872
Breyer, J., dissenting
(2) Suppose the same broker has no assets left, but he does have an insurance policy worth $100. (3) Suppose the broker has both $100 in assets and a $100 insurance policy.
The first two cases are classic limited fund cases. See ante, at 834-836 (citing, e. g., Dickinson v. Burnham, 197 F. 2d 973 (CA2 1952), cert. denied, 344 U. S. 875 (1952), an investors' suit for the return of misused funds); ante, at 837 (citing, e. g., Morrison v. Warren, 174 Misc. 233, 234, 20 N. Y. S. 2d 26, 27 (Sup. Ct. N. Y. Cty. 1940), a suit to distribute insurance proceeds to third party beneficiaries). The third case simply combines the first two, and that third case is the case before us.
Of course the value of the insurance policies in our case is not as precise as the $100 in my example, nor was it certain at the time of settlement. But that uncertainty makes no difference. It was certain that the insurance policies' value was limited. And that limitation was created by the likelihood of an independent judicial determination of the meaning of words in the policy, in respect to which the merits or value of the underlying tort claims against Fibreboard were beside the point.
Nor does it matter that the value of the insurance policies in our case might have fluctuated over time. Long before the Federal Rules of Civil Procedure, courts permitted actions by one group of insurance policyholders to bind all policyholders, even where the group proceeded against an insurance-company-administered fund that fluctuated over time. See Hartford Life Ins. Co. v. IBS, 237 U. S. 662, 672 (1915) (life insurance fund which, like the fund before us, was administered through court-ordered rules that bound all policyholders).
Neither does it matter that the insurance policies might be worth much more money if the California court decided the coverage dispute in Fibreboard's favor. A trust worth, say, $1 million (faced with $2 million in claims) is a limited fund, despite the possibility that a company whose stock it
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