fund doctrine in Vermont

2025On appeal, we affirmed, recognizing “under appropriate circumstances, the common fund doctrine may be applied to require an insurer to pay a proportionate share of the 7 attorney’s fees incurred by its insured in obtaining a judgment or settlement that satisfies the insurer’s subrogated interest” unless the insurer can demonstrate that it “actively participated in or substantially contributed to, recovery of the common fund.” Guiel, 170 Vt. at 469, 472 , 756 A.2d at 781, 783 (quotation omitted) (recognizing other jurisdictions apply common-fund doctrine in these circumstances).

2025On appeal, we affirmed, recognizing “under appropriate circumstances, the common fund doctrine may be applied to require an insurer to pay a proportionate share of the 7 attorney’s fees incurred by its insured in obtaining a judgment or settlement that satisfies the insurer’s subrogated interest” unless the insurer can demonstrate that it “actively participated in or substantially contributed to, recovery of the common fund.” Guiel, 170 Vt. at 469, 472 , 756 A.2d at 781, 783 (quotation omitted) (recognizing other jurisdictions apply common-fund doctrine in these circumstances).

2025The common fund doctrine is limited to cases in which a party has “successfully created a ‘common fund.’ ” Robes, 161 Vt. at 199 , 636 A.2d at 350 (declining to apply common- fund doctrine because defendants prevailed on all counts and plaintiffs did not recover damages); see Haggart v. Woodley, 809 F.3d 1336, 1352 (Fed.

2025The common fund doctrine is limited to cases in which a party has “successfully created a ‘common fund.’ ” Robes, 161 Vt. at 199 , 636 A.2d at 350 (declining to apply common- fund doctrine because defendants prevailed on all counts and plaintiffs did not recover damages); see Haggart v. Woodley, 809 F.3d 1336, 1352 (Fed.

2010Daniels v. Vermont Center for Crime Victim Services, 173 Vt. 521, 524 (2001)(“we need not decide whether we will extend the common fund doctrine beyond the insurance context”).

2006We subsequently made clear, however, in Daniels that if the statute at issue required full reimbursement, we would not apply the common fund doctrine. 173 Vt. at 522-23 , 790 A.2d at 378-79 (construing statute granting right of subrogation “to the extent of the cash payments granted” to require full reimbursement to government agency).

2025Bogart v. King Pharms., 493 F.3d 323, 330 (3d Cir. 2007) (recognizing claimant must be “more than an initial impetus behind the creation of a benefit” (quotation omitted)); Gabrielson v. City of Long Beach, 363 P.2d 883, 886 (Cal. 1961) (recognizing that extending common-fund doctrine to apply in circumstances “merely because the attorney’s services have benefited the class to whom the fund belonged would place his interests in conflict with those of his client”).

2025Bogart v. King Pharms., 493 F.3d 323, 330 (3d Cir. 2007) (recognizing claimant must be “more than an initial impetus behind the creation of a benefit” (quotation omitted)); Gabrielson v. City of Long Beach, 363 P.2d 883, 886 (Cal. 1961) (recognizing that extending common-fund doctrine to apply in circumstances “merely because the attorney’s services have benefited the class to whom the fund belonged would place his interests in conflict with those of his client”).

2025The common fund doctrine is limited to cases in which a party has “successfully created a ‘common fund.’ ” Robes, 161 Vt. at 199 , 636 A.2d at 350 (declining to apply common- fund doctrine because defendants prevailed on all counts and plaintiffs did not recover damages); see Haggart v. Woodley, 809 F.3d 1336, 1352 (Fed.

2001See Aylward v. Dragus, 402 N.E.2d 700, 702 (Ill.

2000See id. at 198-99 , 636 A.2d at 349-50 ; Savoie v. Merchants Bank, 84 F.3d 52, 56 (2d Cir. 1996).

2000Cf. Van Hall, 704 A.2d at 369 (phrase “to the extent of our payment” contained in insurance contract “does not clearly address the question whether the insured is permitted to retain a prorated portion of the cost of recovery from its obligation under the contract’s subrogation clause”).

2000See id. at 837-38, 840 (common fund doctrine applies in cases where, other than writing letters informing tortfeasors’ insurers of subrogation interest and notifying insureds of intent to pursue subrogation rights independently, subrogated insurers sat back and waited for insureds to reach settlement with tortfeasors); cf. Van Hall, 704 A.2d at 369 n.5 (insurer’s letter informing insured that it intended to pursue subrogation claim independently did not insulate insurer from contributing to attorney’s fees incurred by insured in protecting insurer’s claim; insurer cannot recover its subrogatio

2000See Norwood, 463 N.W.2d at 68 (equitable principles underlie rule that right to subrogation carries with it duty to pay proportionate share of attorney’s fees); Hedgebeth, 378 A.2d at 230 (common fund doctrine is based on equitable principle that insurer should not be entitled to enjoy fruits of insured’s judgment against tortfeasor without contributing in any way to costs or burdens of litigating that claim).

2000See id. at 837-38, 840 (common fund doctrine applies in cases where, other than writing letters informing tortfeasors’ insurers of subrogation interest and notifying insureds of intent to pursue subrogation rights independently, subrogated insurers sat back and waited for insureds to reach settlement with tortfeasors); cf. Van Hall, 704 A.2d at 369 n.5 (insurer’s letter informing insured that it intended to pursue subrogation claim independently did not insulate insurer from contributing to attorney’s fees incurred by insured in protecting insurer’s claim; insurer cannot recover its subrogatio

2000See id. at 837-38, 840 (common fund doctrine applies in cases where, other than writing letters informing tortfeasors’ insurers of subrogation interest and notifying insureds of intent to pursue subrogation rights independently, subrogated insurers sat back and waited for insureds to reach settlement with tortfeasors); cf. Van Hall, 704 A.2d at 369 n.5 (insurer’s letter informing insured that it intended to pursue subrogation claim independently did not insulate insurer from contributing to attorney’s fees incurred by insured in protecting insurer’s claim; insurer cannot recover its subrogatio

2000See Norwood, 463 N.W.2d at 68 (equitable principles underlie rule that right to subrogation carries with it duty to pay proportionate share of attorney’s fees); Hedgebeth, 378 A.2d at 230 (common fund doctrine is based on equitable principle that insurer should not be entitled to enjoy fruits of insured’s judgment against tortfeasor without contributing in any way to costs or burdens of litigating that claim).

1993Braude v. Automobile Club of S. Cal., 223 Cal. Rptr. 914, 920 (Ct. App. 1986).