dissenting.
I respectfully dissent. The majority states that in an absence of a fund within the control of the court, an attorney is not entitled to recover fees under the common fund doctrine merely because his actions conferred a benefit on members of a class. I disagree.
Weiss v. Bruno, 83 Wash. 2d 911, 523 P.2d 915 (1974), holds that there does not necessarily have to be a monetary fund created or preserved by a litigant as long as the litigant confers some other substantial nonmonetary benefit on an ascertainable class. See, also, Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593 (1970). In Weiss, the plaintiffs were allowed to recover attorney fees after instituting a successful *665suit challenging the expenditure of public funds made pursuant to unconstitutional legislative and administrative actions after a refusal by the appropriate agencies and officials to maintain such a challenge. Under the principle set out in Weiss, a court, using equitable discretion, may award attorney fees where a litigant obtains a decision which confers a substantial benefit on the members of an ascertainable class.
Similarly, in In re Guardianship & Conservatorship of Bloomquist, 246 Neb. 711, 523 N.W.2d 352 (1994), we addressed the issue of whether a hospital, with a perfected statutory lien in regard to treatment rendered to a patient unable to pay for such medical services, is obligated to share pro rata in the patient’s reasonable costs of recovery from the third-party tort-feasor who caused the patient’s injuries. We concluded that “the ultimate question is not whether the hospitals are lienholders or subrogors, but whether the hospitals have been so benefited by the patients’ attorneys who rendered services in obtaining settlements that the attorneys should in equity be allowed their compensation out of the whole fund.” Id. at 723-24, 523 N.W.2d at 359.
The majority distinguishes the instant case from Bloomquist by stating that no common fund was created under the jurisdiction of the district court by the efforts of Kindred’s attorney. While it is true that Kindred’s attorney did not create a “pile of money” from which a court could make equitable distributions to all who claimed an interest, Kindred’s attorney did create a certain and ascertainable pecuniary benefit for his client in the form of a workers’ compensation award, and that this benefit inured in its entirety, by operation of city ordinance, to the advantage of the Retirement System. The Retirement System received a substantial nonmonetary benefit from the setoff of Kindred’s workers’ compensation benefits against his service-connected disability pension as a result of the actions of plaintiff’s attorney. To preclude application of the common fund doctrine because the common fund is not within the jurisdiction of the district court defies the equitable principle of unjust enrichment which lies at the heart of the doctrine. Further, to hold that the workers’ compensation award is not a common fund against which the Retirement System exercises its right by ordinance to *666set off any disability retirement pension payment to be made to Kindred exalts form over substance. The proceeds of the workers’ compensation award obtained by Kindred’s attorney clearly operate as a fund, without which the Retirement System would have nothing to set off against the pension benefits it owes to Kindred. Additionally, Kindred, not the Retirement System, paid for the service. It would be fundamentally unfair to make Kindred, rather than the Retirement System, pay for the attorney’s services when those services conferred a benefit on the Retirement System. The Retirement System should therefore be obligated to reimburse Kindred for the fees he paid to his attorney.
White, C.J., and Gerrard, J., join in this dissent.