¶ 23 I respectfully dissent with respect to part III. I fully concur with the remainder of the majority opinion.
¶ 24 "In Utah, attorney fees are awardable only if authorized by statute or by contract." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). In this case, there is neither a contract nor a statute by which McCoy is entitled to fees from the State.
¶ 25 There is no question that McCoy did not enter into a contractual arrangement with the Office of Recovery Services. He offered to do so, and to file a claim on behalf of the State for reimbursement for sums expended by the State. The State declined his offer. McCoy then filed his action seeking to recover for the injured Mr. Sevey an amount over and above that potentially due the State.
¶ 26 McCoy failed to alert the State when he discovered that he had previously misinformed the State of the proper insurance company. This failure significantly diminished the State's ability to alert the third party of the State's claim, or to participate in any settlement negotiations. McCoy rendered no service to the State that would have assisted the State in recovering its portion of the reimbursement directly from the third party. As authorized by statute,1 the State sought its recovery from the proceeds received by Mr. Sevey. The State has a statutory lien on this amount,2 and any recovery accrues first to the State to replenish the public coffers prior to compensating either Mr. Sevey or his attorney.
¶ 27 The majority relies upon the language of subsection (4) of section 26-19-7 in finding an obligation on the part of the State to pay McCoy an attorney fee from the recovered amount. Subsection (4) reads:
(4) The department may not pay more than 33% of its total recovery for attorney's fees, but shall pay a proportionate share of the costs in an action that is commenced with the department's written consent.
Utah Code Ann. § 26-19-7(4) (1998). I find nothing in this statutory language that requires any payment to McCoy when the department declined to give written consent. I read this language simply as a limitation on the maximum fees that may be paid when written consent has been given, without a limitation on the State paying its proportionate share of costs for the same action.
¶ 28 I disagree with my colleagues that the statutory language above quoted "in no way limits the award of fees to recipients who obtained consent to pursue the State's claim." I think it does just that: When an action is commenced with the State's consent, any payment for attorney fees by the State is limited to a maximum of 33% of its total recovery. Moreover, that is all the statute does. It simply does not address any obligation or lack of obligation to pay attorney fees when the State's consent is not given.
¶ 29 I find no other statutory basis, nor do my colleagues identify one, that authorizes the State to pay McCoy his claimed fee from the public coffers. Absent a statute, or contract, providing such an authorization, I would hold that McCoy is not entitled to his fees in this case.
¶ 30 The legislature has granted the Office of Recovery Services the discretion to consent or not to consent to the representation of a particular attorney. Even if this is "inherently unfair" as my colleagues suggest, it is simply the law: The policy choice has been made by the legislature in this instance, and challenges to the fairness of the *Page 579 policy must be addressed to them.
¶ 31 I would affirm the judgment of the trial court.
¶ 32 Chief Justice Howe concurs in Justice Wilkins' concurring and dissenting opinion.