Accordingly, we conclude that application of the common-fund doctrine, under the facts of this case, was warranted and that State Farm was required to pay a pro rata share of Mitchell's attorney fees based on the $5,000 medical-expenses payment. See O'Donnell v. Johnson, 209 P.3d 128, 135 (Alaska 2009) (holding that the common-fund doctrine did not apply when the “insurer [chose] not to rely on the services of plaintiff's counsel and provide[d] notice”); Osborne v. State Farm Mut. Auto. Ins. Co., 923 P.2d 304, 305–06 (Colo.Ct.App.1996) (refusing to apply common-fund doctrine because insured did not give insurer opportunity to participate in settlement negotiations; insurer expressed intent to pursue its claim independently in arbitration proceedings; and insurer expressed no intention to share in funds generated by insured's suit); Cockman v. State Farm Auto. Ins. Co., 313 Ark. 340, 343, 854 S.W.2d 343, 345 (1993) (stating that the common-fund doctrine did not apply because an arbitration agreement required the insurers to forgo litigation, evidence clearly demonstrated that the insurer had not refused to pursue its independent subrogation claim, and the insured warranted in subrogation receipt that she would make no settlement or release regarding subrogated rights without the insurer's written consent); Courtney v. Birdsong, 246 Ark. 162, 169, 437 S.W.2d 238, 242 (1969) (finding no equitable reason the insurer should pay an attorney fee because the insurer “did not agree to pay any part of [the insured's] attorney
The cases cited by Allstate in support of its position are distinguishable. See CNA Ins. Cos. v. Johnson Galleries, 639 So.2d 1355, 1359 (Ala. 1995) (refusing to apply common fund doctrine because attorneys for insured "actively and consistently" sought to prevent subrogee from obtaining any part of settlement); Cockman v. State Farm Mut. Auto. Ins. Co., 854 S.W.2d 343, 345 (Ark. 1993) (refusing to apply common fund doctrine because arbitration agreement required insurers to forego litigation, evidence clearly demonstrated that insurer had not refused to pursue its independent subrogation claim, and insured warranted in subrogation receipt that she would make no settlement or release regarding subrogated rights without insurer's written consent); Osborne v. State Farm Mut. Auto. Ins. Co., 923 P.2d 304, 305-06 (Colo.Ct.App. 1996) (refusing to apply common fund doctrine because insured did not give insurer opportunity to participate in settlement negotiations, insurer expressed intent to pursue its claim independently in arbitration proceedings, and insurer expressed no intention to share in funds generated by insured's suit); Dunn, 426 N.E.2d at 318 (refusing to apply common fund doctrine because no "fund" was created where tortfeasor's insurer admitted liability and agreed to pay subrogation claim irrespective of insured's personal injury lawsuit, tortfeasor's insurer began making payments on subrogation claim before insured sued tortfeasor, settlement negotiations did not concern subrogated interests, and record demonstrated that subrogee expended substantial energy in pursuing its claim directly from tortfeasor's insurer); Williams, 541 S.W.2d at 590-91 (refusing to apply common fund doctrine because there was no express, implied, or quasi contractual relation between attorney and insurer, and thus attorney
We note that the court of appeals has specifically limited the application of the common fund doctrine to cases in which a party actually had a right to intervene in the litigation producing a fund and elected not to do so on an active basis. See Osborne v. State Farm Mut. Auto. Ins. Co., 923 P.2d 304, 305-06 (Colo.App. 1996) (holding that common fund doctrine was not applicable where insurer expressed intent to pursue claim independently of plaintiff's litigation); Schenck v. Minolta Office Sys., Inc., 873 P.2d 18, 19 (Colo.App. 1993) (holding that state, which received an award as a result of litigation, was not required to contribute share of attorney fees incurred in litigation because it did not have a legal interest in award until after judgment and did not have an opportunity to intervene).
The gas company in the alternative argues that, if interest accrues from the time of the fire, it can accrue only until the owner sold the property. However, because the argument was raised for the first time in the reply brief, we do not address it in this appeal, see Osborne v. State Farm Mutual Automobile Insurance Co., 923 P.2d 304 (Colo.App. 1996), and we express no opinion as to whether it may be asserted in the trial court on remand. IV.
Hence, under the circumstances appearing in this record, no common fund was created. See Osborne v. State Farm Mutual Automobile Insurance Co., 923 P.2d 304 (Colo.App. 1996). IV.