fund doctrine in Nebraska

2004App. 301 , 593 N.W.2d 18 (1999). *729 An explanation of the common fund doctrine is found in Summerville v. North Platte Valley Weather Control Dist., 171 Neb. 695, 696-97 , 107 N.W.2d 425, 427 (1961), wherein we stated: [WJhere one has gone into a court of equity and, taking the risk of litigation on himself, has created or preserved or protected a fund in which others are entitled to share, such others will be required to contribute their share to the reasonable costs and expenses of the litigation, including reasonable fees to the litigant’s counsel.

2001App. 301 , 593 N.W.2d 18 (1999), ruled that the common fund doctrine did apply to the facts of this case and that what is a reasonable fee to be paid from the common fund under the totality of the circumstances is a question not answered by simply applying the fee agreement between Slattery and Wolski.

1999App. 148 , 491 N.W.2d 356 (1992), the objectors argue that the common fund doctrine is grounded in the notion of cost sharing and cannot be used to augment attorney fees.

1997App. at 154 , 491 N.W.2d at 359 , this court held that “ ‘ “when the insurance company has benefited from the work done by the insured’s attorney there is no inequity in requiring it to bear its fair share of the collection expense.” ’ ” Clearly, the common fund doctrine looks to who benefits and who did the work.

2006Co., 184 Neb. 588 , 169 N.W.2d 601 (1969), and United Services Automobile Assn. v. Hills, 172 Neb. 128 , 109 N.W.2d 174 (1961), the Nebraska Court of Appeals summarized the common fund doctrine as being applicable when an attorney (1) expends time and effort in (2) creating a common fund in which others are interested, and (3) *542 the party with the subrogation interest has substantially benefited from the attorney’s efforts in creating the fund.

2006Co., 184 Neb. 588 , 169 N.W.2d 601 (1969), and United Services Automobile Assn. v. Hills, 172 Neb. 128 , 109 N.W.2d 174 (1961), the Nebraska Court of Appeals summarized the common fund doctrine as being applicable when an attorney (1) expends time and effort in (2) creating a common fund in which others are interested, and (3) *542 the party with the subrogation interest has substantially benefited from the attorney’s efforts in creating the fund.

1997In Dennis v. State, 234 Neb. 427, 445 , 451 N.W.2d 676, 687 (1990), rev'd on other grounds, Dennis v. Higgins, 498 U.S. 439 , 111 S.Ct. 865 , 112 L.Ed.2d 969 (1991), we held that the common fund doctrine "presupposes the existence of a fund." In Dennis, we cited with approval authority from other jurisdictions holding that "`[a] common fund must be an immediate fund from which attorney's fees may be awarded at trial ...,'" 234 Neb. at 446 , 451 N.W.2d at 687 (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), and that in the absence of a fund within the control o

1997In Dennis v. State, 234 Neb. 427, 445 , 451 N.W.2d 676, 687 (1990), rev'd on other grounds, Dennis v. Higgins, 498 U.S. 439 , 111 S.Ct. 865 , 112 L.Ed.2d 969 (1991), we held that the common fund doctrine "presupposes the existence of a fund." In Dennis, we cited with approval authority from other jurisdictions holding that "`[a] common fund must be an immediate fund from which attorney's fees may be awarded at trial ...,'" 234 Neb. at 446 , 451 N.W.2d at 687 (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), and that in the absence of a fund within the control o

2004Our prior rulings make it clear that the common fund doctrine “presupposes the existence of a fund.” Dennis v. State, 234 Neb. 427, 445 , 451 N.W.2d 676, 687 (1990) (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), reversed on other grounds sub nom.

2004Our prior rulings make it clear that the common fund doctrine “presupposes the existence of a fund.” Dennis v. State, 234 Neb. 427, 445 , 451 N.W.2d 676, 687 (1990) (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), reversed on other grounds sub nom.

1992The court defined that doctrine as follows: “[OJne who expends attorneys’ fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs.” Id. at 167 , 539 P.2d at 764 , 124 Cal. Rptr. at 4 .

1992The court defined that doctrine as follows: “[OJne who expends attorneys’ fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs.” Id. at 167 , 539 P.2d at 764 , 124 Cal. Rptr. at 4 .

1992The Court of Appeals of Arkansas, in Holiday Inn-West v. Coleman, 31 Ark.

1992The Court of Appeals of Arkansas, in Holiday Inn-West v. Coleman, 31 Ark.

1992The strength of the common fund doctrine in Nebraska is further evidenced by the Supreme Court’s decisions in Gillotte v. Omaha Public Power Dist., 189 Neb. 444 , 203 N.W.2d 163 (1973), and Nekuda v. Waspi Trucking, Inc., 222 Neb. 806 , 388 N.W.2d 438 (1986).

1992The strength of the common fund doctrine in Nebraska is further evidenced by the Supreme Court’s decisions in Gillotte v. Omaha Public Power Dist., 189 Neb. 444 , 203 N.W.2d 163 (1973), and Nekuda v. Waspi Trucking, Inc., 222 Neb. 806 , 388 N.W.2d 438 (1986).

1992The strength of the common fund doctrine in Nebraska is further evidenced by the Supreme Court’s decisions in Gillotte v. Omaha Public Power Dist., 189 Neb. 444 , 203 N.W.2d 163 (1973), and Nekuda v. Waspi Trucking, Inc., 222 Neb. 806 , 388 N.W.2d 438 (1986).

1992The strength of the common fund doctrine in Nebraska is further evidenced by the Supreme Court’s decisions in Gillotte v. Omaha Public Power Dist., 189 Neb. 444 , 203 N.W.2d 163 (1973), and Nekuda v. Waspi Trucking, Inc., 222 Neb. 806 , 388 N.W.2d 438 (1986).

2021Cite as 310 Neb. 147 issue was the law firm’s entitlement to recover a reasonable attorney fee for its efforts in securing the insurer’s subrogated medical payment and stated: “This is not a ‘field’ addressed by the statute, which states that an insurer is entitled to full recovery of its medical payments when policy limits have not been received (as opposed to a pro rata share when they have and not all economic losses have been recovered).” 3 The court recognized that the statute was silent as to attorney fees and stated that there was nothing in case law to indicate that the statute preempt

2021First, if a statute is in deroga- tion of common law, it is to be strictly construed. 19 Second, the construction of a statute which restricts or removes a common- law right should not be adopted unless the plain words of the statute compel it. 20 Third, in construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 21 13 Malone v. City of Omaha, 294 Neb. 516 , 883 N.W.2d 320 (2016). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 ML Manager v. Jensen

2021First, if a statute is in deroga- tion of common law, it is to be strictly construed. 19 Second, the construction of a statute which restricts or removes a common- law right should not be adopted unless the plain words of the statute compel it. 20 Third, in construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 21 13 Malone v. City of Omaha, 294 Neb. 516 , 883 N.W.2d 320 (2016). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 ML Manager v. Jensen

2021First, if a statute is in deroga- tion of common law, it is to be strictly construed. 19 Second, the construction of a statute which restricts or removes a common- law right should not be adopted unless the plain words of the statute compel it. 20 Third, in construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 21 13 Malone v. City of Omaha, 294 Neb. 516 , 883 N.W.2d 320 (2016). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 ML Manager v. Jensen

2021First, if a statute is in deroga- tion of common law, it is to be strictly construed. 19 Second, the construction of a statute which restricts or removes a common- law right should not be adopted unless the plain words of the statute compel it. 20 Third, in construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 21 13 Malone v. City of Omaha, 294 Neb. 516 , 883 N.W.2d 320 (2016). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 ML Manager v. Jensen

2000We confronted similar questions regarding § 52-401 in Bergan Mercy Health Sys. v. Haven, ante p. 846, 620 N.W.2d 339 (2000), although we specifically reserved judgment on the question of the exception to the common fund doctrine, see id. (party did not argue issue of common fund doctrine, and court did not consider it).

2000We confronted similar questions regarding § 52-401 in Bergan Mercy Health Sys. v. Haven, ante p. 846, 620 N.W.2d 339 (2000), although we specifically reserved judgment on the question of the exception to the common fund doctrine, see id. (party did not argue issue of common fund doctrine, and court did not consider it).

1999“The [common fund] doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 , 100 S. Ct. 745 , 62 L.

1999“The [common fund] doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 , 100 S. Ct. 745 , 62 L.

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997Ed. 2d 969 (1991), we held that the common fund doctrine “presupposes the existence of a fund.” In Dennis , we cited with approval authority from other jurisdictions holding that “ ‘[a] common fund must be an immediate fund from which attorney’s fees may be awarded at trial...,’” 234 Neb. at 446 , 451 N.W.2d at 687 (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), and that in the absence of a fund within the control of the court, an attorney was not entitled to recover fees under the common fund doctrine merely because his actions conferred a benefit on members

1997Ed. 2d 969 (1991), we held that the common fund doctrine “presupposes the existence of a fund.” In Dennis , we cited with approval authority from other jurisdictions holding that “ ‘[a] common fund must be an immediate fund from which attorney’s fees may be awarded at trial...,’” 234 Neb. at 446 , 451 N.W.2d at 687 (quoting United Nursing Homes v. McNutt, 35 Wash. App. 632 , 669 P.2d 476 (1983)), and that in the absence of a fund within the control of the court, an attorney was not entitled to recover fees under the common fund doctrine merely because his actions conferred a benefit on members

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Commw. 482 , 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D. 1983), cert. denied 464 U.S. 915 , 104 S. Ct. 278 , 78 L.

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Commw. 482 , 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D. 1983), cert. denied 464 U.S. 915 , 104 S. Ct. 278 , 78 L.

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Commw. 482 , 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D. 1983), cert. denied 464 U.S. 915 , 104 S. Ct. 278 , 78 L.

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Commw. 482 , 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D. 1983), cert. denied 464 U.S. 915 , 104 S. Ct. 278 , 78 L.

1997See, also, Fitzgerald v. City of Philadelphia, 87 Pa. Comwlth. 482, 487 A.2d 485 (1985); Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D.1983), cert. denied 464 U.S. 915 , 104 S.Ct. 278 , 78 L.Ed.2d 257 ; Von Holt v. Izumo Taisha Mission, 44 Haw. 147 , 355 P.2d 40 (1960), aff'd on rehearing 44 Haw. 365 , 355 P.2d 40 .

1997The Court of Appeals reversed, holding that the common fund doctrine permitted an injured worker “to shift an appropriate share of the cost of the litigation to a health care insurer who directly and substantially benefits by the litigation through reimbursement.” (Emphasis supplied.) 1 Neb.

1997The Court of Appeals reversed, holding that the common fund doctrine permitted an injured worker "to shift an appropriate share of the cost of the litigation to a health care insurer who directly and substantially benefits by the litigation through reimbursement." (Emphasis supplied.) 1 Neb.App. at 162 , 491 N.W.2d at 363 .