Is a Hospital Lien Dispute Subject to Texas Anti-Slapp - Personal Injury Attorneys Get Guidance from the Tyler COA in 2019.

The Tyler COA is on the board early in 2019 with an interesting opinion that could have ripple effects on hospital lien disputes. ETX Successor Tyler f/k/a East Texas Medical Center v. Terrie Pridgeon, as Guardian of the Person and Estate of Jason C. Dubos, NO. 12-18-00083-CV, 2019 WL 623603 (Tyler COA 2019) provides some insight.

Defendant hospital filed a Texas Anti-Slapp against the plaintiff’s declaratory judgment claim concerning (a) the limitations on the hospital’s lien under Tex. Prop. Code §55.004(d)(1) and; (b) what is the reasonable amounts owed under the statute.  While I do not practice in personal injury law, I assume this dispute must occur fairly regularly in the personal injury context.

First, the Tyler COA determined the hospital filing a lien falls within the Right of Free Speech under the Texas Anti-Slapp.  The Tyler COA did not reach the issue of whether the lien also would trigger protection under the Right of Petition.

Second, the Tyler COA held that both the personal injury exemption (§27.010(c)) and commercial speech exemption (§27.010(b)) applied to exclude plaintiff’s claim from the ambit of the Texas Anti-Slapp.  Because the hospital lien is designed to attach to judgments or settlement of a personal injury action it fell within the personal injury exemption.  Further, because the lien related to medical services provided by the hospital to the underlying injured party it fell within the commercial speech exemption.

Third, the Tyler COA took the somewhat unusual step of addressing whether the plaintiff met her burden concerning the declaratory judgment claim.  Even though the Tyler COA could have stopped its analysis after holding that two exemptions apply, it went on to conclude plaintiff established the elements of a justiciable controversy that will be resolved by the declaration sought.  Interestingly, the Tyler COA did not adopt the hospital’s position that the plaintiff had to establish the amount of the lien that is recoverable (arguably a difficult proposition that early in the dispute) but only that the declaration sought would resolve the controversy.

(As a side note, if the Texas Supreme Court takes the issue up, by addressing whether plaintiff met her elements prevents a delay in sending the case back to the Tyler COA if the TSC disagreed with the exemption analysis).

Lastly, the Tyler COA also rejected the affirmative defenses brought by the hospital because quasi-estoppel and estoppel by contract do address whether a justiciable controversy is resolved by the declaratory judgment claim.

(Another side note – the Tyler COA did point out that the hospital did not argue that the declaration sought would not resolve the controversy.  If the hospital argued that the dispute was already ripened there may have been a different outcome, but that is a debate for another day).

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Texas Supreme Court- 2018 Year in Review (Part 3 of 5): Castleman, the Commercial Speech Exemption, and Abatecola.

Castleman v. Internet Money Limited, 546 S.W.3d 684 (Tex. 2018) is arguably the most important decision by the TSC on the Texas Anti-Slapp in 2018 because it provided clarity to the commercial speech exemption. 

 §27.010(b) states “This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

 

The TSC established a four factor test that negates a defendant’s ability to bring a Texas Anti-Slapp claim when: “(1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.”

 Abatecola v. 2 Savages Concrete Pumping, LLC, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.] June 26, 2018) (mem. op.) provides an example of the application of the commercial speech exemption.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fe6d5ad2-48e2-49fc-af43-ffa3edb60983&coa=coa14&DT=Opinion&MediaID=ebcef764-829c-4e67-a867-167a106999d3

 In Abatecola, Defendants were accused of tortiously interfering with plaintiff’s customers.  The Houston COA determined that defendants’ statements to customers were about Defendants’ services (i.e. “buy my services”) to potential customers of such services.  Thus, the exemption applied and Defendants could not use the Texas Anti-Slapp against that particular tortious interference claim.

 The Defendants are trying to appeal but (as of this post) have not filed their brief.  If the Abatecola decision holds, this type tortious interference claim will have a safe harbor from the Texas Anti-Slapp.

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