fund doctrine in Arizona

2009I believe the common fund doctrine should apply and Claimant should be awarded her attorneys' fees. ¶ 26 "The common fund doctrine is a general rule of equity that `a person or persons who employ attorneys for the preservation of a common fund may be entitled to have their attorney's fees paid out of that fund.'" LaBombard v. Samaritan Health System, 195 Ariz. 543, 548 , 991 P.2d 246, 251 (quoting In re Estate of Brown, 137 Ariz. 309, 312 , 670 P.2d 414, 417 (App.1983)).

2009I believe the common fund doctrine should apply and Claimant should be awarded her attorneys' fees. ¶ 26 "The common fund doctrine is a general rule of equity that `a person or persons who employ attorneys for the preservation of a common fund may be entitled to have their attorney's fees paid out of that fund.'" LaBombard v. Samaritan Health System, 195 Ariz. 543, 548 , 991 P.2d 246, 251 (quoting In re Estate of Brown, 137 Ariz. 309, 312 , 670 P.2d 414, 417 (App.1983)).

2014“Under the common fund doctrine a court may award attorneys’ fees to counsel for the prevailing side whose efforts in litigation create or preserve a common fund from which others who have undertaken no risk or cost will nevertheless benefit.” Kerr v. Killian, 197 Ariz. 213 , 217-18 ¶ 19, 3 P.3d 1133,1137-38 (App.2000).

2014“Under the common fund doctrine a court may award attorneys’ fees to counsel for the prevailing side whose efforts in litigation create or preserve a common fund from which others who have undertaken no risk or cost will nevertheless benefit.” Kerr v. Killian, 197 Ariz. 213 , 217-18 ¶ 19, 3 P.3d 1133,1137-38 (App.2000).

2012We find that the trial court properly declined to apply the common fund doctrine to reduce the State’s award. ¶ 7 The common fund doctrine provides that a person who employs “attorneys for the preservation of a common fund may be entitled to have them attorney’s fees paid out of that fund.” LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548, ¶ 22 , 991 P.2d 246, 251 (App.1998).

2012We find that the trial court properly declined to apply the common fund doctrine to reduce the State’s award. ¶ 7 The common fund doctrine provides that a person who employs “attorneys for the preservation of a common fund may be entitled to have them attorney’s fees paid out of that fund.” LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548, ¶ 22 , 991 P.2d 246, 251 (App.1998).

2006Id. ¶23 To sum up, Arizona wrongful death law presents problems for the application of the common fund doctrine when more than one counsel meaningfully participate in establishing an award: (1) the “fund” (when viewed as the total damages awarded to the statutory plaintiff and beneficiaries) is based on a composite of damages of differing beneficiaries as contrasted with a “mathematically ascertainable claim to part of a lump-sum judgment,” Boeing, 444 U.S. at 479 , 100 S.Ct. 745 ; (2) those damages are separate and distinct and statutory beneficiaries may use separate counsel to establish the

2006Id. ¶23 To sum up, Arizona wrongful death law presents problems for the application of the common fund doctrine when more than one counsel meaningfully participate in establishing an award: (1) the “fund” (when viewed as the total damages awarded to the statutory plaintiff and beneficiaries) is based on a composite of damages of differing beneficiaries as contrasted with a “mathematically ascertainable claim to part of a lump-sum judgment,” Boeing, 444 U.S. at 479 , 100 S.Ct. 745 ; (2) those damages are separate and distinct and statutory beneficiaries may use separate counsel to establish the

2006See Burke, 206 Ariz. at 273, ¶ 9 , 77 P.3d at 448 (“The common fund doctrine is based on an equitable principle of allocating attorney fees among the benefitted group, not shifting them to the opposing party.”); see also Steer v. Eggleston, 202 Ariz. 523 , 47 P.3d 1161 (App.2002); Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997); Mountain W.

2006See Burke, 206 Ariz. at 273, ¶ 9 , 77 P.3d at 448 (“The common fund doctrine is based on an equitable principle of allocating attorney fees among the benefitted group, not shifting them to the opposing party.”); see also Steer v. Eggleston, 202 Ariz. 523 , 47 P.3d 1161 (App.2002); Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997); Mountain W.

2006See Burke, 206 Ariz. at 273, ¶ 9 , 77 P.3d at 448 (“The common fund doctrine is based on an equitable principle of allocating attorney fees among the benefitted group, not shifting them to the opposing party.”); see also Steer v. Eggleston, 202 Ariz. 523 , 47 P.3d 1161 (App.2002); Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997); Mountain W.

2006See Burke, 206 Ariz. at 273, ¶ 9 , 77 P.3d at 448 (“The common fund doctrine is based on an equitable principle of allocating attorney fees among the benefitted group, not shifting them to the opposing party.”); see also Steer v. Eggleston, 202 Ariz. 523 , 47 P.3d 1161 (App.2002); Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997); Mountain W.

2020See id. ¶15 Under the common fund doctrine, this court considers whether: (1) the classes of persons benefitting from the lawsuit were small and easily identifiable; (2) the benefits could be traced accurately; and (3) the costs could be shifted to those benefitting with some precision.

2020Because of the second and third elements, “Arizona wrongful death law presents problems for the application of the common fund doctrine when more than one counsel meaningfully participate in establishing an award.” See Valder Law, 212 Ariz. at 251, ¶ 23 . ¶16 Lattimer Law satisfies the first element because the statutory beneficiaries and the estate are a small and easily identifiable class.

2014Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366 , 370 ¶¶ 18-19, 295 P.3d 943, 947 (2013). ¶ 40 Fields sought to compel EORP to calculate benefit increases according to § 38-818’s formula rather than that of S.B. 1609.

2014Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366 , 370 ¶¶ 18-19, 295 P.3d 943, 947 (2013). ¶ 40 Fields sought to compel EORP to calculate benefit increases according to § 38-818’s formula rather than that of S.B. 1609.

2009But see London v. Green Acres Trust, 159 Ariz. 136, 147 , 765 P.2d 538, 549 (App.1988) (“Lajwarding attorney’s fees as punishment for bad faith has been codified in A.R.S. § 12-341.01(0),” but “theory underlying the statute has always been available to the courts”). 4 ¶ 13 In Alyeska Pipeline, the Supreme Court “affirmed the continuing vitality of the ‘American Rule’ that requires each party to bear the cost of its own attorneys’ fees absent express statutory authority,” but noted the following exceptions in federal courts: “(1) the common fund doctrine applies; (2) a party willfully disobeys

2009But see London v. Green Acres Trust, 159 Ariz. 136, 147 , 765 P.2d 538, 549 (App.1988) (“Lajwarding attorney’s fees as punishment for bad faith has been codified in A.R.S. § 12-341.01(0),” but “theory underlying the statute has always been available to the courts”). 4 ¶ 13 In Alyeska Pipeline, the Supreme Court “affirmed the continuing vitality of the ‘American Rule’ that requires each party to bear the cost of its own attorneys’ fees absent express statutory authority,” but noted the following exceptions in federal courts: “(1) the common fund doctrine applies; (2) a party willfully disobeys

2006B. ¶ 15 The common fund doctrine in Arizona has its basis in Steinfeld v. Zeckendorf, 15 Ariz. 335, 342 , 138 P. 1044, 1047 (1914), aff'd, 239 U.S. 26 , 36 S.Ct. 14 , 60 L.Ed. 125 (1915).

2006B. ¶ 15 The common fund doctrine in Arizona has its basis in Steinfeld v. Zeckendorf, 15 Ariz. 335, 342 , 138 P. 1044, 1047 (1914), aff'd, 239 U.S. 26 , 36 S.Ct. 14 , 60 L.Ed. 125 (1915).

2006Sys., 206 Ariz. 269, 272, ¶7 , 77 P.3d 444, 447 (App. 2003). ¶ 16 The common fund doctrine, however, is an exception to the general rule that attorneys’ fees may be awarded “only when expressly authorized by contract or statute.” Id.; see also Kerr, 197 Ariz. at 217-18, ¶ 19 , 3 P.3d at 1137-38 ; LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548-49, ¶22 , 991 P.2d 246, 251-52 (App.1998).

2006Sys., 206 Ariz. 269, 272, ¶7 , 77 P.3d 444, 447 (App. 2003). ¶ 16 The common fund doctrine, however, is an exception to the general rule that attorneys’ fees may be awarded “only when expressly authorized by contract or statute.” Id.; see also Kerr, 197 Ariz. at 217-18, ¶ 19 , 3 P.3d at 1137-38 ; LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548-49, ¶22 , 991 P.2d 246, 251-52 (App.1998).

2003Sys., 121 Wash.2d 52 , 847 P.2d 440, 449 (1993); see also Van Gemert (common fund doctrine differs from other theories authorizing attorney fee awards in that award is borne by prevailing parties, not losing party); Camden I Condo.

2003Sys., 121 Wash.2d 52 , 847 P.2d 440, 449 (1993); see also Van Gemert (common fund doctrine differs from other theories authorizing attorney fee awards in that award is borne by prevailing parties, not losing party); Camden I Condo.

2009But see London v. Green Acres Trust, 159 Ariz. 136, 147 , 765 P.2d 538, 549 (App.1988) (“Lajwarding attorney’s fees as punishment for bad faith has been codified in A.R.S. § 12-341.01(0),” but “theory underlying the statute has always been available to the courts”). 4 ¶ 13 In Alyeska Pipeline, the Supreme Court “affirmed the continuing vitality of the ‘American Rule’ that requires each party to bear the cost of its own attorneys’ fees absent express statutory authority,” but noted the following exceptions in federal courts: “(1) the common fund doctrine applies; (2) a party willfully disobeys

2009But see London v. Green Acres Trust, 159 Ariz. 136, 147 , 765 P.2d 538, 549 (App.1988) (“Lajwarding attorney’s fees as punishment for bad faith has been codified in A.R.S. § 12-341.01(0),” but “theory underlying the statute has always been available to the courts”). 4 ¶ 13 In Alyeska Pipeline, the Supreme Court “affirmed the continuing vitality of the ‘American Rule’ that requires each party to bear the cost of its own attorneys’ fees absent express statutory authority,” but noted the following exceptions in federal courts: “(1) the common fund doctrine applies; (2) a party willfully disobeys

2009And in Chambers v. NASCO, Inc., 501 U.S. 32, 50 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991), the Court held that although a federal court “ordinarily should rely on the Rules” if they apply to bad faith conduct at issue, “if in the informed discretion of the court, neither the [federal] statute nor the Rules are up to the task, the court may safely rely on its inherent power.” According to the Court, the inherent power to sanction is “ ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious dispositi

2009And in Chambers v. NASCO, Inc., 501 U.S. 32, 50 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991), the Court held that although a federal court “ordinarily should rely on the Rules” if they apply to bad faith conduct at issue, “if in the informed discretion of the court, neither the [federal] statute nor the Rules are up to the task, the court may safely rely on its inherent power.” According to the Court, the inherent power to sanction is “ ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious dispositi

2012Relying on Arizona Department of Administration v. Cox, 222 Ariz. 270 , 213 P.3d 707 (App.2009), the court granted the State’s motion for summary judgment for the full amount of its claim and declined to apportion Wang’s attorneys’ fees against the claim. ¶ 5 Wang timely appealed.

2012Id. at 280, ¶ 40 , 213 P.3d at 717 (emphasis added). ¶ 17 The equitable concerns underlying the common fund doctrine identified in Cox are not present in this case.

2009For that reason, the claimant argues that the equitable "common fund doctrine" should require Banner's disability benefits department to pay its proportionate share of the attorney's fees and costs incurred by the claimant in litigating the petition to reopen. ¶ 14 In Hobson v. Mid-Century Insurance Company, 199 Ariz. 525 , 19 P.3d 1241 (App. 2001), the court discussed the common fund doctrine in the context of workers' compensation benefits.

2009For that reason, the claimant argues that the equitable "common fund doctrine" should require Banner's disability benefits department to pay its proportionate share of the attorney's fees and costs incurred by the claimant in litigating the petition to reopen. ¶ 14 In Hobson v. Mid-Century Insurance Company, 199 Ariz. 525 , 19 P.3d 1241 (App. 2001), the court discussed the common fund doctrine in the context of workers' compensation benefits.

2006Fischel, 307 F.3d at 1008. ¶ 32 Accordingly, the superior court’s authority to apply a multiplier also applies to a situation where fee-shifting rather than fee-spreading applies, but the parties have agreed to use the common fund doctrine to determine the amount of fees.

2006As our supreme court stated in Barmat , “where the implied contract does no more than place the parties in a relationship in which the law then imposes certain duties recognized by public policy, the gravamen of the subsequent action for breach is tort, not contract.” Id. at 523 , 747 P.2d at 1222 (citations omitted). ¶ 33 As noted, the critical question in this case is whether the common fund doctrine applies.

2006As our supreme court stated in Barmat , “where the implied contract does no more than place the parties in a relationship in which the law then imposes certain duties recognized by public policy, the gravamen of the subsequent action for breach is tort, not contract.” Id. at 523 , 747 P.2d at 1222 (citations omitted). ¶ 33 As noted, the critical question in this case is whether the common fund doctrine applies.