{ "id": 4283441, "name": "MATTHEW J. STEVENS, Plaintiff and Counterdefendant-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant and Counterplaintiff-Appellant", "name_abbreviation": "Stevens v. Country Mutual Insurance", "decision_date": "2008-12-31", "docket_number": "No. 4-08-0216", "first_page": "796", "last_page": "805", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 796" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "733 N.E.2d 886", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140051 ], "year": 2000, "pin_cites": [ { "page": "1021" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/1018-01" ] }, { "cite": "847 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "365 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264027 ], "year": 2006, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0303-01" ] }, { "cite": "361 N.E.2d 1100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1103", "parenthetical": "where the supreme court rejected State Farm's assertion that application of the common-fund doctrine would violate the subrogation agreement between it and the insured motorist" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463533 ], "year": 1977, "pin_cites": [ { "page": "126", "parenthetical": "where the supreme court rejected State Farm's assertion that application of the common-fund doctrine would violate the subrogation agreement between it and the insured motorist" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0119-01" ] }, { "cite": "671 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "665" }, { "page": "665", "parenthetical": "where the supreme court held that a quasi-contractual obligation to pay fees under common-fund doctrine arises wholly independently of, and is unrelated to, a contractual subrogation agreement between the parties" } ], "opinion_index": 0 }, { "cite": "173 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147638 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0375-01" ] }, { "cite": "470 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "9", "parenthetical": "a plaintiff may not recover attorney fees under the common-fund doctrine while rendering services for an unwilling recipient" }, { "page": "7" } ], "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524451 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "124", "parenthetical": "a plaintiff may not recover attorney fees under the common-fund doctrine while rendering services for an unwilling recipient" }, { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0121-01" ] }, { "cite": "764 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "198 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29945 ], "year": 2002, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0495-01" ] }, { "cite": "794 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "950" }, { "page": "950" } ], "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472432 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "770" }, { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0764-01" ] }, { "cite": "827 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "356 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749214 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0926-01" ] }, { "cite": "874 N.E.2d 905", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "375 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4271807 ], "year": 2007, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0502-01" ] }, { "cite": "871 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "884" } ], "opinion_index": 0 }, { "cite": "374 Ill. App. 3d 990", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328950 ], "year": 2007, "pin_cites": [ { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0990-01" ] }, { "cite": "879 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "227 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705638 ], "year": 2007, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/227/0102-01" ] }, { "cite": "659 N.E.2d 909", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "911" } ], "opinion_index": 1 }, { "cite": "168 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307269 ], "year": 1995, "pin_cites": [ { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/168/0235-01" ] }, { "cite": "671 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "662-63" } ], "opinion_index": 1 }, { "cite": "173 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147638 ], "year": 1996, "pin_cites": [ { "page": "385" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/173/0375-01" ] } ], "analysis": { "cardinality": 884, "char_count": 22390, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14381707196056603 }, "sha256": "5eecd0c27ba589b98edbd01bc3ec8061e30b8d2b86e5edb855b4d0a7350b37f4", "simhash": "1:2b24b5b60d22bef8", "word_count": 3546 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MATTHEW J. STEVENS, Plaintiff and Counterdefendant-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant and Counterplaintiff-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendant and counterplaintiff, Country Mutual Insurance Company (Country), appeals from the trial court\u2019s March 2008 order, denying its motion for summary judgment and granting summary judgment in favor of plaintiff and counterdefendant, Matthew J. Stevens, for attorney fees under the common-fund doctrine and section 155 of the Illinois Insurance Code (Code) (215 ILCS 5/155 (West 2006)). Because we conclude that (1) Country benefitted from the creation of the common fund and (2) the court\u2019s imposition of additional attorney fees pursuant to section 155 of the Code could have been based, in part, on Country\u2019s good-faith claim, we affirm and remand with directions.\nI. BACKGROUND\nThe following facts were taken from the parties\u2019 pleadings and affidavits.\nIn August 2005, Stevens, who was insured by Country, suffered injuries caused by an automobile accident with another motorist, Heather Phares, who was insured by State Farm Mutual Automobile Insurance Company (State Farm). Later that month, Stevens\u2019 attorney, Bruce A. Beeman, sought to enforce Stevens\u2019 claim against Phares by (1) informing State Farm of his attorney\u2019s lien for fees, pursuant to section 1 of the Attorneys Lien Act (770 ILCS 5/1 (West 2006)), and (2) requesting that State Farm disclose Phares\u2019 maximum liability coverage pursuant to section 143.24b of the Code (215 ILCS 5/143.24b (West 2006)).\nTo partially defray his medical expenses, which totaled about $151,587, Stevens received $20,420.60 from Country under the terms of his medical-payments coverage policy. The policy provisions also entitled Country to later recover the $20,420.60 it paid to Stevens. Specifically, paragraph 9 of the general policy conditions section of Stevens\u2019 policy reads as follows:\n\u201c9. Our Right to Recover Payment\na. If we make payment under this policy, other than [d]eath [b]enefit, *** and the person to or for whom payment was made has a right to recover damages, we will be subrogated to that right (have that right transferred to ms). That person must do whatever is necessary to enable us to exercise our rights and must do nothing after the loss to prejudice our rights.\nb. If we make a payment under this policy other than [d]eath [bjenefit, *** and the person to or for whom payment was made recovers damages from another, that person must hold the proceeds of the recovery in trust for us and must reimburse us to the extent of our payment.\u201d (Emphasis in original.)\nIn October 2006, a Country employee, who identified herself as a \u201cSubrogation Specialist,\u201d sent a letter to State Farm, entitled \u201cNotice of Recovery Interest,\u201d stating, in pertinent part, the following:\n\u201cOur investigation *** indicates that your insured\u2019s negligence was the cause of injuries to our insured ***.\nWe have made payments for the treatment received as a result of the *** accident. This letter is to place you on notice of our recovery interests.\u201d\nCountry\u2019s letter to State Farm was later forwarded to Beeman\u2019s office.\nIn June 2007, Beeman sent a letter to a Country claims representative, confirming their earlier conversation that (1) Country did not intend to pursue an action against Phares; (2) Country authorized him to accept State Farm\u2019s $50,000 settlement offer, which represented Phares\u2019 maximum liability coverage; and (3) Stevens intended to file a claim for $50,000 under the terms of his $100,000 underinsuredmotorist coverage policy with Country. In addition, Beeman requested that Country waive its subrogation lien for medical benefits paid. In August 2007, Country responded as follows:\n\u201cI am in receipt of your demand of $50,000 for the under [ ]insured claim on our policy. Please be advised that we will not waive our subrogation lien for medical benefits paid under the policy.\nAttached is a draft in the amount of $29,579.40 in payment for the under[ jinsured claim. This figure is based on our policy limit of $100,000 less $50,000 paid by State Farm, less $20,420.60 in medical paid[,] leaving the amount payable at $29,579.40 ***.\u201d\n(Country did not enclose the draft in its response to Stevens.)\nIn October 2007, State Farm issued a $50,000 check to Stevens pursuant to the settlement agreement that Country had previously approved. The check specifically listed, in part, Stevens, Beeman, and Country as payees. Consistent with its August 2007 letter, Country did not endorse the State Farm settlement check. Later that month, Stevens filed a complaint to adjudicate Country\u2019s subrogation lien, arguing that Country was obligated to pay one-third of its subrogation lien for attorney fees.\nIn December 2007 and February 2008, Stevens and Country, respectively, filed cross-motions for summary judgment pursuant to section 2 \u2014 1005 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1005 (West 2006)). Stevens argued that under the common-fund doctrine, Country was entitled to recover only two-thirds, or $13,613.72, of its $20,420.60 subrogation lien. Thus, Stevens contended that Country owed an additional $6,806.88. Country argued that under the terms of its underinsured-motorist policy, Stevens was not entitled to more than $29,579.40. Specifically, Country contended that sections 2c, 2d, and 2e of its policy \u2014 pertaining to limits of liability for uninsured and underinsured motorists \u2014 applied as follows:\n\u201cc. Amounts payable for damages under [ujninsured[u]nderinsured [mjotorists *** will be reduced by\n(1) all sums paid by or on behalf of persons or organizations who may be legally responsible for the bodily injury. ***\n* * *\nd. *** Any payments under coverages in [s]ection 2 of this policy either to or for an insured will reduce any amount that person is entitled to receive under *** [the] [u]nderinsured[-m]otorists coverage of this policy.\ne. Amounts payable for damages under [u]nderinsured[-m] otorist coverage will be reduced by all sums paid under [m]edical [payments *** coverage of any personal vehicle policy issued by us. Any payment under coverages in Section 2 of this policy either to or for an insured will reduce any amount that person is entitled to receive under Section 1, DJiability, [mjedical [pjayments, [p]ersonal[-i]njury [p]rotection[,] or [u]ninsured[-mjotorists coverage of this policy.\u201d (Emphases in original.)\nIn March 2008, the trial court entered a written order granting Stevens\u2019 motion for summary judgment. Specifically, the court ordered Country to (1) endorse the $50,000 check from State Farm; (2) remit $29,579.40 to Stevens, which represented the balance of Stevens\u2019 underinsured-motorist coverage; and (3) remit $6,806.88 to Stevens, which represented one-third of Country\u2019s subrogation lien for medical payments under the common-fund doctrine. In addition, the court ordered Country to pay Stevens $4,084 pursuant to section 155 of the Code (215 ILCS 5/155 (West 2006)) because Country unreasonably delayed settling Stevens\u2019 claim.\nThis appeal followed.\nII. THE TRIAL COURT\u2019S GRANT OF SUMMARY JUDGMENT\nCountry argues that the trial court erred by granting Stevens\u2019 motion for summary judgment. Specifically, Country contends that (1) the common-fund doctrine does not apply because (a) it did not receive any benefit from the common fund and (b) the medical payments Country made to Stevens were recovered under the terms of its underinsured-motorist coverage and (2) the court\u2019s imposition of additional attorney fees pursuant to section 155 of the Code (215 ILCS 5/155 (West 2006)) was inappropriate because it acted in good faith. We address Country\u2019s contentions in turn.\nA. Country\u2019s Claim That the Common-Fund Doctrine Does Not Apply\n1. Summary Judgment and the Standard of Review\nSection 2 \u2014 1005(b) of the Code provides as follows:\n\u201cA defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.\u201d 735 ILCS 5/2\u2014 1005(b) (West 2006).\n\u201cSummary judgment is appropriate where the pleadings, depositions, admissions[,] and affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 227 Ill. 2d 102, 106, 879 N.E.2d 305, 308 (2007); 735 ILCS 5/2 \u2014 1005(c) (West 2006). Summary judgment should be granted only if the movant\u2019s right to judgment is clear and free from doubt. Bluestar Energy Services, Inc. v. Illinois Commerce Comm\u2019n, 374 Ill. App. 3d 990, 993, 871 N.E.2d 880, 884 (2007). We review de novo a trial court\u2019s grant of summary judgment. Reppert v. Southern Illinois University, 375 Ill. App. 3d 502, 504, 874 N.E.2d 905, 907 (2007).\n2. The Common-Fund Doctrine\nIn Ritter v. Hachmeister, 356 Ill. App. 3d 926, 827 N.E.2d 504 (2005), the Second District succinctly summarized the underlying rationale governing the application of the common-fund doctrine as follows:\n\u201c \u2018The common[-]fund doctrine allows an attorney \u201cwho 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.\u201d [Citation.] The doctrine \u201crests upon the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched.\u201d [Citation.] The basis for the court\u2019s authority to award fees under this doctrine is the power to do equity in a particular situation.\u2019 \u201d Ritter, 356 Ill. App. 3d at 929, 827 N.E.2d at 506, quoting Linker v. Allstate Insurance Co., 342 Ill. App. 3d 764, 770, 794 N.E.2d 945, 950 (2003).\n3. Country\u2019s Claim That It Did Not Receive Any Benefit From the Common Fund\nCountry contends that the common-fund doctrine does not apply because it did not receive any benefit from the common fund. We disagree.\n\u201c \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 \u201d Linker, 342 Ill. App. 3d at 770, 794 N.E.2d at 950, quoting Bishop v. Burgard, 198 Ill. 2d 495, 508, 764 N.E.2d 24, 33 (2002).\nIn this case, the pleadings and affidavits show the following undisputed facts: (1) Stevens sustained injuries resulting from an automobile collision with Phares, (2) Country paid $20,420.60 to Stevens under the terms of its medical-payments coverage policy, (3) thereafter, Beeman pursued Phares\u2019 insurance company, State Farm, for damages on Stevens\u2019 behalf, (4) Beeman created a $50,000 common fund as the result of his legal services, and (5) Country did not participate in the creation of the common fund.\nContrary to Country\u2019s assertion, our review of the pleadings and affidavits reveals that Country did benefit from the creation of the common fund. Specifically, but for Beeman\u2019s actions, Country would have expended substantial administrative and legal resources to recover the $20,420.60 it paid to Stevens under section 9a of its subrogation agreement. In addition, under the terms of section 9b, which are applicable to the facts of this case, Stevens was obligated to hold the proceeds of the common fund Beeman created on Stevens\u2019 behalf in trust for Country and reimburse it to the extent of its medical payments to Stevens. Indeed, Country specifically notified State Farm and Beeman of its subrogation lien for medical payments in its \u201cNotice of Recovery Interest.\u201d Further, Country was able to limit its liability by deducting the $50,000 common fund created by Beeman from Stevens\u2019 subsequent underinsured-motorist claim.\nMoreover, at no time did Country expressly state to Beeman that it (1) did not want him to take action to recover its subrogation lien and (2) would not pay him if he did. See Tenney v. American Family Mutual Insurance Co., 128 Ill. App. 3d 121, 124, 470 N.E.2d 6, 9 (1984) (a plaintiff may not recover attorney fees under the common-fund doctrine while rendering services for an unwilling recipient). To the contrary, the record shows that Country (1) approved Beeman\u2019s acceptance of State Farm\u2019s settlement, (2) would not waive its subrogation lien, and (3) did not intend to pursue a claim against Phares.\nBecause Country was unjustly enriched by Beeman\u2019s actions on Stevens\u2019 behalf, we reject Country\u2019s contention that the common-fund doctrine did not apply because it did not receive any benefit from the fund.\n4. Country\u2019s Recovery of Medical Payments Under Its Underinsured-Motorist Policy\nCountry next contends that the common-fund doctrine does not apply because the medical payments provided to Stevens were reimbursed from its underinsured-motorist coverage pursuant to its insurance policy with Stevens. We decline to address the merits of Country\u2019s argument.\nThe common-fund doctrine is invoked by someone who is not a party to the contractual agreement between, for example, an insured and his insurer, to recover an unpaid debt \u2014 namely, a reasonable fee in quantum meruit for legal services rendered. Scholtens v. Schneider, 173 Ill. 2d 375, 391, 671 N.E.2d 657, 665 (1996). \u201c[A]n attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from those who seek to benefit from it.\u201d Tenney, 128 Ill. App. 3d at 122, 470 N.E.2d at 7.\nWe first note that by its very nature, an action for attorney fees under the common-fund doctrine is usually brought in a separate motion by the attorney who seeks enforcement of the equitable remedy. Here, the motion to dismiss and the underlying complaint to adjudicate Country\u2019s subrogation claim were filed by Beeman on Stevens\u2019 behalf. However, because the trial court, in its written order for summary judgment, found that Beeman was \u201casserting [his] own claim against [Country] *** for attorneys fees under the [common-]fund doctrine\u201d \u2014 a finding the parties do not contest on appeal \u2014 this issue is not properly before us.\nFurther, we need not address Country\u2019s contention because Bee-man\u2019s claim for attorney fees under the common-fund doctrine does not depend upon the insurance-policy language between Stevens and Country. See Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 126, 361 N.E.2d 1100, 1103 (1977) (where the supreme court rejected State Farm\u2019s assertion that application of the common-fund doctrine would violate the subrogation agreement between it and the insured motorist); Scholtens, 173 Ill. 2d at 391, 671 N.E.2d at 665 (where the supreme court held that a quasi-contractual obligation to pay fees under common-fund doctrine arises wholly independently of, and is unrelated to, a contractual subrogation agreement between the parties). Thus, because we have previously held that Country benefitted from the common fund created solely by Beeman, the fact that Country\u2019s policy with Stevens allowed it to recover medical payments made through its underinsured-motorist coverage does not negate its obligation to pay Beeman for his services in creating the common fund.\nB. The Trial Court\u2019s Imposition of Additional Attorney Fees\nCountry also argues that the trial court\u2019s imposition of additional attorney fees pursuant to section 155 of the Code (215 ILCS 5/155 (West 2006)) was inappropriate because it acted in good faith. On this issue, we remand with directions.\nSection 155 of the Code provides, in pertinent part, the following:\n\u201cIn any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:\n(a) 60% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs[.]\u201d 215 ILCS 5/155 (West 2006).\nIn its written order for summary judgment, the trial found as follows:\n\u201cSince the underlying [claim with State Farm] was settled by [Bee-man], [Country has] filed several motions in an attempt to avoid paying [Beeman] under the [common-]fund doctrine ***. These motions have included a [m]otion to [d]ismiss with [prejudice, a [c]ounter-claim for [declaratory [r]elief, and finally, a [mjotion for [s]ummary judgment ***. There has been unreasonable delay in settling the *** fee claim of [Beeman.] None of the motions filed by [Country] explain why a subrogation claim was asserted, if it was not intended to be a subrogation claim.\u201d\nThe court then ordered Country to pay the additional statutory sum of $4,084, which represented 60% of the disputed $6,806.88 attorney fee.\n\u201c \u2018A court should consider the totality of the circumstances when deciding whether an insurer\u2019s actions are vexatious and unreasonable. Factors to consider are the insurer\u2019s attitude, whether the insured was forced to sue to recover, and whether the insured was deprived of the use of his property. If a bona fide dispute existed regarding the scope of the insurance coverage, an insurer\u2019s delay in settling the claim may not violate section 155.\u2019 \u201d (Emphasis added.) Gaston v. Founders Insurance Co., 365 Ill. App. 3d 303, 325, 847 N.E.2d 523, 541 (2006), quoting Valdovinos v. Gallant Insurance Co., 314 Ill. App. 3d 1018, 1021, 733 N.E.2d 886, 889 (2000).\nIn this case, we conclude that Country\u2019s contention that the common-fund doctrine did not apply because its medical payments were reimbursed through its underinsured-motorist policy provision presented a bona fide dispute. However, this conclusion does not resolve the issue. We note that the trial court\u2019s imposition of additional attorney fees pursuant to section 155 of the Code was based on the \u201cseveral\u201d motions Country filed in an attempt to avoid paying Bee-man under the common-fund doctrine. Thus, we remand to the trial court for reconsideration of its imposition of additional attorney fees pursuant to section 155 of the Code under the totality of the circumstances excluding Country\u2019s motion for summary judgment. In so concluding, we explicitly decline to express any view on whether imposition of additional attorney fees would be appropriate.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s order for summary judgment and remand for reconsideration of attorney fees under section 155 of the Code (215 ILCS 5/155 (West 2006)).\nAffirmed and remanded with directions.\nTURNER, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE APPLETON,\ndissenting:\nI respectfully dissent from the majority\u2019s 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\u2019s 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\u2019s medical expenses ($20,420.60), as provided in the insurance contract.\nI would ask, where, under these circumstances, is the \u201cfund\u201d created by plaintiff\u2019s counsel\u2019s efforts? It appears to me there is none. The fees that counsel sought constitute one-third of the medical payments made under the \u201cmed pay\u201d 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 \u201cfund.\u201d 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\u2019s decision, unjustly enriched by Country\u2019s compliance with its insurance contract with plaintiff.\nCountry did not file a notice of subrogation against either the tortfeasor\u2019s 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\u2019s efforts.\nAs 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.", "type": "dissent", "author": "JUSTICE APPLETON," } ], "attorneys": [ "Karen L. Kendall and Craig L. Unrath, both of Heyl, Royster, Voelker & Allen, of Peoria, and Gary S. Schwab and Scott D. Spooner, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.", "Bruce A. Beeman, of Wolter, Beeman & Lynch, of Springfield, for appellee." ], "corrections": "", "head_matter": "MATTHEW J. STEVENS, Plaintiff and Counterdefendant-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant and Counterplaintiff-Appellant.\nFourth District\nNo. 4 \u2014 08\u20140216\nOpinion filed December 31, 2008.\nRehearing denied January 30, 2009.\nAPPLETON, J., dissenting.\nKaren L. Kendall and Craig L. Unrath, both of Heyl, Royster, Voelker & Allen, of Peoria, and Gary S. Schwab and Scott D. Spooner, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.\nBruce A. Beeman, of Wolter, Beeman & Lynch, of Springfield, for appellee." }, "file_name": "0796-01", "first_page_order": 812, "last_page_order": 821 }