Fletcher Allen Health Care v. Clapp, No. S1001-09 C nC (Toor, J., May 11, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT C HITTENDEN C OUNTY

│ FLETCHER ALLEN HEALTH CARE │ Plaintiff │ │ S UPERIOR C OURT v. │ Docket No. S1001-09 CnC │ MICHAEL B. CLAPP, ESQ. │ Defendant │ │

RULING ON MOTION FOR SUMMARY JUDGMENT This is a declaratory judgment action by which plai ntiff Fletcher Allen seeks recovery of roughly $16,000 on a medical lien again st a personal injury recovery. Defendant Clapp was litigation counsel for the pati ent, and is holding the disputed funds. He asserts entitlement to them as a portion of his attorney’s fees and costs in the personal injury action. Fletcher Allen has filed a motion fo r summary judgment. Clapp has filed no response to the motion. Thus, all fact alleged in t he Statement of Undisputed Material Facts are deemed admitted. V.R.C.P. 56(c)(2). 1 The facts are as follows. In 2003, Clapp’s client, David Deldebbio, was injured in

a car accident for which he received medical treatm ent at Fletcher Allen. He did not pay all the medical bills. As a result, Fletcher Allen perfected a lien against the proceeds of any future recovery of damages or settlement procur ed by Deldebbio in connection with the accident. At the time the lien was perfected, t he amount of the outstanding medical bills was $43,128.91.

1 The court notes that the statement of material fac ts does not comply with Rule 56 because it is unsupported by citations to admissible evidence. Ha d Clapp opposed the motion on that basis, it would have been denied. However, the court construes his failure to respond as a waiver of any objection on that ground.2 Deldebbio subsequently recovered $478,471.32 in a l awsuit against the responsible party in the car accident. Clapp was hi s attorney. Clapp sent Fletcher Allen payment in the amount of $26,272.24, rather than th e full amount of the outstanding bills. He explained that he had deducted a $500 exemption under 18 V.S.A. § 2251; had deducted what he calculated as Fletcher Allen’s pro rata share of his attorney’s fees; and had deducted $1,881.91 for Fletcher Allen’s share o f the litigation expenses. The settlement amount of $478,471.32 was adequate t o pay for all attorney’s fees and expenses in that litigation.

Conclusions of Law The statute pursuant to which Fletcher Allen assert s its lien is 18 V.S.A. § 2251. It states that a hospital in Vermont that furnishes me dical or other service “shall have a lien upon any recovery for damages to be received by the patient ... after the date of

services.” It further states that the lien “shall n ot attach to one-third of said recovery or $500.00 whichever shall be the lesser,” and that th e lien “shall be subordinate to an attorney’s lien.” The plain meaning of this language is that the $500 deduction claimed by Clapp is correct, but his treatment of attorney’s fees and e xpenses is not. The language “subordinate to” unambiguously says that the attorn ey’s lien gets deducted first, and the hospital lien gets deducted second. Here, where the re is enough (after the $500 deduction) for both liens to be paid, Fletcher Alle n is entitled to payment in full. The court does not find support for a contrary conc lusion in the common fund doctrine. That doctrine “permits a prevailing party --whose lawsuit has created a fund that is intended to benefit not only that party but othe rs as well--to recover, either from the3

fund itself or directly from those others enjoying the benefit, a proportional share of the attorney’s fees and costs incurred in the lawsuit.” Guiel v. Allstate Insurance Co , 170 Vt. 464, 468 (2000). In Guiel , the Court held that the doctrine can be applied t o an insurer’s subrogation rights, so that the insurer contributes a portion of the insured’s attorney’s fees in obtaining the recovery. 2 The doctrine is “grounded on equitable principles and applied on a case-by-case basis.” Id . at 783. The common fund doctrine has not been extended beyo nd the insurance arena in

Vermont. Daniels v. Vermont Center for Crime Victim Services , 173 Vt. 521, 524 (2001)(“we need not decide whether we will extend t he common fund doctrine beyond the insurance context”). Moreover, there is no basi s for applying the equitable doctrine here because there is a statute expressly declaring the parties’ relative rights with regard to the attorney’s fees. As the Supreme Court noted in a case following Guiel , “if the statute at issue require[s] full reimbursement, we [will] not apply the common fund

doctrine.” In re Butson , 2006 VT 10, ¶ 6, 179 Vt. 599.

Order The motion for summary judgment is granted. Fletche r Allen is directed to submit a proposed judgment within ten days, to which Clapp shall have five days to object pursuant to V.R.C.P. 58(d). Dated at Burlington this day of May, 2010.

_____________________________ Helen M. Toor Superior Court Judge

2 Even then, the doctrine “should be applied only af ter the trial court determines that it is equitable to do so because of the facts of the particular cas e at hand.” Id . at 470.