Private Attorney General: Lower Court’s Denial Of CCP § 1021.5 Fees Reversed And Remanded

Insured Did Vindicate Important Rights For California Insureds By Obtaining Published Affirmance Of An Insured’s Right To Videotape Insurer’s Participants In An EUO.

            In Myasnyankin v. Nationwide Mutual Ins. Co., Case No. A166946 (1^st Dist., Div. 5 Jan. 30, 2024) (partially published), by a 2-1 vote, the appellate court affirmed a lower court’s determination that an insured has the right to videotape insurer’s participants in an examination under oath (EUO) which usually occurs in connection with claim investigations.

However, the lower court denied CCP § 1021.5 attorney’s fees to the prevailing insured.

            The 1/5 DCA reversed and remanded for purposes of determining the amount of a fee award to insured in the unpublished part of the opinion. An important right having a significant benefit existed because insured won a published affirmance of an important issue which benefitted all California insureds.  Because no monetary judgment was possible, the costs of litigation per se transcended the monetary upside to insured under Whitley.