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Martino v. Dyer11/22/2000
l class members, including those represented by other counsel. See Hobson, 801 S.W.2d at 812. Damages recovered in a class action on behalf of a class of plaintiffs unquestionably constitute a "common fund." Tennessee courts have also applied the common fund doctrine to damages in a wrongful death action where more than one party has a statutorily-created claim. See Wheeler v. Burley, No. 01A01-9701- CV-00006, 1997 WL 528801 at *4-*5 (Tenn. Ct. App. Aug. 27, 1997) (perm. app. denied Apr. 13, 1998); In re Estate of Stout, No. 01A01-9308-CH- 00360, 1994 WL 287765 at *4 (Tenn. Ct. App. June 29, 1994) (no Tenn. R. App. P. 11 application filed); PST Vans, Inc. v. Reed, 1999 WL 1273517 at *5; Spivey v. Anderson, No. 02A01-9704-CV-00075, 1997 WL 563199 at * 5 (Tenn. Ct. App. Sept. 9, 1997) (no Tenn. R. App. P. 11 application filed).
We are unaware of any other situation in which Tennessee courts have applied the common fund doctrine. It is axiomatic that the "common fund doctrine" can be applied only where a "common fund" exists. See Tennessee Small Schools Sys. v. McWherter, No. 01A01-9211-CH-00447, 1993 WL 295006 at *6 (Tenn. Ct. App. Aug. 4, 1993) (perm. app. denied Mar. 7, 1994) (the "common fund" doctrine is inapplicable where there is no judicially created common fund). There is no such fund in this situation because the hospital has no claim against a third party who may have caused the injuries treated by the hospital. Its claim is against its debtor.
The hospital lien statutes make it clear that the filing of a lien does not give a hospital a cause of action against an alleged tortfeasor:
The provisions of this chapter shall not be construed as giving any hospital an independent right of action to determine liability for injuries sustained by any person covered herein nor shall any settlement or compromise of a claim entered into on behalf of such person require the approval of the hospital. Tenn. Code Ann. ยง 29-22-107(a).
The common fund doctrine is not applicable to this case, primarily because SRMC and Ms. Martino do not have equal rights to share in the settlement funds. SRMC is a creditor who may collect from Ms. Martino regardless of the source of the funds she uses to pay her hospital bill. The settlement itself belongs to Ms. Martino. The hospital has no cause of action against Mr. Dyer. The proceeds of the settlement are not a "common fund" because the hospital and Ms. Martino are not entitled to share in the settlement in common.
V.
Accordingly, we reverse the order granting Mr. Dalton's request for a pro rata share of attorney fees from Sumner Regional Medical Center's hospital lien and remand the case to the trial court for such further proceedings as may be required.
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