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Green v. Innovative Recovery Services7/28/2000
at further, where a recipient has retained an attorney, the attorney shall not be considered liable unless the attorney has notice from the state of the state's claim of subrogation prior to disbursement of the funds to the recipient.
In the present case, Ms. Green engaged Mr. Whitaker to prosecute her personal injury lawsuit, as was her right. He filed the complaint on her behalf, without first notifying TennCare or IRSI. When it learned of the lawsuit, the appellee gave Mr. Whitaker timely notification that the State's subrogation interest was protected by IRSI, and that it did not desire his representation or that of his firm.
The appellant argues that she is entitled to recover one-third of the medical expenses paid by TennCare because IRSI did not intervene in the case against Mr. Shear, and it did not assist Mr. Whitaker in "investigating, evaluating, prosecuting, negotiating or settling plaintiff's claim."
The right of an attorney to share in a subrogation where the subrogee did not ask for the attorney's assistance in protecting its interest was discussed at length in the case of Travelers Insurance Co. v. Williams, 541 S.W.2d 587 (Tenn. 1976). While noting that other jurisdictions have adopted different approaches, our Supreme Court held that each case must be decided by applying general fundamental principles of contract law to its particular facts, and that,
". . . whether or not an attorney is entitled to collect from the insurer a fee with respect to a subrogation claim depends upon whether an express or implied contract or quasi contractual relationship exists between them." 541 S.W.2d at 590.
The Williams Court examined the facts of that case, and found there to be no express or implied contract between the insurer and the insured's attorney. The court also found there to be no unjust enrichment, and therefore no quasi contractual relationship between them, despite the fact that the insured's attorney had secured the plaintiff insurance company's subrogation claim by reaching a settlement with the tortfeasor's insurance company. The Court reasoned that
". . . one is not unjustly enriched by a benefit "forced upon" him as the result of services voluntarily and officiously performed by another who has been expressly informed by the alleged promisor that his services are not desired. 541 S.W.2d at 590.
Like Mr. Williams' attorney, Mr. Whitaker had been expressly informed that the insuror did not desire his services, and that it was prepared to protect its own subrogation interest. Under the circumstances, there was no contractual relationship between Mr. Whitaker and TennCare that would entitle him to collect the attorney fees he requests.
III.
The order of the trial court is affirmed. Remand this cause to the Chancery Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Faye L. Green.
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