Walentine, O'Toole v. Midwest Neurosurgery

80 	285 NEBRASKA REPORTS
Walentine, O’tOOle, Mc Q uillan & GOrdOn, l.l.P.,
aPPellant, v. M idWest neurOsurGery, P.c., aPPellee.
825 N.W.2d 425
Filed January 18, 2013. 	No. S-12-377.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Attorney Fees: Equity. The common fund doctrine provides that an attorney
who renders services in recovering or preserving a fund, in which a number of
persons are interested, may in equity be allowed his compensation out of the
whole fund, only where his services are rendered on behalf of, and are a benefit
to, the common fund.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
K iMberly M iller PanKOnin, Judge. Affirmed.
Richard C. Gordon and Betty L. Egan, of Walentine, O’Toole,
McQuillan & Gordon, L.L.P., for appellant.
Richard D. Vroman and Brenda K. Smith, of Koley Jessen,
P.C., L.L.O., for appellee.
H eavican, c.J., WriGHt, cOnnOlly, stePHan, MccOrMacK,
and cassel, JJ.
H eavican, c.J.
INTRODUCTION
The law firm of Walentine, O’Toole, McQuillan & Gordon,
L.L.P. (Walentine), filed a complaint seeking attorney fees
from Midwest Neurosurgery, P.C. (Midwest), under the com-
mon fund doctrine. Midwest filed a motion to dismiss, which
was granted. Walentine appeals.
FACTUAL BACKGROUND
Walentine represented Alan Thompson in a workers’ com-
pensation action against Thompson’s employer. Following a
trial, Thompson was awarded compensation, including medical
expenses incurred by Thompson with Midwest, in the amount
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

WALENTINE, O’TOOLE v. MIDWEST NEUROSURGERY 	81
Cite as 285 Neb. 80
of $33,011.20. Thompson’s employer paid the sums owed to
Midwest per the award.
Subsequently, Walentine filed a complaint against Midwest
asserting that under the common fund doctrine, Walentine
was entitled to an attorney fee from Midwest. Midwest filed
a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(2),
asserting that Walentine’s complaint was barred by Neb. Rev.
Stat. § 48-125 (Cum. Supp. 2012). Following a hearing, the
district 	court 	dismissed 	Walentine’s 	complaint. 	Walentine
appeals. We affirm.
ASSIGNMENTS OF ERROR
On appeal, Walentine assigns, restated and consolidated, that
the district court erred in (1) applying § 48-125, a statute deal-
ing with the Workers’ Compensation Court, to an action in the
district court, and (2) finding that Walentine was not permit-
ted to recover attorney fees from Midwest under the common
fund doctrine.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.1 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion.2
ANALYSIS
On appeal, Walentine argues generally that it was entitled to
attorney fees from Midwest under the common fund doctrine
and that § 48-125 has no application, because this was not an
action brought in the Workers’ Compensation Court.
[3] The common fund doctrine provides:
“‘An attorney who renders services in recovering or pre-
serving a fund, in which a number of persons are inter-
ested, may in equity be allowed his compensation out of
1 See Central Neb. Pub. Power v. Jeffrey Lake Dev., 282 Neb. 762, 810
N.W.2d 144 (2011).
2 See id.

82 	285 NEBRASKA REPORTS
the whole fund, only where his services are rendered on
behalf of, and are a benefit to, the common fund.’”3
Walentine 	argues 	that 	this 	doctrine 	is 	applicable 	in 	this
case because it was through its representation of Thompson
before the Workers’ Compensation Court that an award was
entered allowing Midwest recovery on the amounts owed
by Thompson.
Midwest, however, argues that the common fund doctrine
does not provide relief to Walentine in this situation, and
instead contends that Walentine is not entitled to fees as a
result of § 48-125(2)(a). That subsection provides:
Whenever the employer refuses payment of compensa-
tion or medical payments subject to section 48-120, or
when the employer neglects to pay compensation for
thirty days after injury or neglects to pay medical pay-
ments subject to such section after thirty days’ notice has
been given of the obligation for medical payments, and
proceedings are held before the compensation court, a
reasonable attorney’s fee shall be allowed the employee
by the compensation court in all cases when the employee
receives an award. Attorney’s fees allowed shall not be
deducted from the amounts ordered to be paid for medi-
cal services nor shall attorney’s fees be charged to the
medical providers.
(Emphasis supplied.)
We recognize that § 48-125(2)(a) is part of the Nebraska
Workers’ Compensation Act and that Walentine brought this
action in district court. But the last sentence of § 48-125(2)(a)
plainly states that attorney fees may not be deducted from any
amount ordered to be paid for medical services and that medi-
cal providers shall not be charged for attorney fees. Walentine
cannot do an end run around this prohibition simply by instead
filing its action for attorney fees in district court.
Nor 	is 	this 	an 	unfair 	result. 	Under 	the 	first 	part 	of
§ 48-125(2)(a), “a reasonable attorney’s fee shall be allowed
the employee by the compensation court.” Thus, Walentine
3 Kindred v. City of Omaha Emp. Ret. Sys., 252 Neb. 658, 662, 564 N.W.2d
592, 595 (1997).

WALENTINE, O’TOOLE v. MIDWEST NEUROSURGERY 	83
Cite as 285 Neb. 80
would be entitled to recover from the injured employee’s
employer an attorney fee for work done on the injured employ-
ee’s behalf.
Furthermore, policy considerations support this conclusion.
If one could recover fees from medical providers in dis-
trict court, such could provide an incentive for attorneys to
file for fees there instead of asking for fees in the Workers’
Compensation Court. This would be of particular concern in
situations that, for whatever reason, counsel felt the Workers’
Compensation Court might not be receptive to its claim,
but also where the Workers’ Compensation Court declined
to award fees or did not award the amount of fees sought by
counsel. There is also a concern, as expressed by Midwest, that
medical providers would decline to provide services to work-
ers’ compensation claimants for fear that the provider would
later be hauled into district court by claimant’s counsel’s
demand for fees.
In addition to arguing that § 48-125 is simply inapplicable
in its district court action because it is a workers’ compensa-
tion statute, Walentine also contends that in Kaiman v. Mercy
Midlands Medical & Dental Plan,4 the Nebraska Court of
Appeals concluded that the common fund doctrine was appli-
cable to situations such as the one presented here and that the
district court erred in finding otherwise.
In Kaiman, the attorney of an injured employee brought an
action in district court for the recovery of attorney fees from
his client’s health care insurer. The Court of Appeals first noted
that there was no reason for the common fund doctrine to not
apply. The Court of Appeals then held that because the insurer
could not have been made a party in the underlying action in
order to obtain fee sharing, fundamental due process required
that the insurer, or any other potential fee sharer, should have
a forum in which to be heard on whether it should be required
to share in the payment of attorney fees. As such, the district
court action was permissible.
4 Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491
N.W.2d 356 (1992).

84 	285 NEBRASKA REPORTS
We agree with Walentine that the district court erred inso-
far as it concluded that Kaiman was inapplicable because it
was decided prior to the enactment of the last sentence of
§ 48-125, which the district court stated occurred in 2011.
In fact, Kaiman was decided on May 19, 1992. And con-
trary to the district court’s decision, the relevant language of
§ 48-125 was enacted that same year.5 But we nevertheless
find Kaiman inapplicable.
While the relevant language of § 48-125 was enacted
in 1992, it was not passed with an emergency clause6 and
thus was not effective at the time of the Kaiman decision.7
And there is no indication from the Kaiman opinion that
the Court of Appeals was aware of this new language when
it issued its decision in Kaiman. To the extent that Kaiman
might suggest that the common fund doctrine is available to
attorneys’ seeking fees from parties providing “medical serv-
ices” or to “medical providers” as envisioned by § 48-125, it
is disapproved.
We conclude that the plain language of the last sentence of
§ 48-125(2)(a) prohibits the charging of attorney fees against
medical providers in Workers’ Compensation Court. We decline
to apply the common fund doctrine to allow Walentine a fee
from Midwest from the district court when it would not be
entitled to such a fee from the Workers’ Compensation Court.
We therefore affirm the decision of the district court dismissing
Walentine’s complaint.
CONCLUSION
The decision of the district court is affirmed.
affirMed.
M iller-lerMan, J., not participating.
5 1992 Neb. Laws, L.B. 360.
6 Id.
7 See, Neb. Const. art. III, § 27; Legislative Journal, 92d Leg., 2d Sess.
2242-43 (Apr. 14, 1992).