Those Two Duties Are Very Different.
For insurance coverage and bad faith practitioners, Bartel v. Chicago Title Ins. Co., Case No. H052083 (6th Dist. May 12, 2025 unpublished; May 30, 2025 published), may have salience for you. There, in a very complicated case, some Brandt fees were awarded for some discrete periods of time. However, on appeal, a revisit was necessary because the lower court failed to appreciate the difference between a duty to defend versus a duty to indemnity in an insurance context. In this instance, there were significant issues to demonstrate that the insurer could not rebut the theory some facts supported a pick-up of the defense in the case, given that claims representatives only did limited investigation and only relied on selective complaint allegations of a myopic nature. However, a remand was necessary to apportion fees for true Brandt fees versus bad faith expenses given the necessity of a revisit on certain issues.