Susan McGregor v. Paul Revere Life Insurance Company, a Massachusetts Corporation

ORDER

In an earlier unpublished disposition, we affirmed a jury verdict in favor of Susan McGregor on claims for breach of contract and breach of the implied covenant of good faith and fair dealing. See McGregor v. Paul Revere Life Ins. Co., 92 Fed.Appx. 412 (9th Cir.2004). McGregor now moves to recover the attorneys’ fees she incurred on this appeal. McGregor’s motion raises three issues. We must first decide whether the rule announced in Brandt v. Superior Court, 37 Cal.3d 813 , 210 Cal.Rptr. 211 , 693 P.2d 796 (1985), includes fees on appeal. If it does, we must then decide whether McGregor may recover fees tied to the jury’s future benefits award. Finally, we also decide the amount of fees McGregor is entitled to recover. We conclude that the Brandt rule does extend to fees incurred on appeal but that McGregor has waived any claim to fees tied to the future benefits award, and fix the amount of the award accordingly.

I.

The California Supreme Court held in Brandt that attorneys’ fees reasonably incurred to compel payment of insurance policy benefits are recoverable as an element of tort damages if the insured proves breach of the covenant of good faith and fair dealing. 210…