Insurance: Sixth District Determines That Brandt Fees Are Recoverable On Appeal

Although Damages At The Trial Level, Appellate Fees Decided By Lower Court Upon An Appropriate Motion.

            In Borjon Auto Center King City, Inc. v. Sentry Select Ins. Co., Case No. H048021 et seq. (6^th Dist. May 31, 2023) (unpublished), the Sixth District entertained the issue of whether Brandt (see our Leading Case No. 11) fees are recoverable on appeal.  Here is what the appellate court said:

            “Finally, Borjon Auto Center seeks an award of Brandt attorney fees on appeal. This court has determined that Brandt attorney’s fees are recoverable on appeal. ‘We agree with the Ninth Circuit in McGregor [v. Paul Revere Life Ins. Co. (9th Cir. 2004) 369 F.3d 1099] that attorney fees the insured has incurred to defend a judgment against the insurer’s appeal are a logical extension of the fees incurred in pursuing the recovery in the trial court. The collection of the benefits due is not complete when the insurer resists the judgment by challenging the judgment on appeal. Thus, to the extent that appellate attorney fees reflect the continuation of services performed to obtain the rejected payment of policy benefits, they should be recoverable under the rationale of Brandt.’ (Baron v. Fire Ins. Exchange (2007) 154 Cal.App.4th 1184, 1198 (Baron); but see Burnaby v. Standard Fire Ins. Co. (1995) 40 Cal.App.4th 787, 797 [Brandt attorney’s fees are not recoverable on appeal].)

            “Since Brandt attorney’s fees ‘are recoverable as damages, the determination of the recoverable fees must be made by the trier of fact unless the parties stipulate otherwise. [Citations.]’ (Nickerson, supra, 63 Cal.4th at p. 373.) We will therefore remand the matter for a determination by the trial court, on appropriate motion, of the amount of attorney’s fees on appeal to which Borjon Auto Center is entitled to under Brandt, supra, 37 Cal.3d at pages 817-819. (See Baron, supra, 154 Cal.App.4th at pp. 1198-1199.) “