What Determines Whether Common-Fund Doctrine Is Applicable to An Employee Retirement Plan ?

In Bishop v. Burgard, 198 Ill. 2d 495, 764 N.E.2d 24, 261 Ill. Dec. 733 (2002), the plaintiff had incurred medical expenses as a result of injuries sustained in an automobile accident. The plaintiff was a participant in her employer's Employee Retirement Income Security Act (ERISA) plan (the plan), which paid the plaintiff's medical expenses. The plaintiff brought suit against the tortfeasor who had injured her, and the suit was settled in favor of the plaintiff. The plaintiff filed a motion asking that the court apply the common-fund doctrine to reduce the amount claimed by the plan from the settlement fund, reflecting a proportionate reduction for attorney fees and costs incurred in the personal injury action for the plan's share of the recovery. The circuit court granted the motion, and the appellate court reversed. The supreme court reversed the judgment of the appellate court and affirmed that of the circuit court, holding that the common-fund doctrine did apply to the plan. While the relationship between the plaintiff and the plan was one of subrogor/subrogee, and not one of debtor/creditor, the supreme court used the following broad language: "But for the plaintiff's action, and the efforts of her attorney, there would have been no fund from which the plan could have obtained reimbursement. For purposes of applying the common fund doctrine, it is irrelevant that the party who benefits from a lawyer's services has a right to compensation, be it an undifferentiated right of reimbursement or subrogation, as is asserted here, or a right to compensation under some other theory. Obviously, everyone who brings a legal action is asserting some claim of right. However, a mere right may amount to nothing more than a possibility unless it is properly asserted. That is the point. The real question is whether the plan obtained the benefit of a lawsuit without contributing to its costs. If so, it was unjustly enriched for purposes of applying the common fund doctrine. 'If the costs of litigation are not spread to the beneficiaries of the fund, they will be unjustly enriched by the attorney's efforts.' Bishop, 198 Ill. 2d at 510.