as i was looking at the panel today i know that two of the three of you were present for the stevens case which we rely on justice appleton was it the sense of justice turner was in favor of the pla and that's the same argument that's been made by the apple e in this case in that judge to me considered was that no one was created in essence even though state farm's in that practice a page in the underlying litigation did that do anything on its own to attempt to secure the payment but there are the claims and we're talking about identical insurance companies here state bar and state farm both with  one thousand dollars because the lien was twenty seven thousand dollars and state farm wanted to avoid paying the one thousand dollars as attorneys fees and it's pro rata share of costs by simply saying at the last minute eleventh hour we're not going to participate in this we don't have a lien and and the court doesn't have any jurisdiction because this is in essence an arbitration matter it's now up for the court and very similar to what happened in the stevens decision that argument to that  credit two of the three justices that wrote that decision and we feel that it's very much a similar situation difference perhaps is in the stevens case we get it apparently from the face for at least reviewing the injuries to the plaintiff and what happened was that country wrote a check for fifty thousand dollars less the amount of the medical payments saying that there was nothing that the plaintiff's attorney did create and certainly didn't do tend to require or to remove the plaintiff's attorney from creating this we should just clarify the amount of money additional years since we one third of twenty seven thousand dollars in medical state farm with a third party ten fifty thousand dollars by that time twenty seven thousand dollars had been paid by state farm so it was right under the common  or at least the point that was made by judge time it was no fund was created therefore there's nothing to adjudicate that's the argument that they made there you in the stevens case found that a fund had been created  and i don't believe we have to wait till the evaluation were at least ten europe or the award in an arbitration hearing in some point time to adjudicate twenty seven which you can help me out here if the the undershirt claim and you might very well for bail while they support the cases you cited sure the stevens case i think is is what you're holding onto the fact that the hundred thousand dollars was ultimately tender but the fact of the matter is it's the timing of the adjudication i understand what you're saying do we have to wait to find out if an award is greater than seventy seven thousand some change but i don't believe that's necessary because in it state farm did not say we're waving the rights and it just judge that he did not buy that argument then it would be a simple adjudication of the lean with the trial court prior to any further you i am proceedings what state farm is it simply said at the last minute without creating one we just want to settle w argument is absolutely consistent with what you said what you did in stevens even though it was used as a set off it was the trial court that had the right to adjudicate the lien it was no arbitration here because interaction basis and it's not and even though it may be inconsistent with you i am policy itself courts have agreed that it is appropriate when the attorney creates the fund so the timing is important as to who would judy kates it and it has to be adjudicated with the trial court because quite frankly i'm not even sure that the arbitration panel would have the ability to choose a cape under the common  doctrine when looking at the language of the policy itself it would get a set off bombs paid and medical payments coverage and that's what we're trying to say we're trying to say you can't at the eleventh hour but he he had difficulty wrapping stevens around the facts that we have them as we have them here because stephen says a fund was created he made a decision absolutely contrary to what stephen said and what he did is he bought the argument of the case that was cited by the defendant which is the the case where there was a five thousand medical pay present when this was for corey but that's the only thing that makes sense is what the waiver meant he meant waiver as far as keep any sort of set off collectibility against the under insured motors creation but that's claims against the defendant george robinson for fifty thousand dollars and state farm as the defendant's insurer has been ordered to write a check in the full amount of fifty thousand dollars payable only to plaintiff and his attorney its state farm will not receive any funds from the robinson settlement therefore that tort settlement is not a common fund as between plaintiff and state farm the robinson settlement is a fund that benefits only plaintiff and his attorney it's all of the cases cited by plaintiffs recognize that the common fund doctrine is based in equity and does not apply unless the non client who is asked to pay fees to the attorney actually benefits or recover something from the fund that was created solely by the attorney's effort state farm has not benefited from plaintiff's tort settlement therefore the common fund does not apply to the tort saddle me as it stands plaintiff has full benefit of fifty thousand dollars toward settlement from mr robinson's policy plus the additional twenty seven thousand and change in medical payments benefits that state farm already has paid from plaintiff's own policy whether and to what extent plaintiffs or say farm might be able to avoid paying those same medical expenses twice in the uninsured motorist arbitration is purely speculative at this point the under insured motorists coverage arbitration has not occurred therefore it has not been established that plaintiff is entitled to any o far right we're going to come for if you didn't agree well it's a fine but it's not a common fund as between plaintiff and state farm because state farm is not benefiting from that fund at all we're not recovering the thousand dollars directly to his medical providers but a farmer is not getting any of that money back state farm is writing another check fifty thousand dollars therefore paying seventy seven thousand dollars and not recovering anything as we currently assuming that the plaintiff is entirely recover anything further at all if it's determined in the u i and proceeding that he's not entitled to anything beyond the fifty that he's already received from the tortfeasor then he keeps the fifty and he keeps the twenty seven he already has and state farm gets nothing so it's entirely possible state farm will never get a credit for that twenty seven thousand dollars we waived it against the tort settlement and it's possible that there may not be any further benefits in the under insured well the only thing the trial court has jurisdiction over was the tort settlement what happens in the under insured motorists arbitration is a separate proceeding and if there were some dispute about credits and set ups in the under insured motor the the issues in the under insured motorist coverage arbitration are contractual issues the contract between plaintiff and his own insurance company was not an issue in the torts that was soley a personal interaction between plaintiff and the tortfeasor contractual issues between mr waterhouse and his own insurer happy resolved separately from that you can join those actions and those issues in the to the case law the plaintiff relies upon is distinguishable in that in each case the insurer was trying to have it both ways by simultaneously seeking the protection of its recovery from a third party in the tort suit but trying to a state farm didn't send attending a letter at the outset of the case the problem with that argument is that we never reach the issue of whether state arms actions were sufficient to prevent otherwise proper application of the comm his plaintiff has an established the common bond doctrine applies in the first place the tell me letter is only necessary when there actually is a common bond out of which the client and non clients are recovering there isn't one here mr white house again is getting the entirety of mr robinson's liability policy and plaintiff's attorney is taking a one third beat on the entire settlement there is no unjust enrichment to state farm in this case it's plaintiff who appears to be trying to have it both ways and to receive an unjust enrichment plaintiff is trying to keep the full fifty thousand dollars of defendants liability policy while simultaneously seeking a and order which properly rejected that attempt not only because it's an equitable but also because all issues regarding the future under insured motorists coverage arbitration are premature and were not properly before the hundred fifty thousand dollars so there's one hundred thousand last of damages once you've got the fifty but there's only fifty thousand in you i have coverage right correct so the plaintiff is not going to be i'd like to discuss stevens briefly because plaintiff placed a lot of reliance on it but that case does not support the argument that plaintiffs counsel has created the fund from which state farm has benefited due to the differences in pacs and the procedure posture that the settlement check in addition the separate under insured motorist claim asserted by the plaintiff already had been resolved for the policy limit the majority and stevens concluded that the plaintiff's insurer had benefited from the tort settlement created by the plaintiff's counsel from the other insurer because the plaintiff's insurer otherwise would have had to been required to expend significant amounts to recover its medical payments from the third party the majority never reach the issue of whether the medical payments were reimbursed from the under insured motorists settlement rather than the tort settlement here in contrast state farm didn't assert a lien against bittorrent settlement expressly waived any potential claim that it could have made against that settlement and is not receiving any funds from the settlement self in addition there's been no determination that plaintiff isn't title to under insured motorists coverage benefits in any amount from which state farm could potentially avoid double payments of medical payments in the future by doing the offset against the under insured motorist coverage or work in any event as justice appleton in his dissent in stevens rejected the idea that the common fund doctrine would apply to a set off of medical payments benefits against under insured motorists coverage benefits paid by the same insurer which is the situation we have here since those payments arise only by operation of the contract  as opposed to being the result of creation of a fund by the plant been one third now you're wanting to use his work to get the whole twenty seven thousand back without paying any attorney and he's saying no he created the common fund so you got to pay your one  state farm had just simply paid its medical payments benefits under mr potter house as policy and then we proceeded to an uninsured or under insured motorist coverage arbitration it's simply a matter of of applying the policy language the non duplication of benefits provision which puts the student's court said that doesn't cover the debt that is called  at a page eight o two of the students opinion the senate the majority indicates we decline to address the merits of countries mutuals argument that the common fund doctrine does not apply because the medical payments provided to stevens were reimbursed from his under insured motorists coverage and pursuant to its insurance policy the state it's so that the majority did not reach the issue of whether the majority appears to have concluded that the plaintiff's insurer did in fact recover from the tort settlement but that is clearly not the case here because the trial court has ordered that the settlement check and in the tort case be made payable only to plaintiff and his attorneys that's why stevens is not instructive here because this this opinion assumes that there is actually recovery from the tort settlement but that's not what's well i mean it's a benefit to the insurer he he gets all business on the up front and then we can you know we'll see if he's entitled to anything more but for now he can have his full recovery and we'll just make them to call later  that short settlement plaintiff counsel simply has not created a fund that has benefited or will benefit state farm plaintiff separate under insured motors coverage benefits under his own insurance policy with state farm is subject to arbitration has not yet been of the plaintiff's insurance company so whether it's a company a company b or two company a's who are placed same simply because the same insurance company does it mean that one gesture can adjust all claims that's supposed to do that that's clear i also want to go over what she said and it all really starts off with this because that's their primary no benefit was created for the defendant or excuse me poor state bar and the fact of the matter is this directly addressed under to theory they had the benefit by which they could collect the twenty seven thousand dollars subject to the common fund dr in the first fifty thousand thousand dollars that we were able to obtain in the tortfeasor years insurance policy under either scenario they get a bed and that was specifically addressed in the argument stevens or there is no duplication  substantial administrative and legal speed resources to recover the twenty thousand dollars of a stevens and your section nine a subrogation so they don't let it die to get their money back even though they thanks to both of you cases submitted in the court stands in recess until further call