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AMICA MUT. INS. CO. v. MALONEY

Nos. 21873, 21959.

903 P.2d 834 (1995)

120 N.M. 523

AMICA MUTUAL INSURANCE COMPANY, Plaintiff-Appellant and Cross-Appellee, v. Margaretta Coulter MALONEY, Defendant-Appellee and Cross-Appellant. Roy SILVA and Betty Silva, individually and as parents of Roxanne Silva, Plaintiffs-Appellants, v. FARMERS INSURANCE COMPANY OF ARIZONA, Defendant-Appellee.

Supreme Court of New Mexico.

September 18, 1995.

Attorney(s) appearing for the Case

Gallagher, Casados & Mann, P.C., Doris W. Eng, Albuquerque, for Appellant and Cross-Appellee.

John R. Tiwald, Albuquerque, for Appellee and Cross-Appellant.

Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, Steven L. Vogel, Albuquerque, for Appellants.

Pelton & O'Brien, P.A., Daniel J. O'Brien, James E. Lieuwen, Albuquerque, for Appellee.

Butt, Thornton & Baehr, P.C., John A. Klecan, Albuquerque, for amicus curiae N.M. Defense Lawyers.

William H. Carpenter, Michael B. Browde, Michael G. Elia, Albuquerque, for amicus curiae N.M. Trial Lawyers.

OPINION

FROST, Justice.

1. Amica Mutual Insurance Co. v. Maloney and Silva v. Farmers Insurance Co. both present a common question on appeal: When an insurer has a subrogated interest in a portion of the insured's settlement, is the insurer required to pay a proportionate share of the insured's attorney's fees incurred in settling the claim? In both cases the insureds argue that the settlement created a common fund which included the...

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