Castellari v. Partners Health Plan of Colorado, Inc.
| Decision Date | 29 July 1993 |
| Docket Number | No. 92CA0923,92CA0923 |
| Citation | 860 P.2d 593 |
| Parties | Stephen P. CASTELLARI, Plaintiff-Appellant, v. PARTNERS HEALTH PLAN OF COLORADO, INC., Intervenor-Appellee. . II |
| Court | Colorado Court of Appeals |
Breit, Best, Richman & Bosch, P.C., Warren B. Bosch, Kristen L. Mix, Bradley A. Levin, Denver, for plaintiff-appellant.
Popham, Haik, Schnobrich & Kaufman, Richard G. Sander, Deborah L. Bayles, Denver, for intervenor-appellee.
Opinion by Judge REED.
Plaintiff, Stephen P. Castellari, appeals from the trial court's denial of his motion for an equitable assessment of attorney fees against his health insurance carrier, Partners Health Plan of Colorado, Inc. (Partners). We reverse and remand with directions.
In December 1989, plaintiff was injured when his motorcycle was struck by a car. During the ensuing two years, Partners paid approximately $26,000 in medical expenses incurred by plaintiff.
In May 1991, plaintiff brought this action against the driver of the car to recover damages for the personal injuries sustained as a result of the accident. Shortly before trial, Partners requested and received permission to intervene in the case for the limited purpose of establishing a lien for the amount of the benefits it had paid against any recovery obtained by plaintiff. The case then proceeded to trial, following which the jury returned a verdict awarding plaintiff $121,265.
Plaintiff then filed a motion to require Partners to pay a proportionate share of his attorney fees. Plaintiff's request was based on County Workers Compensation Pool v. Davis, 817 P.2d 521 (Colo.1991), wherein our supreme court held that, under the equitable "common fund" doctrine, a workers' compensation insurer may be held liable for a portion of the attorney fees and costs incurred by an injured worker in tort litigation which results in reimbursement of the insurer's subrogation interest.
Partners opposed plaintiff's motion, arguing that the holding in County Workers was inapplicable because it was based on "a statutory scheme and public policy unique to worker's compensation law." In addition, Partners claimed it had not been unjustly enriched because plaintiff had been informed prior to the commencement of the action that Partners intended to pursue independently its subrogation claim. The trial court denied plaintiff's motion without comment, and this appeal followed.
Again relying upon County Workers, supra, plaintiff contends the trial court erred in ruling that he was not entitled to recover a portion of his attorney fees from Partners. We agree.
At the outset, we reject Partners' assertion that the decision in County Workers has no application here. As noted above, the supreme court's holding in County Workers was clearly based on the "common fund" doctrine. That doctrine, which the supreme court characterized as a "basic rule of equity," County Workers, supra, 817 P.2d at 526, rests upon the principle that "those who share in the benefits of litigation should also share its costs." Agee v. Trustees of Pension Board, 33 Colo.App. 268, 273, 518 P.2d 301, 304 (1974). Accordingly, when a party has incurred litigation expenses in creating or preserving a fund from which others derive benefit, the doctrine...
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