Opinion

In this personal injury action, City of San Diego (City) intervened seeking reimbursement for workers’ compensation benefits it paid its employees, Police Officers Edmund Gapusan and Frederick McGee. (Lab. Code,1 § 3852.) We conclude the trial court violated section 3860, subdivision (b) by distributing half of the $200,000 settlement proceeds to the officers under equitable apportionment principles. We reject, however, City’s contention the error automatically entitles it to the entire settlement amount. While the court must adhere to the statutory scheme in allocating settlement proceeds subject to an employer’s reimbursement rights, the employer’s priority is subject to certain exceptions. Accordingly, we reverse the judgment and remand for a new evidentiary hearing and redistribution of the proceeds in conformance with the views expressed herein.

Factual and Procedural Background

In 1994, Gapusan and McGee were seriously injured when a drunk driver, David Patrick Jay, caused his pickup truck to collide with their patrol car. *739As a result, McGee was forced to retire and Gapusan was alternately off work and limited to light duty for more than two years.

Gapusan and McGee brought this action for personal injuries. Their wives, Victoria Gapusan and Kattie McGee,2 joined and sought damages for loss of consortium. City intervened, seeking reimbursement for workers’ compensation benefits it paid Gapusan and McGee.3 Jay had liability insurance of $100,000 per injured person and apparently no ability to pay additional damages. He filed a cross-complaint in interpleader and the carrier deposited $200,000 with the court.4 City and plaintiffs accepted the policy limits in settlement of their respective claims against Jay, but failed to agree on any apportionment of the funds.

In a hearing to resolve the matter, City claimed entitlement to the full $200,000 because the total benefits it paid the officers exceeded that amount. City declared McGee and Gapusan received compensation of $38,254.72 and $42,840.98, respectively. Additionally, McGee was entitled to disability retirement of 50 percent of his annual salary for life, adjusted for inflation, at a cost of $268,287.79 to City.

Plaintiffs argued the court may equitably apportion settlement funds when they are insufficient to fully reimburse the employer and pay the employee for pain and suffering and other losses not covered by the workers’ compensation system. Gapusan and McGee submitted medical records and attested to their injuries and disabilities, and a certified public accountant declared McGee’s economic losses not covered by workers’ compensation exceeded $503,546.

The court agreed with plaintiffs’ view and awarded City $100,000 and each plaintiff couple $50,000. Judgment was entered accordingly and this appeal followed.

*740Discussion

I. Standard of Review

Plaintiffs urge us to apply an abuse of discretion standard. This case, however, involves the interpretation and application of statutes in the context of undisputed facts. We thus review the purely legal questions de novo. (Insurance Co. of North America v. T.L.C. Lines, Inc. (1996) 50 Cal.App.4th 90, 94 [57 Cal.Rptr.2d 542].)

“Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so we look first to the words of the statute, giving them their usual and ordinary meaning. [Citations.]” (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501 [247 Cal.Rptr. 362, 754 P.2d 708].) “Statutes must be given a fair and reasonable interpretation, with due regard to the language used and the purpose sought to be accomplished.” (Home Depot, U.S.A., Inc. v. Contractors’ State License Bd. (1996) 41 Cal.App.4th 1592, 1601 [49 Cal.Rptr.2d 302].)

II. The Court Erred in Equitably Apportioning the Settlement Proceeds

City contends the trial court violated the Labor Code by distributing the settlement proceeds on equitable grounds. Section 3860, subdivision (b) states: “Except as provided in Section 3859 [inapplicable here], the entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid or [may] become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.” (Italics added.) As discussed more fully later, prior to the employer’s reimbursement, the court is required to determine the parties’ entitlement to reasonable attorney fees and other litigation expenses. (§ 3860, subds. (c)-(f).)

Plaintiffs counter that under common law principles of equitable subrogation, the trial court may ignore the plain language of section 3860, subdivision (b) and apportion inadequate settlement proceeds so the employee recovers something for pain and suffering or other damages not covered by workers’ compensation law. They point out that the Labor Code’s subrogation provisions are a legislative recognition of the common law doctrine of equitable subrogation, and therefore they should be construed in accordance therewith. (Breese v. Price (1981) 29 Cal.3d 923, 930 [176 Cal.Rptr. 791, 633 P.2d 987].) Plaintiffs rely on automobile insurance cases holding common law equity principles prohibit a carrier from recovering payments made *741to its insured from a third party tortfeasor, where the insured had not yet been made whole. (Sapiano v. Williamsburg Nat. Ins. Co. (1994) 28 Cal.App.4th 533, 536-537 [33 Cal.Rptr.2d 659]; United Pacific-Reliance Ins. Companies v. Kelly (1983) 140 Cal.App.3d 72, 77 [189 Cal.Rptr. 323]; Security Nat. Ins. Co. v. Hand (1973) 31 Cal.App.3d 227, 231-233 [107 Cal.Rptr. 439].)

We are unpersuaded. Where the Legislature has “minutely described the limitations and exceptions dealing with a given subject matter,” we may assume it intended to supplant any relevant common law. (In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 261 [69 Cal.Rptr.2d 120].) The Legislature has clearly provided that where, as here, a third party settlement includes the employer’s reimbursable benefits, the employer’s right of reimbursement takes first and full priority after the payment of litigation expenses and attorney fees, where appropriate. (§ 3860, subds. (b)-(f); Board of Administration v. Glover (1983) 34 Cal.3d 906, 912-914 [196 Cal.Rptr. 330, 671 P.2d 834]; Marrujo v. Hunt (1977) 71 Cal.App.3d 972, 978 [138 Cal.Rptr. 220]; 1 Hanna, Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed. 1997) § 11.25[2], pp. 11-97, 11-98.) Any common law principles suggesting a different result have thus been abrogated. As another court has observed, there is “a clear legislative policy militating in favor of reimbursement whenever possible.” (Abdala v. Aziz, supra, 3 Cal.App.4th at p. 377.)5

We also reject plaintiffs’ assertion the clause “subject to” in section 3860, subdivision (b) may be interpreted to give the court discretion to equitably apportion inadequate settlement funds. The phrase “subject to” means “subordinate to.” (See Swan Magnetics, Inc. v. Superior Court (1997) 56 Cal.App.4th 1504, 1510 [66 Cal.Rptr.2d 541].) “Subordinate” means “inferior in order, nature, dignity, power, importance, or the like . . . .” (Black’s Law Dict. (6th ed. 1990) p. 1426, col. 1.) On its face, subdivision (b) of section 3860 gives the employer’s reimbursement claim priority, after payment of litigation costs and attorney fees where appropriate. Plaintiffs’ argument the provision is applicable only where settlement proceeds are *742adequate to fully compensate employer and employee is similarly unavailing. The implicit purpose of section 3860 is to prioritize payments when settlement funds are insufficient to satisfy all claims.

In sum, we conclude the court erred in equitably distributing a portion of the settlement proceeds to Gapusan and McGee. We reject, however, City’s request that we merely award it the entire $200,000 in settlement funds. Its reimbursement right is subject to other considerations, discussed below, requiring a new evidentiary hearing and the court’s redistribution of the proceeds.6

III. Loss of Consortium

A wife’s loss of consortium is comprised of her “own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citations.]” (Lantis v. Condon (1979) 95 Cal.App.3d 152, 157 [157 Cal.Rptr. 22].) While triggered by the spouse’s injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse’s cause of action. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162 [233 Cal.Rptr. 308, 729 P.2d 743]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 406 [115 Cal.Rptr. 765, 525 P.2d 669]; Lantis v. Condon, supra, 95 Cal.App.3d at p. 157.)

Nothing in section 3860, subdivision (b) indicates the Legislature intended to deprive an employee’s spouse of any recovery for separate loss of consortium claims where, as here, there is an unallocated settlement with the third party tortfeasor. Further, we cannot imply such intent from the workers’ compensation scheme. The primary purpose of allowing an employer to obtain reimbursement is to prevent the employee’s double recovery. (Sea-Land Service, Inc. v. Workers’ Comp. Appeals Bd. (1996) 14 Cal.4th 76, 82 [58 Cal.Rptr.2d 190, 925 P.2d 1309]; O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 653 [12 Cal.Rptr.2d 774].) A spouse’s retention of settlement funds for loss of consortium damages, for which an employer has no liability (Gillespie v. Northridge Hosp. Foundation (1971) 20 Cal.App.3d 867, 870-871 [98 Cal.Rptr. 134]), does not violate the rule against double recovery. Put another way, an employer simply has no subrogation rights to a spouse’s loss of consortium claims.

*743While “joinder in one action is ‘the preferred method for asserting a claim of loss of consortium . . . .’ [citation], an action for loss of consortium can be maintained independently of the action by the physically injured spouse. [Citation.]” (Evans v. Dayton Hudson Corp. (1991) 234 Cal.App.3d 49, 54-55 [285 Cal.Rptr. 550].) Had Victoria and Kattie filed a separate action, City obviously could not have intervened or obtained any reimbursement from a judgment or settlement. The fact that they voluntarily joined their causes of action with those of their husbands, and agreed to a global settlement, should not change the result.

An employer is entitled to press its reimbursement claims only against a judgment or settlement in favor of its employee. Where a settlement is in satisfaction of both the employee’s claims and independent claims, such as ones for loss of consortium, the court must first ascertain the damages to which each plaintiff is entitled and then apportion the settlement.7 (See Eli v. Travelers Indemnity Co. (1987) 190 Cal.App.3d 901, 905 [235 Cal.Rptr. 704].) In Eli, the court held the employer did not have priority where a $50,000 insurance policy limit was paid in satisfaction of the independent claims of the workers’ compensation carrier and the employee’s parents, nondependent heirs who had wrongful death claims under Code of Civil Procedure former section 377 (now section 377.60). In that instance, the employer and the heirs enjoyed equal priorities.8 Such is the case here with City and the officers’ wives.

City, in fact, essentially concedes the trial court had authority to allocate a portion of the settlement funds to Victoria and Kattie for their loss of consortium claims. It complains, however, that they failed to present any evidence in support. This is correct, but such evidence may be submitted on remand. “ ‘[A]n unqualified reversal remands the cause for a new trial [citation], and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable.’ [Citations.]” (Hall v. Superior Court (1955) 45 Cal.2d.377, 381 [289 P.2d 431].)

IV. Litigation Expenses and Attorney Fees

On remand, the court must also determine whether attorney fees and other litigation costs should be deducted from the settlement proceeds before *744City is reimbursed. Ordinarily, parties are responsible for their own attorney fees. (Code Civ. Proc., § 1021.) “But an established exception to this rule is the so-called ‘common fund doctrine.’ [Citation.] That is, a party who expends attorney fees in winning a lawsuit which creates a fund from which others derive benefits may require those passive beneficiaries to bear a fair share of the litigation costs. The amount of the judgment owing to the passive beneficiary may be reduced to compensate the active litigant for his [or her] attorney fees. [Citation.]” (Walsh v. Woods (1986) 187 Cal.App.3d 1273, 1276 [232 Cal.Rptr. 629].)

Under section 3860, the trial court must set reasonable attorney fees and costs based on efforts which created a common fund.9 Where settlement is effected solely through the efforts of the employee’s attorney, the employer is a passive beneficiary and its reimbursement rights are *745subject to reasonable fees and expenses for “services in securing and effecting settlement for the benefit of both the employer and the employee.” (§ 3860, subd. (c).) “[I]f the employer receives his fair share of the recovery, he must bear his fair share of the cost of the recovery.” (Quinn v. State of California, supra, 15 Cal.3d at p. 176.) Where the settlement is insufficient to satisfy the employer’s claim and compensate counsel, the attorney fees and costs take priority. (Id. at p. 175, fn. 17.)

The same standard is applied where settlement is achieved solely through the efforts of the employer’s attorney. (§ 3860, subd. (d).) “After fixing the amount of the attorney fee award, the trial court must apportion the fee award between the parties benefitted by the recovery; in doing so, the trial court must decide to what extent the passive beneficiary should contribute to the litigation expenses and fees which created the recovery fund. [Citation.]” (Walsh v. Woods, supra, 187 Cal.App.3d 1273, 1277.)

The common fund doctrine, however, is inapplicable where there are no passive beneficiaries. Thus, where both parties’ attorneys “actively participated” in effecting the settlement, section 3860 provides that the fee awards of each attorney are “based upon the respective services rendered in securing and effecting settlement for the benefit of the party represented.” (§ 3860, subd. (e).) “Accordingly, the amount of the award to each attorney will be based on the efforts of the attorney for his own client. The doctrine of apportionment does not apply therein; each attorney fee award comes out of each party’s own share of the recovery. ‘[W]hen each party separately employs his own attorney ... the statute direct[s] the court to relinquish this duty of equitable apportionment .... [Citations.]’ ”10 (Walsh v. Woods, supra, 187 Cal.App.3d at p. 1278; see also Crampton v. Takegoshi (1993) 17 Cal.App.4th 308, 318 [21 Cal.Rptr.2d 284], disapproved on other grounds in Phelps v. Stostad (1997) 16 Cal.4th 23, 34 [65 Cal.Rptr.2d 360, 939 P.2d 760]; Hartwig v. Zacky Farms (1992) 2 Cal.App.4th 1550, 1554 [3 Cal.Rptr.2d 828]; Kavanaugh v. City of Sunnyvale (1991) 233 Cal.App.3d 903, 914-915 [284 Cal.Rptr. 698]; 1 Herlick, Cal. Workers’ Compensation Law (5th ed. 1996) § 12.13, p. 12-28.)

The question of “active participation” is a matter of proof for the trial court. (Walsh v. Woods, supra, 187 Cal.App.3d at p. 1278) “[T]he mere *746retention of separate counsel is not enough to defeat the common fund doctrine. . . . Nominal participation will not suffice.” (Ibid., citations omitted; see also, Kaplan v. Industrial Indem. Co. (1978) 79 Cal.App.3d 700, 709 [145 Cal.Rptr. 219] [filing a lien or complaint insufficient]; Kavanaugh v. City of Sunnyvale, supra, 233 Cal.App.3d at p. 915 [token appearance insufficient]; Kindt v. Otis Elevator Co. (1995) 32 Cal.App.4th 452, 460 [38 Cal.Rptr.2d 121] [evidence did not show “ ‘conscientious attempt’ ” to advance client’s interests].) If the employer “desires to avoid apportionment, it must provide the trial court with sufficient factual detail to establish that its activities constituted a conscientious effort in the circumstances to address the substantive issues encompassed by the lienholder’s case. [Citation.] Whether the showing ... in any one instance constitutes substantial evidence of active participation will necessarily turn upon the particular facts and events involved in the action.”11 (Hartwig v. Zacky Farms, supra, 2 Cal.App.4th at p. 1557.)

V. Summary re Calculations on Remand

On remand, the trial court must first determine whether any amount of the $100,000 settlement per couple should be allocated to the loss of consortium claims, in accordance with our earlier discussion. Only the portions of the settlement allocated to the officers are subject to City’s reimbursement claims.12 The court must then determine whether City’s counsel actively participated in effecting the settlement. If not, before City’s reimbursement, the court shall fix reasonable attorney fees and costs, and then determine to what extent City should contribute to plaintiffs’ creation of the common fund. If City’s attorney did actively participate, its right of *747reimbursement takes priority and the parties must shoulder their own attorney fees and costs from their respective shares of the recovery, if any.13

Disposition

The judgment is reversed and the matter is remanded to the trial court for a new evidentiary hearing and redistribution of the $200,000 settlement proceeds in conformance with this opinion. All parties to bear their own costs.

Kremer, P. J., and Work, J., concurred.