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11/07/94 KYLE BRASE v. WILLA D. LOEMPKER

November 7, 1994

KYLE BRASE, BY HIS MOTHER AND NEXT FRIEND, JOANN BRASE; JOANN BRASE, INDIVIDUALLY; BRENT LANDAU, BY HIS FATHER AND NEXT FRIEND, SYLVAN LANDAU; AND SYLVAN LANDAU, INDIVIDUALLY, PLAINTIFFS,
v.
WILLA D. LOEMPKER, DEFENDANT (WILLIAM J. BILLEAUD, PETITIONER-APPELLANT, V. COUNTRY COMPANIES INSURANCE COMPANY, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Madison County. No. 92-L-493. Honorable Paul E. Riley, Judge, presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Goldenhersh, Lewis, Chapman

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

This action arose out of an automobile accident between plaintiff, Kyle Brase, a minor, represented by his mother and next friend, Joann Brase, and defendant, Willa D. Loempker. Plaintiff was insured by Country Mutual Insurance Company (Country Mutual), and defendant was insured by State Farm Mutual Automobile Insurance Company (State Farm). Ultimately, plaintiff's attorney reached a settlement agreement with defendant's insurance company for $12,000, of which $3,800 was paid to Country Mutual by separate check to reimburse it for its medical payments made under plaintiff's policy. Plaintiff's attorney filed a petition for adjudication of attorney's lien, claiming that attorney fees and a pro rata portion of the litigation expenses incurred by plaintiff's attorney should be deducted from the $3,800 subrogation portion of the settlement. The trial court denied the petition, and plaintiff's attorney appeals. Consequently, the only parties taking part in this appeal are plaintiff's attorney and Country Mutual. The issue we are asked to consider is whether the fund doctrine applies to the facts of this situation so as to justify the reduction of the subrogation award to the medical-payment insurer by one-third for attorney fees plus a pro rata amount of the insured's expenses. We conclude that the doctrine does apply and therefore reverse and remand.

The accident occurred on April 4, 1992. On April 6, 1992, Country Mutual obtained a copy of the police report concerning the accident. On April 7, 1992, Country Mutual took an oral report from plaintiff. Country Mutual also attempted to take an oral statement from defendant, but defendant refused. On May 15 and May 22, 1992, Country Mutual sent letters to State Farm notifying State Farm of its payment of plaintiff's medical expenses to date and asking State Farm to acknowledge Country Mutual's subrogation rights under its policy with plaintiff. The letter of May 15, 1992, specifically stated: Please keep our subrogation rights in mind when settling your claim with Mr. Brase." The letter of May 22, 1992, stated: "Please honor our subrogation rights when settling your claim with Mr. Brase."

On June 2, 1992, Country Mutual, through its field claim representative, Jerry Krone, wrote plaintiff's attorney, Bill Billeaud, and informed him of Country Mutual's desire to protect its subrogation rights for the medical payments made on plaintiff. On June 10, 1992, claims coordinator Jim Miller of Country Mutual sent a letter to State Farm with a carbon copy to Billeaud which stated that Country Mutual wanted its medical subrogation claim deleted from any settlement negotiations or litigation so that Country Mutual could handle the matter directly with State Farm. The letter also explained that Country Mutual is a member "of mandatory medical arbitration with State Farm, and in the event we should approach the statute of limitations, we will take the necessary measures at that time to protect our claim." The arbitration program between State Farm and Country Mutual provided for a two-year statute of limitations.

On June 12, 1992, Billeaud wrote State Farm and stated, in pertinent part: "For the purpose of protecting and perfecting our attorney's lien herein, please be advised that we claim a percentage of any sum recovered herein, whether same be by compromise or suit." Billeaud attempted to reach settlement with State Farm prior to filing suit, but no settlement was reached because State Farm claimed negligence on the part of plaintiff. On June 15, 1992, Billeaud filed suit against defendant. On June 24, 1992, Country Mutual's claims coordinator again told Billeaud through a letter that Country Mutual would "continue to deal direct with State Farm in regard to our medical subrogation."

On August 13, 1992, State Farm tendered an offer to settle with Country Mutual for 80% of the medical pay, but Country Mutual refused to settle for anything less than 100%. Jim Miller, Country Mutual's Claims coordinator, explained that he refused the 80% offer at that time and was in no hurry, as he had two years to file for arbitration with State Farm. The August 13, 1992, letter also stated that State Farm was in receipt of Country Mutual's medical subrogation notice and that State Farm "will protect you at the time of settlement."

Discovery proceeded. Plaintiff and defendant exchanged requests for production and interrogatories and filed responses. Depositions were taken, and expenses of over $400 were incurred by plaintiff. Country Mutual did not share in the work or in the cost. Billeaud made a demand for settlement through defendant's attorney in January 1993. Defendant's attorney then tendered an offer of $10,000 to settle the case, but that offer was refused. Finally, State Farm made a counteroffer of $12,000 with the stipulation that defendant be released from all liability in connection with plaintiff's claims against defendant, including the subrogation claim of Country Mutual. Plaintiff was willing to accept the offer. On August 13, 1993, an order dismissing the complaint with prejudice was entered by stipulation of the parties. Country Mutual refused to pay any attorney fees or any portion of the expenses in the case. Billeaud filed a motion to adjudicate attorney's lien since State Farm intended to issue a separate check to Country Mutual in the amount of $3,820.37, the total medical subrogation claim. He received attorney fees and expenses only on that portion of the settlement which exceeded the $3,820.37 subrogation payment. Billeaud asked the court to determine whether he was entitled to one-third of the sum under the fund doctrine, plus a pro rata share of expenses. He acknowledged at a hearing on the matter that he was never retained or authorized by Country Mutual to represent Country Mutual's interests. The trial court denied Billeaud's motion, finding no reason why plaintiff's counsel could not have filed suit on behalf of his client for damages without including the subrogation claim.

II

The issue presented is whether the fund doctrine applies to the facts presented so as to justify reduction of the subrogation award to the medical-payment insurer, Country Mutual, by one-third for attorney fees plus a pro rata amount of the insured's expenses. The trial court refused to apply the fund doctrine because of Country Mutual's notice to plaintiff's attorney that it did not want his assistance but wanted instead to deal directly with State Farm on its medical subrogation claim. However, we believe the fund doctrine is applicable to the instant case.

The fund doctrine is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from the creation of the fund. ( Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 361 N.E.2d 1100, 5 Ill. Dec. 572.) In order to recover fees under the fund doctrine, the attorney must show (1) that the fund was created as the result of legal services performed by an attorney, (2) that the subrogee did not participate in the creation of the fund, and (3) that the subrogee benefited out of the fund that was created. ( Meyers v. Hablutzel (1992), 236 Ill. App. 3d 705, 707, 603 N.E.2d 91, 93, 177 Ill. Dec. 310.) "When these conditions are shown to exist, then equity will apportion the fees and expenses incurred in creating the fund among those who benefit from its creation." ( Smith v. Marzolf (1980), 81 Ill. App. 3d 59, 64, 400 N.E.2d 949, 953, 36 Ill. Dec. 369.) However, a plaintiff may not recover attorney fees under the doctrine while rendering services for an unwilling recipient. Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 470 N.E.2d 6, 83 Ill. Dec. 251.

In the instant case, the trial court, citing Tenney and Perez v. Kujawa (1992), 234 Ill. App. 3d 957, 602 N.E.2d 38, 176 Ill. Dec. 731, found that because Country Mutual notified plaintiff's attorney prior to plaintiff's attorney filing suit that Country Mutual did not want plaintiff's attorney to collect its subrogation claim but intended to represent itself in the matter, Country Mutual was an unwilling recipient of plaintiff's attorney's services and equity did not justify an award of attorney fees out of the subrogation lien. However, it has been said that Tenney is not to be interpreted "to preclude application of the fund doctrine whenever an insured notifies its insured or an attorney representing its ...


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