Brandt Fees: Recovering Attorney Fees in California Bad Faith

When your insurer’s delay forces you to hire a lawyer, the insurer may owe the fee

You bought the policy so that a covered loss would be paid. Instead, the insurer goes quiet. Weeks pass, then months. Eventually you hire a lawyer, but the attorney’s fees equal or exceed your recovery. California law has an answer, and lawyers call it Brandt fees.

The attorney’s fee can be part of your damages, and the insurer can be made to pay it. The name comes from the 1985 case that created the rule.

What are Brandt fees?

Brandt fees are the attorney’s fees a policyholder can recover as damages when an insurer unreasonably withholds policy benefits and the policyholder has to hire a lawyer to get them. However, they cover only the fees spent recovering the benefits owed under the policy, not the fees spent proving bad faith or seeking punitive damages.

An insurer that unreasonably withholds your benefits owes the legal fees you spent collecting them

Albert Brandt’s disability insurer refused, without proper cause, to pay benefits he was owed. So he sued and asked for his attorney’s fees as damages. The trial court struck the request. The California Supreme Court then ordered it reinstated. Brandt v. Superior Ct., 37 Cal. 3d 813 (1985).

The holding is short. “When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense.” Id. at 817. Those fees, the court explained, “are an economic loss—damages—proximately caused by the tort.” Id.

For example, think of a doctor’s bill after a car accident. The driver who caused the wreck pays for the treatment the wreck made necessary. Brandt treats your lawyer’s bill the same way. In other words, the insurer whose conduct made the lawyer necessary pays for the lawyer.

That rule is a deliberate exception, because in most lawsuits each side pays its own lawyer, win or lose. Brandt carves a narrow path around that default for policyholders whose insurers act in bad faith.

Brandt fees are a narrow remedy, and three limits decide most claims

First, bad faith is required

Being wrong is not enough. Instead, the insurer’s refusal or delay must have been unreasonable. As a result, where a denial was objectively reasonable, courts deny the fees.

Second, Brandt fees cover only the work of getting your benefits

Recoverable fees “may not exceed the amount attributable to the attorney’s efforts to obtain the rejected payment due on the insurance contract.” Brandt, 37 Cal. 3d at 819. So fees spent proving bad faith, or pursuing punitive damages, stay with you. Where hours serve both purposes, the court apportions them.

Third, asking for Brandt fees opens your lawyer’s bills

In 2024 the Court of Appeal held that an insured who seeks Brandt fees gives up the attorney-client privilege as to fee agreements, invoices, and billing records showing the amount. Byers v. Superior Ct., 101 Cal. App. 5th 1003 (2024). In practice, expect the insurer to request those records in discovery. Your lawyer may still redact protected work product.

A recent appellate decision confirms that paying the claim in full does not end the insurer’s exposure for delay

A caution: Bornoff is unpublished

Bornoff v. State Farm General Insurance Co., No. B339796, 2026 WL 1194424 (Cal. Ct. App. May 1, 2026), is unpublished. Under California Rules of Court, rule 8.1115, an unpublished opinion generally may not be cited or relied on by a court or a party. It binds no one.

Still, it is worth reading because it applies a rule published cases already state. “An insurer that pays the full amount of its policy may be liable for breach of the implied covenant of good faith and fair dealing if improper claims handling causes detriment to the insured.” Hedayati v. Interinsurance Exch. of the Auto. Club, 67 Cal. App. 5th 833, 844 (2021).

What happened in Bornoff

Jennifer Bornoff’s Studio City store was burglarized twice in March 2022. She reported each loss to State Farm the same day. Her adjuster then went a month without contacting her. On April 7 she hired a lawyer, who sent State Farm itemized lists of the stolen property.

State Farm received them on April 11. However, the adjuster testified that he did not recall seeing the letter. Bornoff sued on July 15, 2022. Five days later, State Farm paid her lost-property benefits in full: $55,166.37 on the first claim and $75,493.53 on the second, roughly four months after she reported the losses.

Why the Court of Appeal reversed

The trial court granted summary judgment. Its reasoning: State Farm had paid everything owed, so the delay left Bornoff no harm to sue over.

The Court of Appeal reversed. Bornoff’s complaint had asked for Brandt fees and for income she lost when she could not pay her vendors, and State Farm’s motion addressed neither claim. Because State Farm never met its own initial burden, the burden never shifted to Bornoff to prove those losses.

The court also found a triable issue on whether the four-month delay was unreasonable. For instance, it pointed to the adjuster’s testimony that the handling was “slow” and his supervisor’s that four months “seems like it’s too long.”

What Bornoff means for Brandt fees after a late payment

For policyholders, the practical point is this. A late payment is still a payment, but the delay itself can cause losses the check does not cover: the fee you paid your lawyer to get the check, the vendor you lost, the income that went with the vendor.

The cost of chasing your own claim belongs to the insurer that caused it

Insurers count on the fact that most people will absorb the cost of pursuing their own claim. Brandt, however, puts that cost back where the conduct was. If your insurer sat on a claim it never seriously disputed, and you had to hire a lawyer to move it, the fee you paid may be part of what you are owed, not a cost of doing business with your own insurance company.

Keep the record while it is fresh. First, write down the date you reported the loss. Then save every document you sent, and note every call that went unreturned. Call me!

This post is general information about California insurance law. It is not legal advice about your claim.