Alisa Mills v. Kevin Fletcher--Appeal from County Court at Law No 2 of Bexar County

DISSENTING OPINION

 
No. 04-06-00345-CV
Alisa MILLS,
Appellant
v.
Kevin FLETCHER,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 296698
Honorable Irene Rios, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice (concurring in judgment only)

 

Delivered and Filed: May 16, 2007

 

This appeal pits the sweeping tort reform changes of HB4 against the long-standing collateral source rule. Because I believe the majority opinion sweeps a little more broadly than the Legislature intended, I respectfully dissent.

The language of the statute in question, section 41.0105 of the Texas Civil Practice and Remedies Code, is not a model of clarity, perhaps because it underwent numerous revisions before it was finalized. See Kirk L. Pittard, Dead or Alive: The Collateral Source Rule After HB4, The Advocate, Winter 2006, at 76, 76-77 (outlining the five versions of the statute that were considered before section 41.015 was enacted). Regardless of whether the statute is ambiguous, this Court is entitled to consider various factors as we attempt to discern the statute's meaning. The Code Construction Act informs us that when the Legislature enacts a statute, it is presumed that the entire statute is meant to be effective; a just and reasonable result is intended; feasible execution of the statute is contemplated; and public interest is favored over any private interest. Tex. Civ. Prac. & Rem. Code Ann. 311.021 (Vernon 2005). I believe that the interpretation of section 41.0105 advocated by Mills and adopted by the majority fails to support any of these presumed intended outcomes.

Effectiveness of Entire Statute

The interpretation of section 41.0105 endorsed by the majority fails to give meaning to the term "incurred." One incurs a liability when one suffers or brings on oneself a liability or expense. Black's Law Dictionary 782 (8th ed. 2004). Medical charges are incurred at the time the services are rendered to the patient. See Black v. American Bankers Ins. Co., 478 S.W.2d 434 (Tex. 1972) (concluding that patient incurs hospital expenses at the time he enters the hospital and receives medical services); American Indemnity Co. v. Olesijuk, 353 S.W.2d 71, 72-72 (Tex. Civ. App.-San Antonio 1961, writ dism'd) (holding that insured incurred medical expenses when he entered hospital and received medical services). Section 41.0105 provides that recoverable medical damages include "expenses incurred ... limited to the amount actually paid or incurred by or on behalf of the claimant." The statute does not redefine the term "incurred" and it sets forth no different point in time from which to determine what expenses have been incurred. As one commentator has noted, there can be reasonable and necessary medical expenses that are not paid, but that are nonetheless incurred, thus demonstrating that "the two words must mean different things." See Jim Perdue, Jr., Maybe It Depends on What Your Definition of "Or" Is? A Holistic Approach to Texas Civil Practice

 

and Remedies Code 41.0105, The Collateral Source Rule, and Legislative History, 38 Tex. Tech. L. Rev. 241, at 250 (2006).

Just and Reasonable Result

Perhaps the most compelling reason to reject the reading of the statute adopted by the majority is that it does not produce a just or reasonable result. In a nutshell, the wrongdoer is rewarded by the injured party's foresight to obtain medical insurance. In many cases it will likely be the wrongdoer's liability insurance carrier that actually benefits from the injured party's foresight; but one thing is certain: insult is added to injury when the injured party pays premiums for medical insurance coverage and then watches the benefits of that coverage lower the accountability of the tortfeasor for her negligent conduct. Cf., Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980) (recognizing that collateral source rule justly deprives a wrongdoer of the benefit of insurance independently obtained by the injured claimant).

Feasible Execution of the Statute

The statutory interpretation advanced by the majority spawns some very practical questions that suggest difficulty, not feasibility, in execution of the statute. The majority opinion ultimately stands for the proposition that the statutory language "actually paid or incurred" means "actually paid or actually incurred as ultimately determined by the provisions of an insurance policy." Medical bills can take months to be generated by the providers, and even longer periods to be processed by insurance carriers. At what point does a court decide the bills have been incurred? What happens when there is a dispute regarding the amounts due or the extent of coverage? What if adjustments are made after litigation is initiated or concluded? The statute provides no answers to these questions; and here is why the statute is silent on these issues - it was not intended to spawn these issues. There is simply no indication that the collateral source rule was eliminated by section 41.0105, thus there is no need for these questions to arise.

Public Interest vs. Private Interest

The public interests at stake here seem to be that (1) citizens should be responsible and purchase medical insurance to the extent they are financially able to do so; (2) responsible citizens should reap the full benefit of insurance coverage they have purchased; (3) tortfeasors should be held accountable for their actions; and (4) tortfeasors should not be fortuitous beneficiaries of an injured party's foresight to purchase medical insurance. The private interests at stake are not expressly set forth in this record. One can reasonably assume that in many cases the private interest will be that of liability insurance carriers seeking to minimize their expenses in resolving liability claims. Again, there is nothing in the statute indicating the Legislature sought to elevate private interests above public interests. All evidence is to the contrary. The laudable public benefit of the collateral source rule was continued by the Legislature when it rejected earlier proposed versions of section 41.0105 that would have eliminated the collateral source rule.

I recognize that the meaning of section 41.0105 is of great significance to many parties in this state, and that the majority decision was not reached lightly. However, because I believe the majority decision erroneously allows Alisa Mills to reap the benefits of Kevin Fletcher's decision to purchase health insurance, I respectfully dissent.

Catherine Stone, Justice