(concurring in the dissent) — I agree with the dissent and write only to express my concern that the majority has abandoned the principle that attorney fees can be awarded on an equitable basis only where a recognized equitable ground exists for such an award. The majority’s focus seems to be that State Farm must pay a share of its insured’s costs and attorney fees because otherwise the outcome for the insured is not the same as it would be in cases where the insured’s total amount received is derived from funds including those recovered from a tortfeasor or the tortfeasor’s insurance company, i.e., funds recovered from a source other than the insured’s own insurance company. However, there is no “outcome” rule for an equitable award of attorney fees. The question is not whether this insured ends up with the same or less dollars in her pocket than another insured, but whether a recognized equitable ground for an attorney fee award applies.
The dissent is correct that the common fund doctrine does not allow for attorney fees to be awarded here because there was no creation of a common fund by which the insurance company benefited. There are simply no dollars involved in *322this case other than those paid by Rebecca Hamm’s own insurance company, State Farm. State Farm has not been benefited through Hamm’s attorney’s efforts to secure the insurance proceeds—all the funds are paid by State Farm. It therefore does not matter that the insured does not have the same dollars at the end that she would have had if a recovery or settlement from another source had been achieved. The case is not about the amount of her net dollars received, nor about her insurance proceeds. Instead, the question here is whether her costs and attorney fees will be shared by State Farm, and on this question the majority’s charts are meaningless—they do not have anything to do with the common fund rule.
The majority’s claim that the insurance company is treated as if it is two entities—and as an underinsured (UIM) carrier it is treated as the tortfeasor—is not a legitimate explanation of why the common fund doctrine should apply here. That analysis explains why an insurance company may have to provide coverage based upon a tortfeasor’s acts, and also why a UIM carrier may set off amounts recovered from a tortfeasor from amounts owed under UIM policy provisions. It cannot in any way change the factual circumstances here: only one insurance company has paid all the funds in this case and it has not benefited by any funds obtained from any other source. The insurance company can hardly be said to have benefited from its own payments.11
Nor is it any answer to say that this case simply presents a new scenario for the rule in Mahler, i.e., where the tortfeasor is uninsured. Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632, 966 P.2d 305 (1998). Regardless of whether the tortfeasor is insured, underinsured, or uninsured, the *323court must be able to justify application of Mahler by showing that a common fund benefiting the insurer has been created through the efforts of the insured’s attorney. It has not done so and cannot do so under these circumstances.
The majority opinion takes the common fund rule far beyond its outer limits.
Johnson, J., concurs with Madsen, J.
As the dissent notes, this case is unlike Winters v. State Farm Mutual Automobile Insurance Co., 144 Wn.2d 869, 31 P.3d 1164, 63 P.3d 764 (2001). There, the insureds secured proceeds from the at-fault driver or the driver’s insurance company and then recovered from their UIM carriers. “These pooled funds became the common fund from which the PIP [personal injury protection] insurer was able to recoup payments it had made.” Id. at 881. Thus, in Winters the insurers benefited from funds secured by the insureds from other sources.