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02/10/95 ALFA MUTUAL INSURANCE COMPANY v. BARBARA

February 10, 1995

ALFA MUTUAL INSURANCE COMPANY
v.
BARBARA HEAD, ET AL.



Appeal from Elmore Circuit Court. (CV-93-347-B). John B. Bush, Trial Judge.

Released for Publication May 27, 1995. As Corrected December 8, 1995.

Shores, Almon, Kennedy, Ingram, and Cook, JJ., concur. Houston, J., Dissents.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

In November 1993, Kent Edgar Davis was operating a motor vehicle in Elmore County, Alabama. His vehicle collided with a motor vehicle driven by Barbara Head and occupied by Lauren Head, a minor child.

At the time of the accident, Barbara Head and Lauren Head were insured under a policy of insurance issued by Alfa Mutual Insurance Company ("Alfa"). Davis was insured by Hartford Insurance Company ("Hartford").

In December 1993, Barbara Head and Lauren Head sued Davis, alleging that he had caused the accident. In their complaint, they sought, among other things, damages for bodily injuries, pain and suffering, loss of employment, and property damage. Alfa moved to intervene, alleging that, as a result of the damage done to Barbara Head's vehicle it had paid her $6,948.56 in collision damage benefits and that, because it had paid Barbara Head those insurance benefits, it was subrogated to any recovery awarded to Barbara Head and Lauren Head in their action against Davis.

The trial court denied Alfa's motion to intervene, holding that Alfa had a contractual right to subrogation, but that the subrogation right did not exist until the plaintiffs' claims were tried and damages were set by a jury or a settlement was reached between the plaintiffs and the defendant. Alfa appeals from the order denying intervention. We affirm.

During the course of the litigation, counsel for the plaintiffs indicated to Alfa that he would deduct a pro rata share of attorney fees and costs of litigation from the amounts to be paid to Alfa for reimbursement pursuant to its subrogation interest (when it is determined that Barbara Head has been made whole). Counsel for the Heads claims that he is entitled to the attorney fees and costs of litigation under the "common fund" doctrine. Alfa denied that counsel for the Heads was entitled to any portion of the subrogation amount. The trial court made no ruling on this issue.

Alfa raises two issues: First, whether Alfa's right of subrogation made it error for the trial court to deny its motion to intervene, and second, whether the "common fund" doctrine requires Alfa to pay a pro rata share of the plaintiffs' attorney fees and the costs of the litigation.

INTERVENTION

Alfa moved to intervene under A.R.Civ.P. 24(a)(2) or 24(b)(2). Rule 24(a)(2) provides for intervention of right:

"Upon timely application, anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the Disposition of the action may as a practical matter impair or impede his ability to protect that ...


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