PERSONAL INJURY | 2026-09-30
Brandt Fees: Recovering Your Attorney Fees as Damages in an Insurance Bad-Faith Case
California follows the American Rule — each side pays its own lawyer. But when an insurer’s bad faith forces you to hire a lawyer to get the benefits it owed, those fees become recoverable damages under Brandt v. Superior Court.
California follows the <strong>American Rule</strong>: absent a statute or contract, each party bears its own attorney fees. Insurance bad-faith cases contain a powerful exception. When an insurer’s <strong>bad-faith</strong> refusal to pay benefits compels its insured to hire a lawyer to obtain wha
In most cases, winning does not get your lawyer paid by the other side. Insurance bad faith is different — when the insurer’s misconduct forced you to litigate for your benefits, your fees to obtain them are recoverable.
The American Rule and Its Bad-Faith Exception
Under the American Rule, each litigant ordinarily pays its own attorney fees regardless of outcome. In Brandt v. Superior Court, the California Supreme Court recognized that when an insurer tortiously withholds policy benefits, the insured is forced to incur attorney fees to obtain the very benefits the insurer should have paid. Those fees are a direct, foreseeable consequence of the insurer’s wrongful conduct — and are therefore recoverable as tort damages, not as a statutory fee award. Brandt fees are the insurer’s liability for the harm it caused, framed correctly as compensatory damages.
What Brandt Fees Cover — and What They Do Not
The scope of Brandt fees is carefully limited:
- Recoverable: the attorney fees attributable to obtaining the policy benefits that the insurer wrongfully withheld.
- Not recoverable as Brandt fees: the fees attributable to proving the bad-faith tort itself or to pursuing other damages (such as emotional distress or punitive damages). Those portions of the litigation are governed by the American Rule.
In other words, Brandt compensates only the effort needed to recover the withheld contract benefits, not the entire cost of the bad-faith lawsuit. This distinction requires the fees to be apportioned.
How Brandt Fees Are Calculated: Cassim v. Allstate
Because a bad-faith case typically involves both the effort to recover benefits and the effort to prove the tort, the fees must be allocated. In Cassim v. Allstate Insurance Co., the California Supreme Court addressed how to calculate Brandt fees when the insured is represented on a contingency basis. Rather than requiring attorneys to keep artificial hourly records, Cassim approved allocating the contingency fee by determining the percentage of the attorney’s efforts devoted to recovering the policy benefits, and applying that percentage to the contingent fee. This provides a workable method for contingency-fee cases, which are common in bad-faith litigation.
Proving Brandt Fees
Because Brandt fees are damages, they are part of the plaintiff’s case. They can be:
- Tried to the jury as an element of damages; or
- By stipulation, reserved for the court to determine after the verdict — a common practice, so the jury is not burdened with fee evidence.
Either way, the plaintiff must present evidence supporting the amount and the allocation. Failing to plead and prove Brandt fees can forfeit an otherwise recoverable element of damages.
Why Brandt Fees Matter
Brandt fees can substantially increase the value of a bad-faith claim, and — just as important — they align incentives with fairness: an insurer should not be able to withhold benefits, force the insured into costly litigation, and then keep the benefit of the American Rule. For insureds, Brandt ensures that the cost of vindicating a wrongfully denied claim does not eat away at the recovery of the benefits themselves. For insurers, the doctrine is a reminder that an unreasonable denial carries the added exposure of the insured’s fees to recover the benefits.
Frequently Asked Questions
What are Brandt fees?
Attorney fees recoverable as damages when an insurer’s bad faith forces the insured to hire a lawyer to obtain wrongfully withheld policy benefits.
Aren’t attorney fees usually not recoverable?
Correct — California follows the American Rule, but Brandt recognizes an exception treating the fees to recover benefits as tort damages.
Do Brandt fees cover the whole case?
No — only the fees attributable to recovering the policy benefits, not those for proving the bad-faith tort or pursuing other damages.
How are they calculated in a contingency case?
Under Cassim v. Allstate, by determining the percentage of the attorney’s efforts devoted to recovering benefits and applying that percentage to the contingency fee.
Who decides the amount?
The jury as damages, or — commonly by stipulation — the court after the verdict.
Do I have to prove them?
Yes — because they are damages, Brandt fees must be pleaded and proven as part of the case.
Related Personal Injury Guides
Talk to a California Insurance Bad-Faith Attorney
If an insurer’s bad faith forced you to hire a lawyer to get the benefits you were owed, those fees may be recoverable as Brandt damages. Trembach Law Firm handles California bad-faith claims. Call (818) 514-7680.
Contact Trembach Law Firm at (818) 514-7680 for a confidential consultation.
Trembach Law Firm | 27001 Agoura Road, Suite 350, Calabasas, CA 91301