Petition Pending in California Supreme Court
One of the pleasures of blogging is that it is interactive, and we hear (if one can hear email) frequently from our readers. Jeffrey I. Ehrlich, one of the appellate lawyers in Ivers v. Allstate, 2008, WL 5197119 (3d Dist. December 12, 2008) (unpublished), a case reported by us in a December 13, 2008 post, has written to us about the case. With his permission, we share his comments with our readers:
"I am the appellate lawyer on Ivers v Allstate, which is discussed on your site. (I was not trial counsel.) I wanted to point out a couple of things.
The trial court was not inclined to award fees, regardless of the allocation. The court denied fees on the basis that no “tort” damages were awarded to Ivers. The jury found that Allstate had denied the claim in bad faith and that it breached the policy, and awarded him the policy benefits, but nothing else. Allstate argued that by failing to award any extra-contractual damages, Ivers had not actually prevailed on his bad-faith claim. The trial court accepted this, and the appellate opinion is not accurate to the extent it suggests otherwise.
So, Ivers hired a contingency fee lawyer and owed him 40%. He recovers his contract damages. What should his Brandt fees be? Under Brandt, that’s easy: 40%. That is exactly what it cost Ivers to collect his contract benefits, which the jury held were unreasonably withheld.
What would the Cassim allocation do in this situation? Ivers could not collect more than 40% of the recovery, regardless of the time spent on any aspect of the case. And if the allocation produced an award of less than 40%, then Ivers is undercompensated for his fees — a result that Brandt says is improper.
In this situation, the insurer’s insistence on an allocation was only for the purpose of trying to find a way to justify awarding Ivers less than he was entitled to receive.
As for the last line of your article — it’s good advice."
[Our last line was: The lesson from this one extends beyond the Brandt context: if a lower court gives you leave to submit further evidence because it wants apportionment, don't be stubborn — you are prudent to take advantage of the opportunity and present further proof in line with its directives.]
Mr. Ehrlich informs us that a petition is pending in the California Supreme Court for review of the Cassim allocation issue. Hat Tip to Mr. Ehrlich.