fund doctrine in Indiana

2004John," we read Community Care Centers to state that "the common benefit doctrine is viewed as an extension to the common fund doctrine and was created to allow an award of attorney's fees where the prevailing party 'substantially benefited others even though the prevailing party did not establish a fund or bring the action on behalf of a class." Comm. Care Ctrs., 716 N.E.2d at 548 (emphasis added).

2000See Community Care Ctrs., 716 N.E.2d at 543 .

1999Greensburg Local No. 761 Printing Specialities v. Robbins, 549 N.E.2d 79, 80 (Ind.Ct.App.1990), reh’g denied, trans. denied.

1996Greensburg Local No. 761 Printing Specialities v. Robbins, 549 N.E.2d 79, 80 (Ind.Ct.App.1990), trans. denied.

1999Although Indiana may not have formally recognized the “common benefit” doctrine as an extension of the common fund doctrine, the court in Darlington, supra, 241 Ind. at 542 , 162 N.E.2d at 621 , clearly rejected the notion that a sum of money had to be created before attorney’s fees could be awarded.

1999Although Indiana may not have formally recognized the “common benefit” doctrine as an extension of the common fund doctrine, the court in Darlington, supra, 241 Ind. at 542 , 162 N.E.2d at 621 , clearly rejected the notion that a sum of money had to be created before attorney’s fees could be awarded.

2023See id. [27] Then, the next year, our court decided Dillon v. Glover, 597 N.E.2d 971 (Ind. Ct. App. 1992), trans. denied, in which the new Commissioner of the Indiana Department of Insurance, Dillon, challenged the availability of excess damages from the Fund based on the lack of evidence that the doctor’s mistake had proximately caused Glover’s damages.

2023Judge Shields would have held the Fund’s challenge precluded, but only because she believed the Fund to be raising “an issue of liability rather than an issue of whether particular damages . . . are compensable under the Act.” Callaway, 609 N.E.2d at 429 (Judge Shields, concurring in result). [30] Thus, the language in Subsection (5) of Indiana Code section 34-18-15-3 prohibits post-settlement challenges to liability, see Glover, 597 N.E.2d at 973 -74 (citing subsection 5 of prior version of the statute, then codified as Ind. Code § 16-9.5-4 -3, which contained the same language), but does not

2023Based on this precedent, we hold the Fund can challenge the compensable nature of the Appellants’ damages under the MMA even after Appellants reached a settlement with providers that admitted liability. 6 See also J.L. v. Mortell, 633 N.E.2d 300, 303-304 (Ind. Ct. App. 1994) (holding trial court’s inquiry into the compensable nature of the plaintiff’s damages was proper based on Callaway and Kumeiga), trans. denied.

2023(Appellant’s Reply Br. at 11 Court of Appeals of Indiana | Opinion 22A-CT-2559 | May 4, 2023 Page 19 of 24 (citing Dillon v. Callaway, 609 N.E.2d 424 (1993) (hereinafter “Callaway” 5), trans. denied.) Appellants are simply wrong. [26] In 1991, the Commissioner of the Department of Insurance, Eakin, appealed a trial court ruling that allowed medical malpractice claimants, the Kumiegas, to access excess damages from the Patient’s Compensation Fund for emotional distress that resulted from witnessing the death of their daughter.

2023Judge Shields would have held the Fund’s challenge precluded, but only because she believed the Fund to be raising “an issue of liability rather than an issue of whether particular damages . . . are compensable under the Act.” Callaway, 609 N.E.2d at 429 (Judge Shields, concurring in result). [30] Thus, the language in Subsection (5) of Indiana Code section 34-18-15-3 prohibits post-settlement challenges to liability, see Glover, 597 N.E.2d at 973 -74 (citing subsection 5 of prior version of the statute, then codified as Ind. Code § 16-9.5-4 -3, which contained the same language), but does not

2023See id. [27] Then, the next year, our court decided Dillon v. Glover, 597 N.E.2d 971 (Ind. Ct. App. 1992), trans. denied, in which the new Commissioner of the Indiana Department of Insurance, Dillon, challenged the availability of excess damages from the Fund based on the lack of evidence that the doctor’s mistake had proximately caused Glover’s damages.

2023Judge Shields would have held the Fund’s challenge precluded, but only because she believed the Fund to be raising “an issue of liability rather than an issue of whether particular damages . . . are compensable under the Act.” Callaway, 609 N.E.2d at 429 (Judge Shields, concurring in result). [30] Thus, the language in Subsection (5) of Indiana Code section 34-18-15-3 prohibits post-settlement challenges to liability, see Glover, 597 N.E.2d at 973 -74 (citing subsection 5 of prior version of the statute, then codified as Ind. Code § 16-9.5-4 -3, which contained the same language), but does not

1999See Trustees v. Greenough (1882) 105 U.S. 527 , 26 L.Ed. 1157 .

1999See Trustees v. Greenough (1882) 105 U.S. 527 , 26 L.Ed. 1157 .

1999See Wright, et al., supra at § 2675 (referring to Alyeska, supra, 421 U.S. at 257-58 , 95 S.Ct. 1612 ).

1999See Wright, et al., supra at § 2675 (referring to Alyeska, supra, 421 U.S. at 257-58 , 95 S.Ct. 1612 ).

1999In support of this proposition, they rely upon several cases, including Oklahoma Tax Comm’n v. Ricks (1994) Okla., 885 P.2d 1336, 1339-40 , a tax refund case, wherein the court made the following statement: “[t]he ■ majority rule in state and federal courts is that, before a money pool may be subjected to a common-fund attorney’s-fee assessment, the created or preserved fund must be brought under the direct supervision and control of the court.” (footnotes omitted) (emphasis in original). 51 However, the court further explained “the sine qua non of control is the court’s present authority to a

1999In support of this proposition, they rely upon several cases, including Oklahoma Tax Comm’n v. Ricks (1994) Okla., 885 P.2d 1336, 1339-40 , a tax refund case, wherein the court made the following statement: “[t]he ■ majority rule in state and federal courts is that, before a money pool may be subjected to a common-fund attorney’s-fee assessment, the created or preserved fund must be brought under the direct supervision and control of the court.” (footnotes omitted) (emphasis in original). 51 However, the court further explained “the sine qua non of control is the court’s present authority to a

1999See, e.g., Blum v. *552 Stenson (1984) 465 U.S. 886, 900, n. 16 , 104 S.Ct. 1541 , 79 L.Ed.2d 891 (noting that when calculating attorney’s fees under the common fund doctrine, a reasonable fee is usually determined by taking a percentage of the fund bestowed upon the class); Newberg & Conte, supra, § 14.03, at 14-5, n. 22; Wright, et al., supra at § 1803 (“Instead [of using lodestar to determine a reasonable attorney’s fee], a percentage fee approach has been utilized with general agreement that a range of 25-30% is justified.”). 56 The dispositive Issue then becomes what percentage of the fun

1999See, e.g., Blum v. *552 Stenson (1984) 465 U.S. 886, 900, n. 16 , 104 S.Ct. 1541 , 79 L.Ed.2d 891 (noting that when calculating attorney’s fees under the common fund doctrine, a reasonable fee is usually determined by taking a percentage of the fund bestowed upon the class); Newberg & Conte, supra, § 14.03, at 14-5, n. 22; Wright, et al., supra at § 1803 (“Instead [of using lodestar to determine a reasonable attorney’s fee], a percentage fee approach has been utilized with general agreement that a range of 25-30% is justified.”). 56 The dispositive Issue then becomes what percentage of the fun

1996See NIPSCO v. Citizens Action Coalition, 548 N.E.2d 153 (Ind.1989) (statute did not abrogate citizens group’s common law right to recover attorney fees under common fund, and ordered attorney fees be paid out of refund due class of utility ratepayers); City of Hammond v. Darlington, 241 Ind. 536 , 162 N.E.2d 619 (1959) (common fund applied where legal services prevented payment of 124 judgments against the City thereby realizing a savings for city taxpayers); Greensburg Local No. 761, supra, (common fund exception applied to union members defending malicious prosecution action arising out of c