Specially Concurring.
Because the majority finds that there is still an issue of material fact to be decided, I specially concur in the opinion. It is clear that summary judgment should not have been granted because the district court failed to construe the facts most favorably to the non-moving party as is required under the applicable standard of review. There is evidence in the record that State Farm made the decision to pay the subrogated claim before any effort had been expended by the attorney. The affidavit of the claims adjuster specifically states that nothing the attorney did affected her decision to pay the claim. This factual dispute makes it clear that summary judgment should not have been granted.
I believe that the majority opinion misinterprets the case of Miner v. Farmers Insurance Co., 116 Idaho 656, 778 P.2d 778 (1989). In Miner, State Farm followed its usual procedure of sending two checks to the plaintiff upon reaching a settlement, one check to the plaintiffs and their attorney; and one to the plaintiffs, their attorney and the subrogee. The subrogee, again Farmers Insurance Co., claimed that it was entitled to the entire subrogated amounts without deductions for attorney fees. Id. at 657, 778 P.2d at 779.
The Court adhered to its “fund doctrine” analysis, but found for Farmers because neither plaintiffs nor their attorney had notified Farmers of the settlement negotiations prior to the settlement. Id. at 658-59, 778 P.2d at 780-81. This Court held that “[n]otice to an insurer is a necessary prerequisite in a ease like this before the insured is entitled to charge the insurer for attorney fees for the recovery of the subrogated interest.” Id. at 658, 778 P.2d at 780.
In the present case, Aherin claims that since Farmers was given notice of his intent to collect the subrogated amounts he should be able to recover from the fund. However, this reasoning does not appear to be in line with the Court’s holding in Miner.
As discussed above, the Court in Miner held that notice must be given to the subrogee before attorney fees could be collected from the fund. Implicit in this holding is that the subrogee could make the decision not to employ the attorney for the collection of the subrogated amount. The notice requirement would be worthless, if after having *154been notified, the subrogee could not refuse the services it is being notified of. Allowing the attorney to collect from the subrogee after the subrogee has clearly rejected the offer of service creates an unconscionable result.
Here, Farmers knew it did not require the services of an attorney to collect its subrogation claim. Farmers had many previous dealings with State Farm in which the subrogated amounts were reimbursed without the need for an attorney. Farmers had anticipated just such a situation when it entered into the inter-insurer arbitration agreement.
This also is not a situation where Farmers sat back and accepted a windfall. Farmers contacted State Farm on numerous occasions regarding its claim. It notified State Farm regarding the protection of the claim after the running of the statute of limitations, and was reassured that its claim was in no danger. On these facts, it is hard to imagine the equity of the fund doctrine in requiring Farmers to pay for legal services it neither wanted nor required.