Often times, the abuse of discretion standard of review dictates results in cases involving fee or fee-shifting cases. That was the situation in Employers Ins. Co. of Wausau v. Rick Concrete Constr. Co., Case No. D058134 (4th Dist., Div. 1 Mar. 8, 2013) (unpublished).
There, the insured requested $185,915 in Brandt fees, but only was awarded $195 (yep, $195). Actually, that was sustained because the trial court according to the appellate court correctly found that the requested substantial fees had little justification after the lower court found insurer’s declaratory relief action was brought in good faith. “The only situation in which the law allows recovery of Brandt fees is when hiring counsel to prove coverage and obtain benefits is the proximate result of the insurer’s bad faith--a critical fact [insured] was unable to prove as to attorney’s fees incurred in connection with the declaratory relief action.” (Slip Opn., p. 34.)
Well, insurer was not happy that it did not get reimbursement for expert witness fees after it beat a 998 rejected offer to insured. Although technically finding that insurer was entitled to postoffer costs, the appellate court looked at the record and agreed that insurer did not demonstrate that the expert witness fees were “necessary” for the litigation. Once insured challenged the fees as necessary, the burden shifted to insurer to show they were, and insurer did not satisfy its burden.
There you go, something for everyone--split decision on the fee/costs-oriented issues.
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