Walentine, O'Toole v. Midwest NeurosurgeryWalentine, O'Toole v. Midwest Neurosurgery
Motions to Dismiss: Appeal and Error. A distriсt court’s grant of a motion to dismiss is reviewed de novo. - Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order dismissing a complaint, the appellate court accepts as true аll facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion.
- Attorney Fees: Equity. The common fund doctrine provides that an attorney who renders services in recovering or preserving a fund, in which a number of persons are interested, may in equity be allowed his compensation out of the whole fund, only where his services are rendered on behalf of, and are a benefit to, thе common fund.
Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Affirmed.
Richard C. Gordon and Betty L. Egan, of Walentine, O’Toole, McQuillan & Gordon, L.L.P., for appellant.
Richard D. Vroman and Brenda K. Smith, of Kоley Jessen, P.C., L.L.O., for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and CASSEL, JJ.
HEAVICAN, C.J.
INTRODUCTION
The law firm of Walentine, O’Toole, McQuillan & Gordon, L.L.P. (Walentine), filed a complaint seeking attorney fees from Midwest Neurosurgery, P.C. (Midwest), under the common fund doctrine. Midwest filed a motion to dismiss, which was granted. Walentine appeals.
FACTUAL BACKGROUND
Walentine represented Alan Thompson in a workers’ compensation aсtion against Thompson’s employer. Following a trial, Thompson was awarded compensation, including medical expenses incurred by Thompson with Midwest, in the amount
Subsequently, Walentine filed a complaint against Midwest asserting that under the common fund doctrine, Walentine was entitled to an attorney fee from Midwest. Midwest filed a motion to dismiss under
ASSIGNMENTS OF ERROR
On appeal, Walentine assigns, restated and consolidated, that the district court erred in (1) apрlying
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is reviewed de novo.1 When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion.2
ANALYSIS
On appeal, Walentine argues generally that it was entitled to attorney fees from Midwest under the common fund doctrine and that
[3] The common fund doctrine provides:
“An attorney who renders services in recovering or preserving a fund, in which a number of persons are interested, may in equity be allowed his compensation out of
the whole fund, only whеre his services are rendered on behalf of, and are a benefit to, the common fund.”3
Walentine argues that this doctrine is applicable in this case because it was through its representation of Thompson before the Workers’ Compensation Court that an award was entered allowing Midwest recоvery on the amounts owed by Thompson.
Midwest, however, argues that the common fund doctrine does not provide relief to Walentine in this situation, and instead contends that Walentine is not entitled to fees as a result of
Whenever the employer refuses payment of compensation or medical pаyments subject to section 48-120, or when the employer neglects to pay compensation for thirty days after injury or neglects to pay medical pаyments subject to such section after thirty days’ notice has been given of the obligation for medical payments, and proceedings are held before the compensation court, a reasonable attorney’s fee shall be allowed the employee by the compensation court in all сases when the employee receives an award. Attorney’s fees allowed shall not be deducted from the amounts ordered to be paid for medical services nor shall attorney’s fees be charged to the medical providers.
(Emphasis supplied.)
We recognize that
Nor is this an unfair result. Under the first part of
Furthermore, policy considerations support this conclusion. If one could recover fees from medical providers in distriсt court, such could provide an incentive for attorneys to file for fees there instead of asking for fees in the Workers’ Compensation Court. This would be of particular concern in situations that, for whatever reason, counsel felt the Workers’ Compensation Court might not be receptive to its claim, but also where the Workers’ Compensation Court declined to award fees or did not award the amount of fees sought by counsel. There is also a conсern, as expressed by Midwest, that medical providers would decline to provide services to workers’ compensation claimants for fear that thе provider would later be hauled into district court by claimant’s counsel’s demand for fees.
In addition to arguing that
In Kaiman, the attorney of an injured employee brought an action in district court for the recovery of attorney fees from his client’s health care insurer. The Court of Appeals first noted that there was no reason for the common fund doctrine to not apply. The Court of Appeals then held that because the insurer could not have been mаde a party in the underlying action in order to obtain fee sharing, fundamental due process required that the insurer, or any other potential fee sharеr, should have a forum in which to be heard on whether it should be required to share in the payment of attorney fees. As such, the district court action was permissible.
While the relevant language of
We conclude that the plain language of the last sentence of
CONCLUSION
The decision of the district court is affirmed.
AFFIRMED.
MILLER-LERMAN, J., not participating.