dissenting:
I respectfully dissent from the majority’s decision in this case because I do not find that the common-fund doctrine applies to either the medical-payment or underinsured-motorist benefits paid by Country If an attorney creates a fund in which someone other than the attorney and his or her client has an interest, the common-fund doctrine allows the attorney to seek payment of fees by the nonclient for the proportional share of the fees due, to prevent the nonclient from being unjustly enriched by the attorney’s efforts. See Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909, 911 (1995); Scholtens v. Schneider, 173 Ill. 2d 375, 385, 671 N.E.2d 657, 662-63 (1996). Plaintiff here sued the tortfeasor and secured a settlement of $50,000. Plaintiff also had his own policy of insurance with Country, which included both coverage for medical expenses and underinsuredmotorist coverage. Without claiming any right of subrogation, Country allowed plaintiff to settle his claim against the tortfeasor. Country voluntarily paid the amounts due under the medical-payment provision of its policy with plaintiff. Upon settlement between plaintiff and the tortfeasor, Country then issued a check to plaintiff for the bargained-for underinsured-motorist coverage ($100,000), deducting first the amount of the settlement with the tortfeasor ($50,000) and then the amounts it had paid for plaintiff’s medical expenses ($20,420.60), as provided in the insurance contract.
I would ask, where, under these circumstances, is the “fund” created by plaintiff’s counsel’s efforts? It appears to me there is none. The fees that counsel sought constitute one-third of the medical payments made under the “med pay” provisions of plaintiffs policy with Country. The repayment of the $20,420.60 to Country was not from the proceeds of the settlement with the tortfeasor but, rather, was a deduction from the underinsured-motorist coverage payment wholly controlled by Country and paid to plaintiff pursuant to the insurance contract. Plaintiffs counsel did nothing to create that “fund.” It arose by operation of plaintiffs contract of insurance with Country. While the majority would find Country was unjustly enriched by reason of the efforts of plaintiffs attorneys, I believe plaintiffs attorneys are, by the majority’s decision, unjustly enriched by Country’s compliance with its insurance contract with plaintiff.
Country did not file a notice of subrogation against either the tortfeasor’s insurer or plaintiffs counsel. Country had no need to do so, because the recoupment of the medical payments advanced by it came from the reduction of its liability under the underinsured-motorist coverage, not by way of reimbursement from any funds generated by plaintiffs counsel’s efforts.
As I believe Country is correct in its position, I would also reverse the award of additional fees to plaintiffs counsel for vexatious delay, which I find neither vexatious nor in bad faith but completely justified.