Politi

Appellants Edward Politi and Michael Politi appeal from the judgment in favor of respondent California Fair Plan Association granting rescission of the fire insurance policy between the parties and awarding respondent attorney’s fees as damages for breach of the covenant of good faith and fair dealing.

We conclude respondent may only recover contract damages in its action for breach of the covenant of good faith and fair dealing. We therefore reverse the award of attorney’s fees. We affirm the judgment in all other respects.

Statement of Facts and Proceedings Below

In May 1980, appellants purchased property from Charles Killion. Appellants intended to develop the property for light industrial use including office space. The property contained a house, detached garage, a barn and *1615 stables. As part of the purchase agreement, Killion was granted salvage rights to remove the structures on the property. At the close of escrow, appellants authorized Killion to remove wood from the roof.

Killion continued to occupy the property following the close of escrow and commenced removal of various structures including the garage, barn and corral. Killion also removed a portion…

I concur in the judgment only. I find no support in the statutory or case law which would enable the trial court to award attorney’s fees against the insured in this instance. Nor would I inversely apply the decision of our California Supreme Court in Brandt v. Superior Court (1985) 37 Cal.3d 813 [ 210 Cal.Rptr. 211 , 693 P.2d 796 ] to uphold the attorney’s fees award disguised as damages as suggested by respondent at oral argument.

I would go further and respectfully suggest that the holding in Brandt be reexamined by our California Supreme Court for what it is, namely, an attempt to “judicially legislate” around California Code of Civil Procedure section 1021, which proscribes attorney’s fees under circumstances such as in the instant case. I would adopt the well-reasoned view by Justice Malcolm Lucas in his dissent in the Brandt case, which would preclude attorney’s fees to carrier and insured alike in cases such as the one before us in accordance with California Code of Civil Procedure section 1021. I would urge the California Supreme Court to reexamine its judicial legislation in Brandt and to adopt the view of Justice Malcolm Lucas as contained in his dissent.

Respondent’s…

[Opinion certified for partial publication. [*] ]

OPINION

JOHNSON, J.

Appellants Edward Politi and Michael Politi appeal from the judgment in favor of respondent California Fair Plan Association granting rescission of the fire insurance policy between the parties and awarding respondent attorney's fees as damages for breach of the covenant of good faith and fair dealing.

We conclude respondent may only recover contract damages in its action for breach of the covenant of good faith and fair dealing. We therefore reverse the award of attorney's fees. We affirm the judgment in all other respects.

In May 1980, appellants purchased property from Charles Killion. Appellants intended to develop the property for light industrial use including office space. The property contained a house, detached garage, a barn and stables. As part of the purchase agreement, Killion was granted salvage rights to remove the structures on the property. At the close of escrow, appellants authorized Killion to remove wood from the roof.

Killion continued to occupy the property following the close of escrow and commenced removal of various structures including the garage, barn and corral. Killion also…