Tort Of Another Is A Damages Phase Issue, Such That Any Renewal Was Too Prejudicial.
Beeson v. Lion Connecticut Holdings Inc., Case Nos. A144542/A147993 (4th Dist., Div. 1 mod. unpublished opinion Apr. 11, 2018; original unpublished opinion Mar. 14, 2018) dealt with a cross-appeal by a party cross-complainant challenging a lower court’s denial of its fees incurred in defending plaintiffs’ claims in the trial below based on a “tort of another” theory. The real question relates to the language in this stipulation: the parties stipulated that “Fireman’s Fund’s non-attendance of the testimony portion of the damages phase of trial w[ould] not prejudice Fireman’s Fund from seeking an award of attorneys’ fees and costs, which w[ould] be addressed by the Court upon properly noticed motion by Fireman’s Fund after the conclusion of the damages phase of trial.”
Fireman’s Fund, in the cross-appeal, argued that this preserved its ability to recover “tort of another” fees against ING in the case.
No way, said the 4/1 DCA. The problem was that the stipulation only covered true attorney’s fees allowable by noticed motion, not fees awardable as damages on indemnity contracts (much like Brandt insurance fees). If Fireman’s Fund truly wanted to obtain recovery of these fees, it likely had to participate in the damages phase but its election not to was dispositive. Beyond that, it would be prejudicial to the other side to reopen this issue way past the truly “ripe” damages phase as far as obtaining a proper adjudication of the issue.