Clark v. Progressive Insurance Corp., No. S0480-03 CnC (Norton, J., Aug.
4, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. S0480-03 CnC



CLARK

v.

PROGRESSIVE INSURANCE CO.



                                 ENTRY

       Following trial and judgment in which she was found to owe
Defendant $9,885, Plaintiff seeks to amend judgment by reducing the
amount by the common fund doctrine. Defendant opposes this motion and
seeks court costs for fees and deposition costs.

      The common fund doctrine is an equitable principle established as a
way of spreading costs for a party who prevails through litigation or
prolonged settlement in establishing a fund that is intended to benefit others
as well. Daniels v. Vt. Ctr. for Crime Victims Servs., 173 Vt. 521, 522
(2001) (mem.). It allows the litigating party to subtract a portion of its
attorney’s fees and costs from the amount to which the other parties are
entitled. Id. The purpose of this is clear; parties who benefit from a
judgment but have not contributed to the costs of recovery or participated in
the litigation should not get the windfall of a full share while the party that
litigated bears all of the expense. Guiel v. Allstate Ins., Co., 170 Vt. 464,
469–70 (2000) (emphasizing that the doctrine is only appropriate in certain
equitable situations).

        In this case, Plaintiff claimed extensive damages. She was
reimbursed for some of her medical expenses by her insurer, Defendant,
and quickly obtained a settlement from the tortfeasor’s insurer. She then
sought to recover further from Defendant, which led to the immediate case.
At trial, the jury found that Plaintiff’s damages did not exceed the
tortfeasor’s insurance policy and were, in fact, much less than her
settlement. Given those findings, the court finds it inequitable to reduce
Defendant’s recovery through the common fund doctrine. First, Plaintiff
was more than adequately compensated for any expense she incurred in
obtaining a quick settlement that outstripped her damages. Second,
Defendant has now had to expend its own attorney’s fees and costs to
recover what it was eligible for under its insurance contract. Another
reduction would merely punish Defendant.

       Next, Plaintiff seeks to deny Defendant’s motion for costs. V.R.C.P.
54. Plaintiff bases her motion on the fact that she has also incurred costs.
Under Rule 54, the court has discretion to assign or deny costs associated
with taking depositions. As these costs are minimal and not particularly
onerous in light of its success, Defendant’s motion for deposition costs is
denied. The $50 for court costs is, however, granted.

      Based on the foregoing, Plaintiff’s motion to amend is Denied.
Defendant’s motion for costs is Granted in part and Denied in part.

      Dated at Burlington, Vermont________________, 2005.




                                        ____________________________
                                               Richard W. Norton, Judge
