Appeal from judgment of County Court of Allegheny County, No. A 790 of 1965, in case of Philip Caldwell v. The Keystone Insurance Company.
Joseph I. Lewis, for appellant.
G. Gaca, with him John R. Walters, Jr., and Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Jacobs, J.
[ 212 Pa. Super. Page 380]
In this case, the plaintiff was insured under a standard Family Automobile Policy issued by the defendant.
[ 212 Pa. Super. Page 381]
On June 26, 1964, plaintiff's automobile was damaged by a third party. Plaintiff promptly notified the defendant of the loss and had the automobile, a 1960 Corvair, repaired at a cost of $710.00. He then filed a claim with the defendant for $610.00 under the policy provision for collision loss minus $100.00 deductible. The defendant, being of the opinion that the cost of repair exceeded the value of the automobile, offered to pay plaintiff the amount of his claim provided that plaintiff surrender title to the repaired automobile.*fn1
Plaintiff's attorney then notified the defendant that if it did not settle on his terms he would sue the third party tortfeasor and requested the defendant to let him know if it desired him to represent the insurer in a lawsuit against the third party tortfeasor. Defendant did not reply to the offer of representation but did offer to pay $610.00 less a salvage bid of $610.00 from the tortfeasor.
Plaintiff thereupon sued the third party tortfeasor and was awarded a verdict of $710.00. He brings the instant suit to recover the sum of $244.00, which is that part of the attorney's fee incurred in collecting the $610.00 from the tortfeasor.
Plaintiff argues that he created a common fund for the benefit of both plaintiff and defendant and that it is equitable that defendant pay its proportionate cost of procuring that fund. In support of that theory he cites Furia v. Philadelphia, 180 Pa. Superior Ct. 50, 118 A.2d 236 (1955), a case where a common fund was created through the efforts of the insured's attorney. That case is an exception to the general rule that
[ 212 Pa. Super. Page 382]
counsel fees are not recoverable absent a statute or agreement, neither of which is present here. See Greek Catholic Union v. Russin, 346 Pa. 236, 29 A.2d 489 (1943); ...