Hauptman, O'Brien v. Auto-Owners Ins. Co., 964 N.W.2d 264

Auto-Owners paid $1,000 in medical payments to its insured, Charlyn Imes, after a car accident.
Imes hired Hauptman, O’Brien, Wolf & Lathrop, P.C. on contingency to sue the negligent third party; the suit settled for $48,200.
The insurer asserted a $1,000 subrogation interest and refused the law firm’s proposal to accept a one-third reduction in exchange for the firm’s efforts.
The law firm sued the insurer seeking $333.33 under the common fund doctrine (one-third of the insurer’s $1,000 subrogation recovery) for attorney fees.
County court and district court granted summary judgment to the law firm; the Court of Appeals affirmed. The sole legal issue on further review was whether Neb. Rev. Stat. § 44-3,128.01 preempts the common fund doctrine as applied to attorney fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 44-3,128.01 preempts or abrogates the common fund doctrine so that an insurer need not contribute attorney fees when it collects subrogated medical payments	The statute is silent on attorney fees; common fund doctrine applies and the insurer benefited, so it must pay its pro rata share of attorney fees	The statute and policy give the insurer an enforceable right to full recovery of medical payments (when policy limits not involved), which preempts any common-law requirement to pay a share of attorney fees	The statute is silent as to attorney fees and does not express an intent to abrogate the common fund doctrine; common fund recovery for attorney fees survives and judgment for the law firm is affirmed

United Servs. Auto. Ass’n v. Hills, 172 Neb. 128 (1961) (applied the common fund doctrine to an insurer’s subrogation interest)
Milbank Ins. Co. v. Henry, 232 Neb. 418 (1989) (upheld validity of medical-payments subrogation clause that § 44-3,128.01 later addressed)
Walentine, O’Toole v. Midwest Neurosurgery, 285 Neb. 80 (2013) (discusses the common fund doctrine in Nebraska law)
Sprague v. Ticonic Bank, 307 U.S. 161 (1939) (traces equity courts’ authority to award fees from a recovered fund)