{ "id": 3749214, "name": "JEANETTE E. RITTER et al., Plaintiffs-Appellants, v. HENRY L. HACHMEISTER, as Ex'r of the Estate of Nancy L. Hachmeister, et al., Defendants (Midwest Security Administrators, Inc., et al., Intervenors-Appellees)", "name_abbreviation": "Ritter v. Hachmeister", "decision_date": "2005-04-13", "docket_number": "No. 2-04-0924", "first_page": "926", "last_page": "931", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 926" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "236 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5781982 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "709" }, { "page": "707-08", "parenthetical": "insurer-subrogee liable under the common fund doctrine where it was only after the insured filed suit that the insurer-subrogee gave notice that the insured's attorney's services were not desired" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0705-01" ] }, { "cite": "293 Ill. App. 3d 452", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847547 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "457" }, { "page": "457", "parenthetical": "insurer-subrogee held liable under the common fund doctrine where it did not take any action on its subrogation claim for more than a year and a half after it was aware of the claim and after the insured had filed its lawsuit" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0452-01" ] }, { "cite": "311 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415319 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1039" }, { "page": "1039" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/1034-01" ] }, { "cite": "267 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333143 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "401" }, { "page": "400", "parenthetical": "insurer-subrogee's notice that it intended to represent its own subrogation interests came too late when it was given over a year after its insured had filed a lawsuit against the liable party" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0396-01" ] }, { "cite": "234 Ill. App. 3d 957", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5189082 ], "year": 1992, "pin_cites": [ { "page": "960" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0957-01" ] }, { "cite": "128 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524451 ], "year": 1984, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0121-01" ] }, { "cite": "149 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599619 ], "year": 1992, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0314-01" ] }, { "cite": "342 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472432 ], "year": 2003, "pin_cites": [ { "page": "770-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0764-01" ] } ], "analysis": { "cardinality": 596, "char_count": 12403, "ocr_confidence": 0.747, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33957809895480395 }, "sha256": "267191b3494be4864bcb8863732d0ad57de82a0c81d7582dc77fb70da7d56978", "simhash": "1:3a4f8b91cd0fd2af", "word_count": 1978 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEANETTE E. RITTER et al., Plaintiffs-Appellants, v. HENRY L. HACHMEISTER, as Ex\u2019r of the Estate of Nancy L. Hachmeister, et al., Defendants (Midwest Security Administrators, Inc., et al., Intervenors-Appellees)." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nPlaintiffs, Jeanette E. Ritter and Robert D. Ritter, filed a lawsuit in the circuit court of Winnebago County against defendants, Henry L. Hachmeister, as executor of the estate of Nancy L. Hachmeister, and Hack\u2019s Auction and Realty Service, Inc., seeking recovery in connection with a motor vehicle accident that occurred on September 3, 2003. Jeanette sought recovery for personal injuries suffered in the accident, and Robert sought recovery for loss of consortium. The parties settled the lawsuit. Plaintiffs subsequently filed a petition to adjudicate the liens of Jeanette\u2019s health insurance plan, the Group Insurance Plan of Eclipse, Inc., and the plan\u2019s third-party administrator, Midwest Security Administrators, Inc. (collectively, the Plan), for benefits paid in connection with the accident. Plaintiffs sought entry of an order that, under the so-called \u201ccommon fund doctrine,\u201d the Plan was responsible for a portion of plaintiffs\u2019 attorney fees, and its share of the settlement proceeds should be reduced accordingly. However, the trial court ordered the Plan to be reimbursed for the full amount of benefits it paid, with no reduction for attorney fees. Plaintiffs appeal from that order. We affirm.\nThe record on appeal establishes the following facts. Three weeks after the accident, the Plan sent a letter to plaintiffs\u2019 attorney, advising him that the Plan\u2019s group health contract \u201cincludes the right of subrogation/reimbursement\u201d and that, upon settlement of the claim against defendants, plaintiff should \u201cissue a separate draft made out to [the Plan].\u201d The letter also stated:\n\u201cThis letter is to inform you that [the Plan] does not agree to be represented by your office at this time and objects to the payment of any attorney fees based on the Common Fund Doctrine. The insured has a contractual duty to work with [the Plan] to secure a settlement and can do nothing to prejudice our rights to recover. However, [the Plan] would like to cooperate with your office to secure a settlement, which is acceptable to all concerned.\u201d\nOn the same date, the Plan also sent a letter to defendants\u2019 insurer, asserting its right to be reimbursed from the proceeds of any settlement for benefits paid in connection with Jeanette\u2019s injuries. The letter also advised defendants\u2019 insurer that plaintiffs and their attorney had no authority to settle the Plan\u2019s claims and that the Plan \u201c[would] not pay fees or costs associated with any claim or lawsuit without express written authorization.\u201d\nPlaintiffs filed their lawsuit on November 7, 2003. On February 5, 2004, the Plan moved to intervene in the lawsuit and to file a complaint as Jeanette\u2019s subrogee. At that time, the .Plan sent a letter to plaintiffs\u2019 and defendants\u2019 attorneys, advising them that it had retained counsel to represent its subrogation interests. The letter also advised plaintiffs\u2019 and defendants\u2019 attorneys that their settlement discussions should not address medical payments advanced by the Plan. Plaintiffs objected to the motion to intervene, arguing, inter alia, that introducing issues pertaining to insurance benefits and coordinating the participation of an additional party would prejudice plaintiffs\u2019 interests. The trial court granted the Plan\u2019s motion to intervene, but the court\u2019s order provided that the Plan could not participate in trial, could not participate in depositions without leave of court, and could not raise new issues or add new parties to the suit. The Plan moved for reconsideration of the limitations on its intervention. Alternatively, the Plan moved to voluntarily dismiss its complaint so that it could refile the complaint as a separate action. The trial court denied the motion to reconsider and granted the motion for voluntary dismissal.\nIn its capacity as Jeanette\u2019s subrogee, the Plan subsequently filed a separate lawsuit against defendants to recover the benefits it had paid. During the pendency of the Plan\u2019s suit, plaintiffs and defendants reached a settlement, and plaintiffs filed their petition to adjudicate liens. As noted, plaintiffs contended that in disbursing the settlement proceeds, the Plan\u2019s subrogation claim should be reduced by an amount representing its fair share of plaintiffs\u2019 attorney fees incurred in achieving the settlement. The Plan objected that, because it had never agreed to permit plaintiffs\u2019 attorney to represent its interests, it could not be compelled to contribute to plaintiffs\u2019 attorney fees. The Plan argued that it had attempted to participate in the litigation to represent its own interests as subrogee. During the pendency of the petition to adjudicate liens, the trial court dismissed defendants pursuant to the settlement. As noted, the trial court awarded the Plan full reimbursement of the benefits it had paid, with no reduction for plaintiffs\u2019 attorney fees. Plaintiffs filed a timely notice of appeal.\nPlaintiffs argue that, under the common fund doctrine, the Plan should have been required to pay them attorney fees for their attorney\u2019s efforts in securing the settlement. The common fund doctrine\u2019s underlying theory and the principles governing its application have been cogently described as follows:\n\u201cThe common fund doctrine allows an attorney \u2018who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees.\u2019 [Citation.] The doctrine \u2018rests upon the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched.\u2019 [Citation.] The basis for the court\u2019s authority to award fees under this doctrine is the power to do equity in a particular situation. [Citation.] \u2018To sustain a claim under the common fund doctrine, the attorney must show that (1) the fund was created as the result of legal services performed by the attorney, (2) the subrogee or claimant did not participate in the creation of the fund, and (3) the subrogee or claimant benefited or will benefit from the fund that was created.\u2019 [Citation.] Whether the common fund doctrine applies to any particular case is a question of law which we review de novo.\u201d Linker v. Allstate Insurance Co., 342 Ill. App. 3d 764, 770-71 (2003).\nThe present case involves the applicability of the doctrine in the familiar scenario where an insurer has paid its own insured compensation for injuries for which another party is liable. Insurance policies typically include provisions under which the insurer is subrogated to the insured\u2019s rights against the liable party. Subrogation \u201c[i]s a method whereby one who has involuntarily paid a debt or claim of another succeeds to the rights of the other with respect to the claim or debt so paid.\u201d Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 319 (1992). When the injured party retains an attorney who recovers a judgment against the hable party, the question arises whether an insurer claiming some right to part of the judgment must pay a share of the injured party\u2019s attorney fees. In Tenney v. American Family Mutual Insurance Co., 128 Ill. App. 3d 121, 124 (1984), it was held that a plaintiff may not recover attorney fees under the common fund doctrine for legal services that were knowingly provided to an unwilling recipient. Consequently, in Perez v. Kujawa, 234 Ill. App. 3d 957, 960 (1992), the insured was denied attorney fees under the common fund doctrine where the insurer \u201cpromptly and unequivocally\u201d informed the insured\u2019s attorney that it did not desire the attorney\u2019s services in connection with its subrogation rights.\nMore recent cases establish, however, that a mere token protest against application of the doctrine is insufficient. Generally speaking, \u201c[w]hat is necessary is for the subrogee to show some participation in the creation of the fund reflecting more than a desire to protect its subrogation rights.\u201d McGee v. Oldham, 267 Ill. App. 3d 396, 401 (1994); see also Taylor v. American Family Insurance Group, 311 Ill. App. 3d 1034, 1039 (2000); Country Mutual Insurance Co. v. Birner, 293 Ill. App. 3d 452, 457 (1997). In order to protect its rights, an insurer-subrogee may \u201cjoint ] as a plaintiff or filet 1 an interpleader counterclaim and participatet ] in the settlement negotiations.\u201d Meyers v. Hablutzel, 236 Ill. App. 3d 705, 709 (1992).\nIn addition, the common fund doctrine will apply if the insurer\u2019s notification that it intends to pursue its own subrogation rights is not prompt. See Birner, 293 Ill. App. 3d at 457 (insurer-subrogee held liable under the common fund doctrine where it did not take any action on its subrogation claim for more than a year and a half after it was aware of the claim and after the insured had filed its lawsuit); McGee, 267 Ill. App. 3d at 400 (insurer-subrogee\u2019s notice that it intended to represent its own subrogation interests came too late when it was given over a year after its insured had filed a lawsuit against the liable party); Meyers, 236 Ill. App. 3d at 707-08 (insurer-subrogee liable under the common fund doctrine where it was only after the insured filed suit that the insurer-subrogee gave notice that the insured\u2019s attorney\u2019s services were not desired). The doctrine will also apply if notification is equivocal in that the insurer requests payment from the plaintiff upon settlement of its claim against the defendant. See Taylor, 311 Ill. App. 3d at 1039; Birner, 293 Ill. App. 3d at 457.\nIn the case at bar, the Plan gave prompt notice that it did not desire plaintiffs\u2019 counsel\u2019s services and that it intended to act on its own behalf in pursuit of its subrogation rights. The initial letter to plaintiffs\u2019 attorney, which was sent three weeks after the accident, was somewhat equivocal; it requested plaintiffs to issue a draft upon settlement, suggesting that the Plan expected to reap the benefits of plaintiffs\u2019 attorney\u2019s work on the case. However, the Plan clarified its position when it sought to intervene in the lawsuit. At that time, the Plan notified plaintiffs\u2019 and defendants\u2019 attorneys that any settlement discussions should exclude medical benefits advanced by the Plan. The major point of contention in this appeal is whether the Plan\u2019s participation in the creation of the settlement fund was sufficient to permit it to avoid paying fees to plaintiffs\u2019 attorney under the common fund doctrine. Plaintiffs insist that the settlement was solely the result of their attorney\u2019s efforts and that, because the Plan benefitted from those efforts, it should share in the payment of plaintiffs\u2019 attorney fees.\nThe requirement of participation recited in Taylor, Birner, and McGee ensures that the subrogee acts in good faith to represent its own interests. Here, the record is clear that the Plan made a bona fide effort to participate in the litigation. However, plaintiffs vigorously opposed that effort, and were largely successful in that opposition, securing an order that foreclosed any meaningful participation by the Plan in the litigation. These circumstances distinguish this case from Taylor, Birner, and McGee. Plaintiffs\u2019 opposition to the Plan\u2019s intervention led the Plan to withdraw from the action and to pursue its subrogation rights independently in a separate lawsuit. This case is not one where the subrogee\u2019s professed desire to act on its own behalf was a mere pretense. Under these circumstances, the Plan\u2019s attempt to participate in the litigation satisfies the requirements of Taylor, Birner, and McGee. The Plan has shown itself to be a genuinely \u201cunwilling recipient\u201d of the services of plaintiffs\u2019 attorney. Thus the trial court did not err in concluding that the Plan should not have to pay for those services.\nFor the foregoing reasons, the judgment of the circuit court of Winnebago County is affirmed.\nAffirmed.\nBOWMAN and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "William T. Cacciatore and Eileen J. McCabe, both of Cacciatore Law Offices, of Rockford, for appellants.", "Eugene G. Doherty, Alexander J. Mezny, and Suzanne R. Lukas, all of Holmstrom & Kennedy, EC., of Rockford, for appellees." ], "corrections": "", "head_matter": "JEANETTE E. RITTER et al., Plaintiffs-Appellants, v. HENRY L. HACHMEISTER, as Ex\u2019r of the Estate of Nancy L. Hachmeister, et al., Defendants (Midwest Security Administrators, Inc., et al., Intervenors-Appellees).\nSecond District\nNo. 2\u201404\u20140924\nOpinion filed April 13, 2005.\nWilliam T. Cacciatore and Eileen J. McCabe, both of Cacciatore Law Offices, of Rockford, for appellants.\nEugene G. Doherty, Alexander J. Mezny, and Suzanne R. Lukas, all of Holmstrom & Kennedy, EC., of Rockford, for appellees." }, "file_name": "0926-01", "first_page_order": 944, "last_page_order": 949 }