Matsyuk v. State Farm Fire & Casualty Co.

¶39 (dissenting) — Under the “common fund” equitable basis for an award of attorney fees, attorney fees may be awarded when a litigant preserves or creates a common fund for the benefit of the litigant and others. See Mahler v. Szucs, 135 Wn.2d 398, 426-27, 957 P.2d 632 (1998) (citing Coveil v. City of Seattle, 127 Wn.2d 874, 891, 905 P.2d 324 (1995)). The common fund theory has been applied to require a PIP (personal injury protection) insurer to pay pro rata legal costs incurred by an injured insured to obtain a recovery from the responsible tortfeasor or the tortfeasor’s insurer. The…