CACI No. 2350. Damages for Bad Faith
Judicial Council of California Civil Jury Instructions (2023 edition)
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2350.Damages for Bad Faith
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/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/nonbinary pronoun/
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/nonbinary pronoun] 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/nonbinary pronoun/it] to
hire an attorney to recover the policy benefits. [Name of plaintiff] may
recover attorney fees [he/she/nonbinary pronoun/it] incurred to obtain
policy benefits but not attorney fees [he/she/nonbinary pronoun/it]
incurred for other purposes.]
New September 2003
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.
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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
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 13-B,
Extracontractual Compensatory Damages, ¶¶ 13:120-13:144 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.70-24.71
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[5][c] (Matthew Bender)
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)
INSURANCE LITIGATION CACI No. 2350
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© Judicial Council of California.
