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Illinois Union Insurance Co. v. Intuitive Surgical, Inc.

United States District Court, N.D. California, San Francisco Division

May 21, 2017

ILLINOIS UNION INSURANCE COMPANY, an Illinois corporation, Plaintiff,
v.
INTUITIVE SURGICAL, INC., a Delaware corporation, Defendant. INTUITIVE SURGICAL, INC., Plaintiff,
v.
ILLINOIS UNION INSURANCE COMPANY, an Illinois Corporation; NAVIGATORS SPECIALTY INSURANCE CO., a New York Corporation, Defendants.

          SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Attorneys for Plaintiff INTUITIVE SURGICAL, INC.

          COZEN O'CONNER Attorneys for Defendant ILLINOIS UNION INSURANCE COMPANY.

          JOINT STIPULATION RE: BRANDT FEES ALLOCATION AND AWARD; AND [PROPOSED] ORDER

          Honorable Jon S. Tigar United States District Court Judge.

         Intuitive Surgical, Inc. (“Intuitive”) and Illinois Union Insurance Company (“Illinois Union”) jointly stipulate, pursuant to Civil Local Rules 6-1(b), 6-2, and 7-12, that, (1) in the event Intuitive prevails on its bad faith claim, the Court will determine the amount of attorney fees to which Intuitive is entitled under Brandt v. Superior Court (“Brandt”), 37 Cal.3d 813 (1985), (2) documents related to Brandt fees shall be produced after trial, and (3) the parties will jointly propose deadlines relating to any allocation and award of Brandt fees after trial in this action concludes.

         WHEREAS, in Brandt the California Supreme Court held that “when an insurance company withholds policy benefits in bad faith, attorney fees reasonably incurred to compel payment of the benefits are recoverable as an element of the plaintiff's damages.” Nickerson v. Stonebridge Life Ins. Co., 63 Cal.4th 363, 373 (2016) (citing Brandt, 37 Cal.3d at 819);

         WHEREAS, in Brandt, the California Supreme Court went on to hold:

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. A stipulation for a postjudgment allocation and award by the trial court would normally be preferable since the determination then would be made after completion of the legal services, and proof that otherwise would have been presented to the jury could be simplified because of the court's expertise in evaluating legal services.

Id. at 819-20 (internal citations omitted); see also Nickerson, 63 Cal.4th at 373 (“Consistent with that suggestion the trial court in this case accepted the parties' pretrial stipulation that if [plaintiff] were to succeed on his bad faith claim against [defendant], the court would determine the amount of attorney fees to which [plaintiff] was entitled under Brandt.”);

         WHEREAS, Intuitive is seeking Brandt fees in connection with its implied covenant of good faith and fair dealing claim against Illinois Union;

         WHEREAS, the deadline for all fact discovery was initially set for November 10, 2016 (Dkt. 186); and

         WHEREAS, the parties then stipulated, and the Court subsequently ordered, that to the extent Intuitive produces any evidence supporting Brandt fees, including legal bills, invoices, or receipts, such evidence need not be produced until May 19, 2017 (30 days before trial) (Dkts. 197, 198).

         NOW THEREFORE, the parties, through the undersigned counsel, hereby stipulate that:

• in the event that Intuitive succeeds on its bad faith claim at trial, the Court will determine a postjudgment allocation and award of recoverable fees to which Intuitive is entitled under Brandt;
• within 20 days after a verdict in the jury trial in this action, the parties will (1) meet and confer, and (2) jointly propose to the Court expert disclosure deadlines and a briefing ...

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