California Supreme Court Decides Fee Are Subject to Separate Equitable Apportionment in a Pro Rata Sharing Manner.
Here is one for personal injury/insurance defense cases in boutique first party, no-fault medical payment (med-pay) insurance payment cases. This may narrow our readers who have interest in this post, but here you go anyway.
In 21st Century Ins. Co. v. Superior Court (Quintana), Case No. S154790 (Cal. Aug. 24, 2009) (certified for publication), our state supreme court held that liability for attorney’s fees is not included under the make-whole rule, which requires that an insured be made whole by third party recovery before having to reimburse the insurance company. However, it went on to hold that fees needed to be equitably apportioned under a pro rata apportionment rule as between insured and insurer. This holding was expressly limited to auto insurance med-pay cases versus other liabilities policies or homeowner’s property insurance.