Cassim

In this case involving an insurance company’s bad faith, the insureds’ counsel engaged in a line of reasoning during closing argument to which the insurer’s counsel objected. The trial court overruled the objection, and a verdict for the insureds resulted. A divided Court of Appeal reversed the judgment, finding the closing argument was prejudicial error. We consider on review whether the insureds’ counsel committed misconduct in closing argument and, if so, whether the misconduct was prejudicial. In resolving these issues, we necessarily address the proper standard of review on appeal for attorney misconduct in closing argument. In addition, we consider whether the trial court erred in awarding tort damages under Brandt v. Superior Court (1985) 37 Cal.3d 813 [ 210 Cal.Rptr. 211 , 693 P.2d 796 ] (Brandt).

We conclude that, assuming the insureds’ counsel committed misconduct in closing argument, no prejudice resulted. We also conclude the trial court’s decision to award damages pursuant to Brandt was correct, but we must remand the case to the trial court for recalculation of the proper amount.

Facts

A. The Fire, the Investigation and Allstate’s Bad Faith

Plaintiffs…

The court’s holding has two parts. In the first part, the court, without deciding whether the closing argument under review constituted misconduct, holds that any error was harmless. I join this part of the court’s opinion, which is of importance to the parties to this litigation. In the second part, the court holds that plaintiffs are entitled to some unspecified percentage of their $3,594,600 compensatory damage award as “Brandt[ 1 ] fees, that is, the amount of attorney fees payable as damages.” (Maj. opn., ante, at p. 805.) According to the majority, the correct percentage depends on “the percentage of the legal fees paid to the attorney that reflects the work attributable to obtaining the contract recovery,” which will require the trial court first to “determine the total number of hours an attorney spent on the case” and “how many hours were spent working exclusively on the contract recovery.” (Id. at p. 812.) The trial court must next determine how many hours were “spent working on issues jointly related to both the tort and contract” and then, without any criteria to guide its decision, apportion “some hours ... to the contract and some to the tort.” (Ibid.) “This latter…

In this case involving an insurance company's bad faith, the insureds' counsel engaged in a line of reasoning during closing argument to which the insurer's counsel objected. The trial court overruled the objection, and a verdict for the insureds resulted. A divided Court of Appeal reversed the judgment, finding the closing argument was prejudicial error. We consider on review whether the insureds' counsel committed misconduct in closing argument and, if so, whether the misconduct was prejudicial. In resolving these issues, we necessarily address the proper standard of review on appeal for attorney misconduct in closing argument. In addition, we consider whether the trial court erred in awarding tort damages under Brandt v. Superior Court (1985) 37 Cal.3d 813 , 210 Cal.Rptr. 211 , 693 P.2d 796 ( Brandt ).

We conclude that, assuming the insureds' counsel committed misconduct in closing argument, no prejudice resulted. We also conclude the trial court's decision to award damages pursuant to Brandt was correct, but we must remand the case to the trial court for recalculation of the proper amount.

Plaintiffs Fareed and Rashida Cassim (the Cassims) successfully sued…