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Taking On the "Common Fund" Doctrine

By Gary Wickert

Regardless of which area of insurance you practice in - workers' compensation, property and casualty, auto, etc. - your subrogation efforts have no doubt been hampered and have come face to face with the common fund doctrine. You aggressively investigate subrogation, place potential third parties on notice, and negotiate with third party carriers regarding recovery of your subrogation lien, only to find a plaintiff's lawyer holding out his hand and demanding one-third or more of your subrogation lien as an attorney's fee. The authority he cites for his right to take a large portion of your subrogation dollar is known as the "common fund doctrine."

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