Are attorney fees recoverable as an element of damages?

Brandt held attorney fees reasonably incurred to compel payment of policy benefits tortiously withheld by an insurer are recoverable as an element of damages. (Brandt v. Superior Court, supra, 37 Cal.3d at pp. 815, 817, 210 Cal.Rptr. 211, 693 P.2d 796.) "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. [Citation.]" (Id. at p. 817, 210 Cal.Rptr. 211, 693 P.2d 796.)

The retainer agreement required plaintiff to pay counsel 40 percent of all sums recovered in this action. It had no further legal obligation to pay counsel for the legal services rendered to it. Brandt held the "fees recoverable ... may not exceed the amount attributable to the attorney's efforts to obtain the rejected payment due on the insurance contract." (Brandt v. Superior Court, supra, 37 Cal.3d at p. 819, 210 Cal.Rptr. 211, 693 P.2d 796.) Plaintiff cites no authority permitting a post-trial modification of the retainer agreement. The trial court did not err by limiting the damage award under Brandt v. Superior Court, supra, 37 Cal.3d at p. 813, 210 Cal.Rptr. 211, 693 P.2d 796 to the percentage specified in the parties' contingency agreement.