*1
ly, we conclude that
Carol VAN Notwithstanding the court’s Supreme Judicial Court of Maine. rationale, however,
mistaken the HGN testi mony properly Although the admitted. Argued Sept. independent finding of the court made no 12, 1997. Decided Dec. test, reliability recently of the HGN we held judicial that we take notice of the would
reliability making tests in determina such probable
tions of cause to arrest and for purposes establishing guilt operating Taylor,
under the influence cases.7 State v. ¶81, 10, 1997 ME 910. We id; may judicial appeal. take notiсe on 201(f).8 see also M.R. Evid. Taylor stated in that “the [¶ 18] We results should be of the HGN test admissible proper if a foundation is laid for their intro proper A foundation duction evidence. shall consist of evidence that the officer or
administrator of the HGN test is trained
procedure
properly
and the test was
¶
Taylor, 1997 ME
administered.”
case,
In
test’s See id. The court did not admitting testimony. Ballard’s err HGN is: Judgment affirmed. 201(f) (that provides: "Judi- statutorily categorized drugs Evidence 8. Maine Rule of tended to mean is, drugs pursuant any stage M.R.S.A. may scheduled to 17-A be taken at cial notice proceedings." recognize did not have the 7. We that the court Taylor, which was benefit of our decision in ruling the court’s in this case. decidеd after *2 Monaghan, (orally),
Noah D. Wuesthoff Portland, for Leahy, Libby, & Hoehadel plaintiff. Ferris,
Joseph (orally), Dearborn L. Ferris Brewer, for Willey, & defendant. Simmons, P.A, Macri, Paul Berman & F. Tremblay. Lewiston, Mary curiae for amici Leavitt, Freidman, Babcock H. Laurence Portland, Gaythwaite, amici curiae & Mutual Assurance Co. Middlesex C.J., ROBERTS, WATHEN, Before CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
DANA, Justice. a sum- appeals Van Hall from
[¶ 1] Carol
mary
Superior
entered in the
J.)
Brennan,
(Cumberland
County,
Court
Group Maine
favor
York Insurance
it
trial
when
contending that the
court erred
she was
as a matter
law that
determined
proportionate
a
share
not
to deduct
entitled
from
funds due
clause of
pursuant
subrogation
York
agree
policy.
аutomobile
judgment.
and vacate the
accident,
Following her automobile
[¶2]
$5,000
Hall’s medical
paid
York
toward Van
payment
expenses pursuant
medical
policy.
provision of her automobile insurance
later settled
claim
$65,000
party
responsible third
signed
release. After settlement
general
a
from Van
requested
York
reimbursement
$5,000
pursu-
payment
Hall for the
medical
contract’s
ant
the insurance
attorney ten-
Hall and
provision.1 Van
made has
to recover
provision
1. The relevant contract
states:
subrogated to
we
another
shall be
OUR SIGHT TO RECOVERPAYMENT
right. That
do:
shall
necessary
us to
enable
Whatever is
A. If
rights;
our
exercise
York,
dered
retaining one-third
“Ordinarily,
337 N.W.2d
($1,650)
prorated
as a
legal
share of
fees and where [an] insured recovers a reimburse-
costs. York
refused the offerеd
ment of benefits for the no fault insurance
complaint
tortfeasor,
and filed a
from a
the no fault in-
seeking declaratory judgment
that it
company obligated
had
surance
to contribute to
*3
legal right pursuant
policy
to the insurance
payment
the
of costs
attorney
and
fees in-
$5,000.
to recover the full
by
At the conclusion curred
in obtaining
[the] insured
the reim-
discovery,
parties
of
both
filed motions for a
company.”
bursement
the insurance
46A
summary judgment.
(1993).
hearing
After
§
the court C.J.S. Insurance
1636
granted
summary judgment
to York and
adoption
We
[¶ 5]
believe that
of the
pay
ordered Van Hall to
to York.
common fund doctrine in Maine will
in
result
We review
the
of a sum
equitable
a more
relationship
an
between
mary judgment
law,
for errors of
viewing the
company
and its insured in eases
evidence in a light most favоrable to the
such as this. As one commentator has stat
party against whom
judgment
the
was en
ed:
Huotari,
41,
tered. Kandlis v.
678
42
A.2d
company lays
When an insurance
claim to
(Me.1996).
party
A
summary
is entitled to a
subrogation proceeds, obviously someone
genuine
there is no
issuе of
them,
attorneys
has to collect
rarely
and
party
undisputed
material fact and the
on the
work for
grossly inequitable
free.
It is
facts is entitled to judgment as a matter of
insured,
expect
claimant,
an
or
in
other
the
56(c); Chadwick-BaRoss,
law. M.R. Civ. P.
process
interest,
protecting
of
his own
Constr., Inc.,
Inc. v. T. Buck
627 A.2d
protect
company
those of the [insurance]
(Me.1993).
534
as well
pay
and still
counsel for his labors
out
pocket,
pro-
of his own
or out of the
adopt
[¶ 4] Van Hall asks us to
the
remaining
ceeds of the
funds. And this is
“common fund” doctrinе in Maine.2 We do
precisely
by
the view taken
the over-
join
so
majority
jurisdictions
the
of
that
decisions,
whelming majority of
in that a
have considered the issue.3 The common
proportionate
expenses
share of fees and
provides
fund doctrine
that when а fund is
paid by
must
may
be
the insurer or
be
created to which
party
more than one
is
withheld from its share.
party
pay
entitled each
must
a share of the
expenses
fund,
in creating
incurred
the
in
Appleman
Appleman,
8A John A.
& Jean
cluding
4903.85,
reasonable
§
fees. See Fоre
Insurance Law and Practice
at
Waters,
(1981).4
most
Ins.
Mich.App.
Co.
125
335
Life
See,
2.Nothing
prejudice
e.g.,
Maloney,
after loss to
them.
Amica Mut. Ins. Co. v.
120
general
N.M.
903 P.2d
839
(1980)
ly
Attorneys
§
7 Am.Jur.2d
at
policy
B.
If we
Law 241
under this
(citing
recognize
cases that
the fund doctrine in
is
subrogated
exception
cases
as an
another,
made recovers
general
rule that an
cannot recover a
that
shall:
against
party
by
a third
benefitted
services
proceeds
1. Hold in trust for us the
client);
Bock, Annotation,
rendered
J.A.
recovery; and
Subrogation Rights
Pay
Insurer Under Medical
pay-
2. Reimburse us to the extent of our
Policy,
ments Provision Automobile Insurance
ment.
(1968 Supp.1996).
given subrogated to holder of interests that, another, that damages an recovers from that action has been commenced and action, join ... us to of our if holder to the shall the extent [reimburse the elects not the contract requested payment.” Equivalent be to holder insurance charge court will the ambiguous to as attorney provisions for of been held be reasonable fees the service have insured, in the issue the collecting subrogated its Id. at “whether interest.” to duty a trustee performance 658. York that Hall never as [her] maintains Van payable to the provided acting recovery that she for the make a of funds notice request company, benefit of York nor that she is entitled to reimburse would attorney attorney expenses and join if York in the ment for fеes other fees did not necessarily against party. According reasonably to in mak action the third and incurred York, recovery.” a Mut. ing she therefore should not entitled to such State Farm be Clinton, disagree. Ins. Co. v. the benefit of the doctrine. We Auto. 267 Or. (1974). 645, agree P.2d 649 with Van requirement The in common [¶ 7] notice provision Hall that the at issue does contract necessary protect eases in fund is order to clearly question the the not whether address subrogated by giving the holder of a interest permitted prorated is to retain a insured join right the holder to to “the the action and its portion recovery of the cost of from obli represented by legal be its own counsel of subrogation under gation the contract’s choosing Farm Mut. it so elects.” State ambigui that clause. We therefore сonstrue Geline, Auto. Ins. 48 179 Co. v. Wis.2d hold ty against and the (1970). present N.W.2d In case 821 the to the is entitled reimbursement that insured early York had notice that Hall had Van in expenses incurred recov for its reasonable attorney pursuing recovery an hired and was ering subrogated interеst. the insurer’s in fact alleged from tortfeasor. York attorney we that Accordingly, to her hold [¶ 9] communicated Van and express any is in Maine joining its to avoid in common fund doctrine available desire attorney brought by insured action Van conclude in cases wherе an incurs Hall. We expenses judgment knowledge recovering that York’s Hall’s in actual of Van in recovery subrogated to intention from the tortfea- or settlement that benefits seek purposes to surer. The of the share sor was sufficient notice York for determinаtion attorney by the insur of the fund Particularized fees to be contributed common doctrine. trial be the discretion of the notice that Van Hall would to withhold er shall within seek Waters, Ins. required not in these cir- court. See Foremost Co. fees was Life Mich.App. 337 N.W.2d cumstances.5 ac- explicitly intervene Van Hall’s reject We also its letter refused to in York’s contention that By choosing attorney informing them to recover its Van tion. to Hall and settlement, as it had pursue subrogation interest from Van Hall's that it intended to its interest accоrding contributing every right of the independently to do to the terms it insulates from has no policy, York now claim that it Hall’s not exercise cannot fees. York did 17(a) contributing that pursuant bring responsibility the costs of right its to M.R. Civ. P. recovery. own name suit the tortfeasor its is: question I wisdom of our rewrit- ing an unambiguous contract between an in- Judgment vacated. Remanded to the Su- in a sured and an insurer situation in which perior Court proceedings for further consis- showing there was no either that Ms. Van opinion with the tent herein. Hall’s did not receive a reasonable fee for that his services or Ms. Van Hall RUDMAN, Judge, dissenting. way some less in settlement received I respectfully [¶ dissent. claim thought than she she would when she ambiguity 11] There is no the lan- made her claim for reimbursement for her guage of the policy insurance contract. The mediсal from bills and when she provides signed contingent agreement later with If policy Inc., Darbro, attorney. Theberge or whom Is it not another, made recovers that unjust deprive Mutual of York its contrac- person shall: tual reimbursement full? It based (i) proceeds hold in trust for us the of the premiums its expectation. on I would recovery; and affirm of the (ii) approval leave the form to pay- reimburse us to the extent our Superintendent
ment. Insurance and to the *5 Legislature to adopt “common fund” doc- added). (emphasis appears by trine as it to havе done its enact- An is a contract. ment of section 24-A 2910-A Title Co., Bonding Ouellette Maine & Cas. P.L.1997, Maine Revised Statutes. ch. (Me.1985) (“an A.2d pol (eff. Sept. legislative ac- contract”). is a icy Unambiguous contractual tion, effect, prospective gave insurers language interpreted according plain to its adjust premiums. chance to their commonly accepted meaning. Seashore Ctr., Performing Arts Inc. v. Town Old Beach, Orchard A.2d knowledge obligation
[¶ 13] With her repay, Ms. Van Hall claim for made medi- payments pursuant
cal
hеr
in-
automobile
She,
contract,
policy.
by
agreed
surance
had
to reimburse her
to the extent
insurer
of its
signed contingency agreement Thomas with the attorney whereby agreed pay she him Supreme Court of Maine. Judicial gross plus “25% the amount collected out- of-pockets prior is resolved matter Sept. Submitted on Briefs 1997. litigation.” paid the commencement of She Deсided Dec. 25% of she the amount received in settlement of her claim. She then ten- (the
dered to York Mutual amount her paid had to her less one-third of that amount). urges Ms. Van Hall the court to
adopt the “common fund” doctrine. VanMs. seeks to pay have York services rendered to enable her to obligation fulfill contractual to York. She posits “unjust.” that to do would be otherwise