which the of the debt secure against made, and the lien can be enforced Yorgan's proceeds lien existed be- because settlement any right portion of the to retain a fore Durkin had assign- knowledge of both the and Durkin had permit Yorgan's Accordingly, I lien. would ment and of the Durkin to the extent to recover from amount due received or the settlement chiropractic provided for the care he respect- Hernandez, Therefore, whichever is smaller. fully dissent.

¶ 81. I am authorized to state that Justice Louis joins JR. this dissent. Butler, B.

Case Details

Case Name: Yorgan v. Durkin

Court Name: Wisconsin Supreme Court

Date Published: Jun 2, 2006

Citation: 715 N.W.2d 160

Docket Number: 2004AP1359

Court Abbreviation: Wis.