Court of Appeals: Div. I: No Common Fund Created Where Injured Person Recovers as Passenger from Both Tortfeasor’s PIP and Liability Policy
Olga Matsyuk was injured while riding as a passenger in a car. As a passenger in the car, she was a third party beneficiary under the driver’s Personal Injury Proptection (PIP) policy. She also recovered from the driver’s liability policy. She sought attorney fees for creating a “common fund.” This was premised on the Supreme Court’s decisions in Mahler v. Szucs, Winters v. State Farm Mutual Automobile Insurance Co. and Hamm v. State Farm Mutual Automobile Insurance Co. The Court of Appeals held that no “common fund” was created in this case and, therefore, there was no equitable rationale to award attorney fees.
The Court of Appeals claimed to have adhered to its earlier decision in Young v. Teti. That case was decided before Winters and Hamm. Most assumed it was no longer good law after Winters and Hamm. The Court of Appeals noted that it had not been expressly overruled by Winters and Hamm. Look for the Supreme Court to grant review in this case.