(concurring in the result).
I am not persuaded that, having paid to its insured an amount equal to the policy limits of the tortfeasor’s liability-insurance policy, the plaintiffs uninsured/underin-sured-motorist (“UIM”) insurance carrier’s right to reimbursement of that amount is not properly viewed as a right of or in the nature of subrogation. Nonetheless, I concur in the result reached by the main opinion for the reason that, regardless of the extent to which the matter is properly understood as one of subrogation, the fact is that no portion of any recovery against the tortfeasor can properly be considered a “common fund.”
No dollar that might be recovered in an action against the tortfeasor would be subject to a claim by more than one party. Specifically, when the UIM carrier has made a payment as provided by Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala. 1991), the only party with a right to the proceeds of an action against the tortfeasor up to the amount of that LambeH payment is the UIM carrier. Any amounts recovered in that action in excess of the amount of the LambeH payment (i.e., an amount in excess of the tortfeasor’s liability-policy limits) but not exceeding the UIM carrier’s policy limits, will belong solely to the UIM carrier as well under subrogation principles, in light of its obligation to pay to the plaintiff that amount under its UIM policy. (As is true of the earlier LambeH payment to the plaintiff by the UIM carrier, the plaintiffs attorney can recover any fee earned in relation to the recovery of moneys in excess of the LambeH payment, up to the liability limits of the UIM carrier, from the UIM payment itself.) Finally, the portion of any recovery that is in excess of both the tortfeasor’s liability-policy limits and the UIM carrier’s policy limits belong solely to the plaintiff. Thus, there is no portion of the recovery in which more than one party (as between the plaintiff or plaintiffs on the one hand and the UIM carrier on the other hand) has an interest at the time of that recovery. Accordingly, I see no basis for the award of an attorney fee based on a “common-fund” theory.