Moruzzi v. CCC Services, Inc.

Plaintiffs filed declaratory judgment action seeking construction of auto insurance policy in effect when Plaintiff was injured by an underinsured (UIM) driver. The common-fund doctrine does not apply. Insurer was never subrogated to Plaintiffs' rights in its settlement with tortious driver's insurer, but instead it deducted its Medical Payments (MP) from its own liability. Thus, insurer had no legal right to the proceeds of the tort recovery. In the absence of subrogation, the insurer sets off the amount that it paid its insured in MP benefits from what it owes its insured in UIM coverage. Plaintiffs' counsel did not create a common fund and thus insurer is not liable to Plaintiffs' counsel for attorney fees. (JORGENSEN and SCHOSTOK, concurring.)