Damages and Remedies--chiropractor bills--action against patient and attorney--medical
provider liens--election of remedies
The trial court erred by concluding that the doctrine of election of remedies barred
plaintiff's recovery from defendant-attorney where plaintiff provided chiropratic care to Williams
and McAllister following an automobile accident, defendant-attorney settled the claims arising
from the accident but disbursed the proceeds without paying or withholding any amount to pay
plaintiff under instructions from Williams and McAllister, plaintiff filed suit against Williams and
McAllister and obtained default judgments but collected nothing, and plaintiff then filed this action
to enforce medical provider liens pursuant to N.C.G.S. § 44-50. Actions by plaintiff against either
its patients or their attorney are not inconsistent and do not seek any additional or alternative
forms of relief; there is no threat of double recovery.
Gregory Alan Heafner for plaintiff-appellant.
Bryant, Patterson, Covington & Idol, P.A., by Lee A.
Patterson, II, for defendant-appellee.
WALKER, Judge.
Plaintiff provided chiropractic care to Angela Williams and
Tony McAllister as a result of personal injuries suffered in an
automobile accident on 4 August 1995. Defendant, an attorney,
represented Williams and McAllister in their respective personal
injury claims arising out of the accident. Defendant requested
from plaintiff copies of Williams' and McAllister's medical records
and bills for its services, which totaled $2,229.99 and $2,937.00,
respectively.
Defendant settled Williams' and McAllister's claims for$6,000.00 and $10,000.00, respectively. Williams and McAlli
ster
were dissatisfied with plaintiff's services and each instructed
defendant that no portion of the settlement proceeds was to be
disbursed to plaintiff. Defendant disbursed these settlement
proceeds to Williams and McAllister without paying or withholding
any amount to pay plaintiff's bills for services.
On 1 November 1996, plaintiff filed suit against Williams and
McAllister and obtained default judgments in the amount of
$2,229.00 and $2,937.00, respectively, but plaintiff collected
nothing on the judgments. On 3 January 1997, plaintiff filed this
action against defendant seeking to enforce two medical provider
liens pursuant to N.C. Gen. Stat. § 44-50. Plaintiff alleged that
defendant failed to honor its liens when defendant disbursed the
two settlement proceeds.
In its order and judgment filed 3 February 1999, the trial
court found that the McAllister lien was invalid, based upon N.C.
Gen. Stat. §§ 44-49 and -50, and found that the Williams lien was
valid but denied recovery, based upon the doctrine of election of
remedies. The trial court concluded that:
Plaintiff in prosecuting the Magistrate's
action against Williams, individually,
resulting in a judgment in favor of the
Plaintiff, in the full amount of his billings,
which judgment was rendered by the Magistrate
Division of the District Court of Durham
County on or about December 4, 1996,
constituted an election of remedies by
Plaintiff and that pursuant to the doctrine of
election of remedies, Plaintiff cannotprosecute this claim against Defendant, and
that Plaintiff's claim as to Williams is thus
barred by Plaintiff's election of remedies as
herein set out.
On 26 May 1999, pursuant to plaintiff's motion for amendment
of judgment, the trial court found that the McAllister lien was
valid, but again denied recovery to plaintiff based upon thedoctrine of election of remedies. The trial court's order
concluded in part:
that the Plaintiff's claim to enforce the
above referenced [McAllister] lien is however
barred by the doctrine of election of remedies
for the same reasons as such doctrine is
applied to Plaintiff's claim to enforce the
lien arising from Plaintiff's treatment of
Angela Williams as same is set forth in the
January 29, 1999 Order and Judgment of this
Court in this action.
Additionally, the trial court's order stated that:
the parties have consented to and agreed that
the sole and only issue which either party may
raise on appeal from the rulings of this Court
is the applicability of the doctrine of
election of remedies as same has been applied
by this Court in this action.
Plaintiff argues the trial court erred in concluding that its
action was barred by the election of remedies doctrine.
Specifically, plaintiff contends there is nothing inconsistent in
its action against Williams and McAllister resulting in default
judgments and now bringing suit against defendant for failure to
honor its liens.
A plaintiff is deemed to have made an election of remedies,
and therefore estopped from suing a second defendant, only if he
has sought and obtained final judgment against a first defendant
and the remedy granted in the first judgment is repugnant or
inconsistent with the remedy sought in the second action. See
McCabe v. Dawkins, 97 N.C. App. 447, 448, 388 S.E.2d 571, 572
(1990). The purpose of the doctrine of election of remedies is to
prevent more than one redress for a single wrong. Id. One is held
to have made an election of remedies when one chooses withknowledge of the facts between two inconsistent remedial rights.
See Lamb v. Lamb, 92 N.C. App. 680, 685, 375 S.E.2d 685, 687
(1989). The doctrine does not apply to “co-existing and consistent
remedies.” See Richardson v. Richardson, 261 N.C. 521, 530, 135
S.E.2d 532, 539 (1964). Although Rule 20 of the North Carolina
Rules of Civil Procedure permits a plaintiff to join defendants in
one action if there is a right to relief arising out of the “same
transaction, occurrence, or series of transactions or occurrences,”
it does not require joinder. See Swain v. Leahy, 111 N.C. App.
884, 886, 433 S.E.2d 460, 462, disc. review denied, 335 N.C. 242,
439 S.E.2d 162 (1993); N.C. Gen. Stat. § 1A-1, Rule 20(a)(1999).
A plaintiff does not pursue inconsistent claims by proceeding with
separate actions. Id.
In Nye v. Lipton, 50 N.C. App. 224, 225, 273 S.E.2d 313, 314,
(1980), disc. review denied, 302 N.C. 630, 280 S.E.2d 441 (1981),
plaintiff Nye loaned defendant Roberts $33,000.00. Defendant
Lipton was Roberts' attorney and handled Roberts' finances. Id.
Plaintiff alleged that both Roberts and Lipton represented to him
that the loan was to be paid off from the sale of a note owned by
Roberts. Id. Additionally, plaintiff alleged that Roberts gave
written instructions to Lipton to pay the plaintiff the amount ofthe loan plus interest; however, plaintiff was never paid. Id.
Plaintiff filed suit against the estates of Roberts and Lipton for
recovery of the money owed by Roberts. Id. Roberts did not
contest the allegations and summary judgment was entered against
him. Id. Plaintiff was also granted summary judgment against
Lipton's estate, which appealed and argued that summary judgment
was improper because plaintiff elected his remedy by obtaining a
judgment against Roberts. Id. at 229, 273 S.E.2d at 316.
This Court held:
plaintiff is pursuing separate claims growing
out of the same transaction. His claim
against [the borrower] is based on the theory
that he has made a loan to [the borrower]
which has not been paid. His claim against
the appellant is on the theory that
[appellant] as attorney-in-fact for [the
borrower] was under instructions from [the
borrower] to pay the debt to plaintiff, and
[appellant] failed to pay the debt after
receiving funds to do so. These two claims
are consistent and plaintiff may pursue both
of them. The payment of either claim will
extinguish both.
Nye, 50 N.C. App. at 229, 273 S.E.2d at 316.
Here, plaintiff's action against McAllister and Williams was
based on the theory that amounts owed for services had not been
paid. Plaintiff's present action against defendant is based on the
theory that defendant violated N.C. Gen. Stat. § 44-50 by failing
to honor valid medical provider liens. See N.C. Baptist Hospitals,
Inc. v. Mitchell, 323 N.C. 528, 532, 374 S.E.2d 844, 846 (1988)
(agreeing with defendant's argument that “N.C.G.S. § 44-50 provides
the only mechanism by which to obtain funds from an attorney whohas received them for a client in satisfaction of a personal injury
claim”).
Williams and McAllister are liable to plaintiff for having
received services for which they have not paid. Defendant is
liable to plaintiff pursuant to N.C. Gen. Stat. § 44-50. Actions
by plaintiff against either its patients or their attorney are not
inconsistent and do not seek any additional or alternative forms of
relief. There is no threat of double recovery as the defendants in
each action can claim contribution for payments made by the other,
both in defense of the suit and in defense of any proceedings to
collect a judgment.
Accordingly, the trial court erred in concluding that the
doctrine of election of remedies barred plaintiff's recovery from
defendant.
Reversed.
Judges TIMMONS-GOODSON and SMITH concur.
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