dissenting.
[¶ 10] I respectfully dissent.
[¶ 11] There is no ambiguity in the language of the insurance contract. The policy provides
If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall:
(i) hold in trust for us the proceeds of the recovery; and
(ii) reimburse us to the extent of our payment.
(emphasis added).
[¶ 12] An insurance policy is a contract. Ouellette v. Maine Bonding & Cas. Co., 495 A.2d 1232, 1234 (Me.1985) (“an insurance policy is a contract”). Unambiguous contractual language is interpreted according to its plain and commonly accepted meaning. Seashore Performing Arts Ctr., Inc. v. Town of Old Orchard Beach, 676 A.2d 482, 486 (Me.1996).
[¶ 13] With knowledge of her obligation to repay, Ms. Van Hall made a claim for medical payments pursuant to her automobile insurance policy. She, by contract, had agreed to reimburse her insurer to the extent of its payment should she recover damages from the person responsible for her injuries. She engaged the services of an attorney to represent her in the pursuit of her damages. She signed a contingency fee agreement with the attorney whereby she agreed to pay him “25% of the gross amount collected plus out-of-pockets if this matter is resolved prior to the commencement of litigation.” She paid the attorney 25% of the amount she received in settlement of her claim. She then tendered to York Mutual $3,350 (the amount her insurer had paid to her less one-third of that amount). Ms. Van Hall urges the court to adopt the “common fund” doctrine. Ms. Van Hall seeks to have York pay her attorney for services rendered to her to enable her to fulfill her contractual obligation to York. She posits that to do otherwise would be “unjust.”
[¶ 14] I question the wisdom of our rewriting an unambiguous contract between an insured and an insurer in a situation in which there was no showing either that Ms. Van Hall’s attorney did not receive a reasonable fee for his services or that Ms. Van Hall in some way received less in settlement of her claim than she thought she would when she made her claim for reimbursement for her medical bills from her insurer and when she later signed a contingent fee agreement with her attorney. See Theberge v. Darbro, Inc., 684 A.2d 1298, 1301 (Me.1996). Is it not unjust to deprive York Mutual of its contractual right to reimbursement in full? It based its premiums on that expectation. I would affirm the judgment of the Superior Court and leave the approval of the policy form to the Insurance Superintendent and to the Legislature to adopt the “common fund” doctrine as it appears to have done by its enactment of section 2910-A of Title 24-A of the Maine Revised Statutes. P.L.1997, ch. 369, § 2 (eff. Sept. 19, 1997). The legislative action, prospective in effect, gave insurers a chance to adjust their premiums.