California Civil Jury Instructions (CACI)

2350. Damages for Bad Faith

If you decide that [name of plaintiff] has proved [his/her/its] claim against [name of defendant], you also must decide how much money will reasonably compensate [name of plaintiff] for the harm. This compensation is called "damages."

The amount of damages must include an award for all harm that was caused by [name of defendant], even if the particular harm could not have been anticipated.

[Name of plaintiff] must prove the amount of [his/her/its] damages. However, [name of plaintiff] does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.

The following are the specific items of damages claimed by [name of plaintiff]:

1. [Mental suffering/anxiety/humiliation/emotional distress;] [and]

2. [The cost of attorney fees to recover the insurance policy benefits;] [and]

3. [Insert other applicable item of damage.]

[No fixed standard exists for deciding the amount of damages for [insert item of mental or emotional distress]. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.]

[To recover for future [insert item of mental or emotional distress], [name of plaintiff] must prove that [he/she] is reasonably certain to suffer that harm.]

[To recover attorney fees [name of plaintiff] must prove that because of [name of defendant]'s breach of the obligation of good faith and fair dealing it was reasonably necessary for [him/her/it] to hire an attorney to recover the policy benefits. [Name of plaintiff] may recover attorney fees [he/she/it] incurred to obtain policy benefits but not attorney fees [he/she/it] incurred for other purposes.]

Directions for Use

The instructions in this series assume the plaintiff is the insured and the defendant is the insurer. The party designations may be changed if appropriate to the facts of the case.

For instructions on damages for pain and suffering, see CACI No. 3905, Items of Noneconomic Damage, and CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). For instructions on punitive damages, see other instructions in the Damages series.

Sources and Authority

"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. The attorney's fees are an economic loss—damages—proximately caused by the tort." (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].)

"The fees recoverable . . . may not exceed the amount attributable to the attorney's efforts to obtain the rejected payment due on the insurance contract. Fees attributable to obtaining any portion of the plaintiff's award which exceeds the amount due under the policy are not recoverable. [¶] Since the attorney's fees are recoverable as damages, the determination of the recoverable fees must be made by the trier of fact unless the parties stipulate otherwise." (Brandt, supra, 37 Cal.3d at p. 819.)

"If . . . the matter is to be presented to the jury, the court should instruct along the following lines: 'If you find (1) that the plaintiff is entitled to recover on his cause of action for breach of the implied covenant of good faith and fair dealing, and (2) that because of such breach it was reasonably necessary for the plaintiff to employ the services of an attorney to collect the benefits due under the policy, then and only then is the plaintiff entitled to an award for attorney's fees incurred to obtain the policy benefits, which award must not include attorney's fees incurred to recover any other portion of the verdict.' " (Brandt, supra, 37 Cal.3d at p. 820.)

Secondary Sources

2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of Good Faith, § 13.03[5][c] (Matthew Bender)

2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar 2002) General Principles of Contract and Bad Faith Actions, §§ 24.70- 24.71, pp. 932-934

Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group 2002) ¶¶ 13:120-13:144, pp. 13-25-13-32

2 California Uninsured Motorist Law, Ch. 25, Uninsured Motorist Bad Faith Litigation, §§ 25.40-25.44 (Matthew Bender)

26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)

(New September 2003)