With subrogation, an insurer acquires the right to assert the actions and rights of the insured against the liable tortfeasor. ... With reimbursement, the insurer has only a right of repayment against the insured."); Perreira v. Rediger , 169 N.J. 399, 778 A.2d 429, 439 (2001) (explaining that New Jersey's Commissioner of Insurance, having declined for years to approve "subrogation and reimbursement provisions" in certain health insurance policies, finally allowed their inclusion in 1993); Principal Mut. Life Ins. Co. v. Baron , 964 F. Supp. 1221, 1222-25 (N.D. Ill. 1997) (permitting insurer to seek compensation from the insured for medical expenses it paid pursuant to reimbursement clause); Marshall v. Emps. Health Ins. Co. , 927 F. Supp. 1068, 1075 (M.D. Tenn. 1996) (permitting insurer to recover under reimbursement clause after finding insurer was precluded from exercising right of subrogation), aff'd , 1997 WL 809997 (6th Cir. Dec. 30, 1997) ; see also 16 Couch et al ., supra note 10, § 226:3 (observing that "insurers have in past decades become increasingly concerned with their ability to recover back their payments directly from their own insureds, by means of ‘reimbursement’ ").

securing or preserving the fund); Amica Mut. Ins. Co. v. Maloney, 120 N.M. 523, 529, 903 P.2d 834, 840 (1995) (providing that the automobile insurers' actions in sending standard letters to the tortfeasors' insurer stating that they had subrogation interest in their insureds' recoveries against the tortfeasors and asking for repayment after settlement did not amount to “active participation” in insureds' settlements with tortfeasors' insurer, for purposes of “active participation” exception to common-fund doctrine); and Castellari v. Partners Health Plan of Colo., Inc., 860 P.2d 593, 595 (Colo.Ct.App.1993) (holding that the insurer that had a subrogated claim for medical benefits was required to pay a proportionate share of attorney fees and costs incurred in the litigation producing a recovery from which the claim was paid where its involvement in litigation was “limited to filing a motion to intervene and obtaining a stipulation of the amount of its claim for subrogation”); see also Principal Mut. Life Ins. Co. v. Baron, 964 F.Supp. 1221, 1224 (N.D.Ill.1997) (applying Illinois law and finding that the insured could charge attorney fees against a fund recovered from which the subrogated insurer benefited because, even though the insurer hired attorneys, they “were concerned merely with protecting their client's right to reimbursement, not creating the fund”). Cf. Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman v. State Farm Ins. Co., 100 Ill.App.3d 93, 97, 426 N.E.2d 315, 318, 55 Ill.Dec. 340, 343 (1981) (finding active participation when the insurance carrier rejected the plaintiff's representation offer and negotiated with the third-party's carrier).

The mere retention of an attorney will not necessarily defeat a common-fund award where counsel did nothing to procure the award, and merely directed his or her efforts towards protect the party's interest in the fund. See, e.g., Draper v. Aceto, 26 Cal.4th 1086, 113 Cal.Rptr.2d 61, 33 P.3d 479, 484 (2007) (noting that mere retention of attorney is insufficient to defeat common-fund recovery, critical question is whether party contributing towards securing or preserving the fund): Principal Mut. Life Ins. Co. v. Baron, 964 F.Supp. 1221, 1224 (N.D.Ill. 1997) (applying Illinois law and finding that insured could charge attorneys' fees against fund recovered from which subrogated insurer benefitted because, even though insurer hired attorneys, they "were concerned merely with protecting their client's right to reimbursement, not creating the fund"); Blue Cross Blue Shield of Alabama v. Freeman, 447 So.2d 757, 759 (Ala.Civ.App. 1983) (concluding that because the "mere appearance as an intervenor by an insurer for the purpose of securing a conditional judgment for its subrogation claim against the amount recovered by its insured does not aid assist in the recovery of the common fund," such an appearance did not defeat a common-fund claim under the active-participation exception). The order denying any award to Ms. Peart is vacated and the case is remanded for further proceedings consistent with this opinion.

The policy behind the fund doctrine is to prevent subrogees from "freeloading." Principal Mutual Life Insurance Co. v. Baron, 964 F. Supp. 1221, 1224 (N.D.Ill. 1997). "If the costs of litigation are not spread to the beneficiaries of the fund, they will be unjustly enriched by the attorney's efforts."

An insurance company's limited appearance to protect its subrogation interest and no more will not shield the insurance company from the application of the common fund doctrine. Principal Mut. Life Ins. Co. v. Baron, 964 F. Supp. 1221, 1224 (N.D.Ill. 1997); Alston v. State Farm Mut. Auto. Ins. Co., 660 So.2d 1314, 1316 (Ala.Civ.App. 1995); Castellari v. Partners Health Plan of Colo., Inc., 860 P.2d 593, 595 (Colo.Ct.App. 1993); Amica Mut. Ins. Co. v. Maloney, 903 P.2d at 840. To avoid the application of the common fund doctrine, an insurance company must actively assist its insured in the creation, discovery, increase, or preservation of the common fund. Blue Cross Blue Shield v. Freeman, 447 So.2d at 759-60; Texas Farmers Ins. Co. v. Seals, 948 S.W.2d 532, 533 (Tex.App. 1997).