Is a plaintiff entitled to an award of attorney fees incurred to recover policy benefits from a bad faith insurer in an insurance bad faith action?

In an insurance bad faith action, the insured is entitled to an award of attorney fees incurred to recover policy benefits. (Brandt, supra, 37 Cal.3d 813, 817.) "[T]he 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.' (Brandt, supra, 37 Cal.3d at p. 819.) In short, the plaintiff is entitled to legal fees attributable to the contract recovery but not fees attributable to the tort recovery." (Howard v. American National Fire Ins. Co., supra, 187 Cal.App.4th at p. 534.) Fees attributable to both the contract and tort causes of action must be apportioned. (Ibid.)

In contingency fee situations, apportionment of fees is calculated by determining "the percentage of the legal fees paid to the attorney that reflects the work attributable to obtaining the contract recovery. . . . [] To determine the percentage of the legal fees attributable to the contract recovery, the trial court should determine the total number of hours an attorney spent on the case and then determine how many hours were spent working exclusively on the contract recovery. Hours spent working on issues jointly related to both the tort and contract should be apportioned, with some hours assigned to the contract and some to the tort. This latter figure, added to the hours spent on the contract alone, when divided by the total number of hours worked, should provide the appropriate percentage." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 812 (Cassim).)