
No. 04-98-00753-CV

Martiniano VALLE,
Appellant

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellee

From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-15936
Honorable James F. Clawson, Judge Presiding

Opinion by:	Paul W. Green, Justice


Sitting:	Catherine Stone, Justice

		Paul W. Green, Justice

		Karen Angelini, Justice


Delivered and Filed:  August 25, 1999


AFFIRMED


	Martiniano Valle sued his insurer, State Farm Mutual Automobile Insurance
Company, to recover attorney's fees for the collection of State Farm's subrograted interest
in an uncontested third-party claim. State Farm obtained summary judgment on the ground
that Valle was not entitled to recover attorney's fees under the "common fund" doctrine.
Finding no error, we affirm.

Background
	In September 1996, Valle was injured in an automobile collision, and he received
$2,500 in medical payments from his own insurer, State Farm. When Valle settled his third-party case for $9,000, he asked State Farm to pay a portion of the attorney's fees from its
subrogated interest. State Farm refused, and Valle sued under the common fund doctrine.
The trial court granted State Farm's motion for summary judgment, essentially finding that
the common fund doctrine did not apply.

	As summary-judgment evidence, State Farm proffered the affidavit of Stephen
Klenke, its claims adjuster. On October 7, 1996, Klenke sent a letter to Valle's attorney,
Richard Karam, advising him that State Farm would pursue a subrogation claim against the
third party. Klenke also sent a letter to Wendy Hartley, the third-party adjuster, that
requested payment of the subrogated interest and indicated State Farm's intent to pursue its
own claim:

		State Farm hereby places you on formal notice that it represents
its own interest in advancing this claim and does not retain the
services of an attorney who may represent our insured in a
bodily injury claim to be asserted against you or your insured.
This Company expressly disavows any authority apparent or
otherwise, from such counsel to conduct negotiations on its
behalf.


Finally, by letter dated March 12, 1997, State Farm sent Hartley the medical bills provided
by Karam and again requested a check made payable to State Farm.

	According to Hartley, she first learned about the case from Klenke, who called her
on October 11, 1996. On October 30, she received a phone call from Karam, but they did
not discuss liability. Because her insured was clearly liable, Hartley said she needed only
medical bills and records. Hartley concluded, "Karam did nothing to further the interest of
[State Farm] in this claim. Mr. Karam's actions in no way compelled me to pay [State
Farm's] claim for subrogation."

	In rebuttal, Valle proffered Karam's affidavit. Karam acknowledged receiving
Klenke's October 7 letter indicating State Farm would pursue its subrogation claim. But
Karam noted that State Farm did not assist the negotiations, collect pertinent documents, or
do anything "to further the interest of its subrogation claim." As evidence that State Farm
relied on his efforts, Karam quoted the March 12 letter from State Farm to Hartley: "After
your negotiations with Mr[.] Valle's attorney have concluded, please issue a separate draft
payable to State Farm Insurance in this amount [$2,500] . . . ."

Discussion
	Valle contends the trial court erred in granting State Farm's motion for summary
judgment. We disagree.

	To prevail on summary judgment, State Farm must show that there are no genuine
issues of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ.
P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
In deciding whether a disputed fact issue precludes summary judgment, we take evidence
favorable to Valle as true and indulge every reasonable inference in his favor. See Nixon,
690 S.W.2d at 548-49. In reviewing this summary judgment de novo, we must decide
whether Valle, at his own expense, created a common fund that benefitted State Farm. See
Knebel v. Capital Nat'l Bank, 518 S.W.2d 795, 799-801 (Tex. 1974); Lancer Corp. v.
Murillo, 909 S.W.2d 122, 126 (Tex. App.--San Antonio 1995, no writ).

	Even when viewed in the light most favorable to Valle, the evidence shows that State
Farm pursued its own interest and did not rely on the efforts of Valle. Because liability and
the amount of State Farm's interest were uncontested, Valle's efforts did not create a fund
that benefitted State Farm. Thus, as a matter of law, the common fund doctrine is not
applicable in this case. Accordingly, the trial court did not err in granting State Farm's
motion for summary judgment.

Conclusion
	We affirm the trial court's judgment.


							PAUL W. GREEN,

							JUSTICE


PUBLISH


