9TH CIRCUIT

There are no published Circuit cases requiring specific language in order to defeat a common fund claim.  In an unpublished decision the Circuit held that the common fund doctrine will be presumed not to apply so long as the plan provision states that the plan is entitled to reimbursement “to the extent of benefits paid.”  Green v. Hotel Employees & Restaurant Employees Int. Welfare-Pension Funds, No. 95-16314, 1997 U.S. App. LEXIS 401 (9th Cir. Jan. 7, 1997).

NOTEWORTHY CALIFORNIA STATE LAW: Whether an insured has been made whole is determined by comparing the insured’s total damages resulting from the third party’s tortious conduct with the total amount the insured recovered in compensation for those damages.  The narrow issue presented in this writ proceeding is whether, in calculating the made-whole amount under no-fault medical payments insurance coverage, the insured’s total recovery amount must be reduced by the insured’s attorney fees and costs incurred to obtain the compensation from the third party tortfeasor.  We conclude that under California law these expenses are not deducted when calculating the total recovery received by the insured. Allstate Insurance v. Superior Court (Docket No. 047429)