Burnaby

In Brandt v. Superior Court (1985) 37 Cal.3d 813 [ 210 Cal.Rptr. 211 , 693 P.2d 796 ], our Supreme Court decided that, notwithstanding the limitations on the recovery of attorney fees imposed by *789 section 1021 of the Code of Civil Procedure, 1 an insured may recover his attorney fees as damages in an action alleging tortious breach of the implied covenant of good faith and fair dealing. In the case before us, the trial court extended Brandt to support an award of attorney fees as an item of costs incurred by an insured in responding to an insurer’s unsuccessful appeal from a Brandt-type judgment in favor of the insured. For the reasons explained below, we suggest it is time for the Supreme Court to reexamine the rule announced in Brandt . But even assuming (as we must) that Brandt is still good law, we cannot agree with the trial court that Brandt permits the recovery of attorney fees on appeal.

Facts

Frank Burnaby owned a home in the Big Rock Mesa area of Malibu. In 1983, he submitted claims to various public agencies, asserting (under oath) that the now infamous Big Rock landslide had damaged his property to the tune of $1.1 million. Later in 1983, Burnaby…

I concur in the opinion. However, I disagree with the majority’s suggestion that the Supreme Court reconsider Brandt; in my view, Brandt was correctly decided. In light of the duty of good faith and fair dealing owed by an insurer to its insured (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [ 210 Cal.Rptr. 211 , 693 P.2d 796 ]) and the virtual certainty an insured whose insurer breaches that duty by failing to pay amounts due under the policy will have to retain an attorney and engage in litigation in order to recover the amounts due, it is reasonable to require the insurer to pay attorney fees as damages proximately caused by the breach (ibid.).

A petition for a rehearing was denied December 19, 1995, and the opinion was modified to read as printed above. Respondent’s petition for review by the Supreme Court was denied February 29,1996. Mosk, J., and Kennard, J., were of the opinion that the petition should granted.

VOGEL (Miriam A.), J.

In Brandt v. Superior Court (1985) 37 Cal.3d 813 [ 210 Cal. Rptr. 211 , 693 P.2d 796 ], our Supreme Court decided that, notwithstanding the limitations on the recovery of attorney fees imposed by section 1021 of the Code of Civil Procedure, [1] an insured may recover his attorney fees as damages in an action alleging tortious breach of the implied covenant of good faith and fair dealing. In the case before us, the trial court extended Brandt to support an award of attorney fees as an item of costs incurred by an insured in responding to an insurer's unsuccessful appeal from a Brandt -type judgment in favor of the insured. For the reasons explained below, we suggest it is time for the Supreme Court to reexamine the rule announced in Brandt . But even assuming (as we must) that Brandt is still good law, we cannot agree with the trial court that Brandt permits the recovery of attorney fees on appeal.

Frank Burnaby owned a home in the Big Rock Mesa area of Malibu. In 1983, he submitted claims to various public agencies, asserting (under oath) that the now infamous Big Rock landslide had damaged his property to the tune of $1.1 million. Later in 1983,…