Filed 6/9/16




       IN THE SUPREME COURT OF CALIFORNIA


THOMAS NICKERSON,                    )
                                     )
           Plaintiff and Appellant,  )
                                     )                           S213873
           v.                        )
                                     )                    Ct.App. 2/3 B234271
STONEBRIDGE LIFE INSURANCE           )
COMPANY,                             )
                                     )                    Los Angeles County
           Defendant and Respondent. )                  Super. Ct. No. BC405280
____________________________________)



        The due process clause of the Fourteenth Amendment to the United States
Constitution prohibits states from imposing ― ‗grossly excessive‘ ‖ punitive
damages awards on tortfeasors. (BMW of North America, Inc. v. Gore (1996) 517
U.S. 559, 568 (Gore).) To determine whether a jury‘s award of punitive damages
is grossly excessive, reviewing courts must consider, among other factors, whether
the ―measure of punishment is both reasonable and proportionate to the amount of
harm to the plaintiff‖ by comparing the amount of compensatory damages to the
amount of punitive damages. (State Farm Mut. Automobile Ins. Co. v. Campbell
(2003) 538 U.S. 408, 426 (State Farm).) Absent special justification, ratios of
punitive damages to compensatory damages that greatly exceed 9 or 10 to 1 are
presumed to be excessive and therefore unconstitutional. (Simon v. San Paolo
U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182 (Simon).)
       The question in this case concerns the proper calculation of the punitive-
compensatory ratio when the parties have agreed to have the trial court determine
a component of the plaintiff‘s compensatory damages — here, the attorney fees
plaintiff was compelled to expend to obtain the insurance benefits to which he was
entitled (see Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 (Brandt)) —
after, rather than before, the jury has rendered its punitive damages verdict. The
Court of Appeal in this case held that Brandt fees awarded in this manner must be
excluded from the calculation in determining whether, and to what extent, the
jury‘s punitive damages award exceeds constitutional limits.
       We conclude that the Court of Appeal erred. In determining whether a
punitive damages award is unconstitutionally excessive, Brandt fees may be
included in the calculation of the ratio of punitive to compensatory damages,
regardless of whether the fees are awarded by the trier of fact as part of its verdict
or are determined by the trial court after the verdict has been rendered. We
therefore reverse the judgment of the Court of Appeal.

                                          I.

       On February 11, 2008, plaintiff Thomas Nickerson, who is paralyzed from
the chest down, broke his leg when he fell from the wheelchair lift on his van. He
was taken to the Department of Veterans Affairs hospital in Long Beach, where,
as a veteran, he was entitled to medical care at no cost. After being treated in the
emergency room, Nickerson was admitted to the hospital and placed in a unit
equipped to treat paraplegics and quadriplegics. Doctors applied a full-leg splint,
having determined that Nickerson had suffered a comminuted displaced fracture of
his right tibia and fibula, meaning that the bones had broken into several pieces
that did not line up with one another. Nickerson thereafter experienced several
complications from the injury.


                                           2
       After spending several weeks confined to a hospital bed, Nickerson was
permitted to move to his wheelchair on March 24, 2008, but could tolerate sitting
in the wheelchair for only limited periods of time. On May 19, 2008, Nickerson‘s
treating physician determined that he was stable and would have been ready to
return home except that he was unable to maneuver through his home without a
particular part needed for his wheelchair. Nickerson was ultimately discharged
from the hospital on May 30, 2008, after obtaining the needed part. He had been
hospitalized for 109 days total.
       Following his discharge from the hospital, Nickerson sought benefits from
defendant Stonebridge Life Insurance Company (Stonebridge) under an indemnity
benefit policy that promised, as relevant here, to pay him $350 per day for each
day he was confined in a hospital for the necessary care and treatment of a covered
injury. Some months later, Stonebridge notified Nickerson that it had completed
processing his request for benefits. Invoking the policy‘s definition of ―necessary
treatment,‖ Stonebridge determined, without consulting the views of Nickerson‘s
treating physicians, that his hospitalization was ―medically necessary‖ only from
February 11 to 29. Stonebridge sent Nickerson a check for $6,450, which
represented payment of $150 for one visit to the emergency room and $6,300 for
18 days of hospitalization at $350 per day.
       Nickerson filed the present suit. He alleged that Stonebridge breached the
insurance contract by failing to pay him benefits for the full 109 days of his
hospital stay and that Stonebridge breached the implied covenant of good faith and
fair dealing by acting unreasonably and in bad faith in denying him his full policy
benefits. The parties stipulated before trial that if Nickerson succeeded on his
complaint, the trial court could determine the amount of attorney fees to which
Nickerson was entitled under Brandt, supra, 37 Cal.3d 813, as compensation for


                                          3
having to retain counsel to obtain the policy benefits. At trial, neither party
presented to the jury evidence concerning the claim for, or amount of, Brandt fees.
       At the close of Nickerson‘s case, the trial court granted Nickerson‘s motion
for a directed verdict on the breach of contract cause of action and awarded him
$31,500 in unpaid policy benefits. With respect to the bad faith cause of action,
the jury returned a special verdict finding that Stonebridge‘s failure to pay policy
benefits was unreasonable and awarded Nickerson $35,000 in damages for
emotional distress. The jury also found Stonebridge had ―enagage[d] in the
conduct with fraud‖ and awarded $19 million in punitive damages. (See Civ.
Code, § 3294, subd. (a) [in a civil case not arising from the breach of a contractual
obligation, punitive damages may be awarded ―where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice‖].) After the jury rendered its verdict, the parties stipulated that the amount
of attorney fees to which Nickerson was entitled under Brandt was $12,500, and
the court awarded that amount.
       Stonebridge moved for a new trial seeking a reduction in the punitive
damages award, which it argued was constitutionally excessive. The trial court
agreed and granted Stonebridge a new trial unless Nickerson consented to a
reduction of the punitive damages award to $350,000.1 The trial court cited State


1      Although neither party has raised the point, we note that the ―appropriate
order‖ under these circumstances ―is for an absolute reduction, rather than a
conditional reduction with the alternative of a new trial, i.e., a remittitur.‖ (Simon,
supra, 35 Cal.4th at p. 1187.) As we explained in Simon, ―[o]nce a maximum
constitutional award has been determined, . . . a new trial on punitive damages
would be futile. ‗Giving a plaintiff the option of a new trial rather than accepting
the constitutional maximum for this case would be of no value. If, on a new trial,
the plaintiff was awarded punitive damages less than the constitutional maximum,
he would have lost. If the plaintiff obtained more than the constitutional

                                                   (footnote continued on next page)
                                           4
Farm, supra, 538 U.S. 408, for the proposition that a punitive-compensatory ratio
exceeding single digits will ordinarily exceed constitutional bounds. (See id. at
p. 425.) The trial court thus determined it was bound to reduce the punitive
damage award to a ratio of punitive to compensatory damages of 10 to 1. In
calculating the permissible amount of punitive damages, the court considered only
the $35,000 the jury had awarded in compensatory damages for emotional distress
for Stonebridge‘s tortious breach of the implied covenant of good faith and fair
dealing; it did not include the $12,500 in Brandt fees.
       Nickerson rejected the reduction in punitive damages and appealed the
order granting a new trial. (See Code Civ. Proc., § 904.1, subd. (a)(4).) A divided
Court of Appeal affirmed. The Court of Appeal held that the trial court properly
reduced the jury‘s award to a 10-to-1 ratio of punitive to compensatory damages.
The court further held that the trial court had correctly calculated the amount of
compensatory damages for purposes of this analysis. In so doing, it rejected
Nickerson‘s argument that the trial court should have taken into account the
$12,500 in Brandt fees. The court acknowledged the Court of Appeal‘s holding in
Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1224, that ―the
amount of the jury‘s award of Brandt fees . . . may be properly considered . . . in
determining if the ratio of punitive damages to the tort damages award is
excessive.‖ But the court distinguished Major on the ground that the jury in that
case had awarded Brandt fees as part of tort damages. When Brandt fees instead



(footnote continued from previous page)

maximum, the award could not be sustained. Thus, a new trial provides only a
―heads the defendant wins; tails the plaintiff loses‖ option.‘ [Citation.]‖ (Id. at
p. 1188.)


                                          5
―are awarded by the trial court after the jury awards punitive damages,‖ the court
held, the fees are not properly included in the constitutional calculus. In support
of that proposition, the court cited Amerigraphics, Inc. v. Mercury Casualty Co.
(2010) 182 Cal.App.4th 1538, 1565, which stated, without further elaboration or
citation, that the trial court in that case had ―properly excluded the amount of
Brandt fees in determining the compensatory damages award, since the Brandt
fees were awarded by the court after the jury had already returned its verdict on
the punitive damages.‖
       The dissenting opinion, by contrast, took the view that the award of
punitive damages did not satisfy the state law requirements for such an award.
(See Civ. Code, § 3294, subd. (a).) Because the dissent would have struck the
punitive damages award in its entirety, it did not address whether the court
correctly excluded the Brandt fees from the calculation of the maximum
permissible award.
       We granted review, limited to the following question: ―Is an award of
attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813, properly
included as compensatory damages where the fees are awarded by the jury, but
excluded from compensatory damages when they are awarded by the trial court
after the jury has rendered its verdict?‖

                                            II.

                                            A.

       In our judicial system, ―[a]lthough compensatory damages and punitive
damages are typically awarded at the same time by the same decisionmaker, they
serve distinct purposes. The former are intended to redress the concrete loss that
the plaintiff has suffered by reason of the defendant‘s wrongful conduct.
[Citations.] The latter . . . operate as ‗private fines‘ intended to punish the

                                            6
defendant and to deter future wrongdoing.‖ (Cooper Industries, Inc. v.
Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432 (Cooper Industries).)
       ― ‗Punitive damages have long been a part of traditional state tort law‘ ‖
(Pacific Mutual Life Insurance Co. v. Haslip (1991) 499 U.S. 1, 15 (Haslip)), and
the states have ―broad discretion‖ with respect to their imposition (Cooper
Industries, supra, 532 U.S. at p. 433). But because a state‘s system for awarding
punitive damages may ―deprive a defendant of ‗fair notice . . . of the severity of
the penalty that a State may impose‘ ‖ and ―threaten ‗arbitrary punishments,‘ ‖ the
United States Supreme Court ―has found that the Constitution imposes certain
limits, in respect both to procedures for awarding punitive damages and to
amounts forbidden as ‗grossly excessive.‘ ‖ (Philip Morris USA v. Williams
(2007) 549 U.S. 346, 352–353 (Williams).)
       The court has concluded that the due process clause of the Fourteenth
Amendment requires states to, among other things, provide for judicial review of
the size of a punitive damages award. Such review, the court has explained, ―has
been a safeguard against excessive verdicts for as long as punitive damages have
been awarded,‖ reflecting the view that a decision to ―punish a tortfeasor by means
of an exaction of exemplary damages . . . should not be committed to the
unreviewable discretion of a jury.‖ (Honda Motor Co. v. Oberg (1994) 512 U.S.
415, 421, 434–435 (Oberg).)
       In a series of cases culminating in Gore, supra, 517 U.S. 559, the court
developed a set of substantive guideposts that reviewing courts must consider in
evaluating the size of punitive damages awards: ―(1) the degree of
reprehensibility of the defendant‘s misconduct; (2) the disparity between the actual
or potential harm suffered by the plaintiff and the punitive damages award; and
(3) the difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.‖ (State Farm, supra, 538
                                          7
U.S. at p. 418, citing Gore, at p. 575.) A trial court conducts this inquiry in the
first instance; its application of the factors is subject to de novo review on appeal.
(State Farm, at p. 418.)
       Primarily at issue in this case is the second of the Gore guideposts, the
disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award. As the United States Supreme Court has explained,
―[t]he principle that exemplary damages must bear a ‗reasonable relationship‘ to
compensatory damages has a long pedigree.‖ (Gore, supra, 517 U.S. at p. 580.)
The court cited ―a long legislative history, dating back over 700 years and going
forward to today, providing for sanctions of double, treble, or quadruple damages
to deter and punish.‖ (State Farm, supra, 538 U.S. at p. 425, citing Gore, supra,
517 U.S. at p. 581.) Although it has declined to ―impose a bright-line ratio which
a punitive damages award cannot exceed,‖ the court, guided by this history, has
concluded that ―in practice, few awards exceeding a single-digit ratio between
punitive and compensatory damages, to a significant degree, will satisfy due
process.‖ (Id. at p. 425.) Following the high court‘s guidance, we have explained
that ―ratios between the punitive damages award and the plaintiff‘s actual or
potential compensatory damages significantly greater than 9 or 10 to 1 are suspect
and, absent special justification . . . , cannot survive appellate scrutiny under the
due process clause.‖ (Simon, supra, 35 Cal.4th at p. 1182.)

                                          B.

       The controversy between the parties in this case stems from a trial court‘s
postverdict award of Brandt fees to the prevailing plaintiff. In Brandt, we 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. (Brandt, supra, 37 Cal.3d at p. 815.) We


                                           8
explained that when an insurer breaches the implied covenant of good faith and
fair dealing by failing to compensate the insured for a loss covered by the policy,
― ‗the insurer is ―liable for any damages which are the proximate result of that
breach.‖ [Citation.]‘ [Citation.]‖ (Id. at p. 817.) ―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.‖ (Ibid.) We distinguished the recovery of these
fees ―from recovery of attorney‘s fees qua attorney‘s fees, such as those
attributable to the bringing of the bad faith action itself,‖ explaining that such fees
―are recoverable as damages resulting from a tort in the same way that medical
fees would be part of the damages in a personal injury action.‖ (Ibid.)
       Because ―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, citing Dinkins v. American
National Ins. Co. (1979) 92 Cal.App.3d 222, 234.) But we noted that ―[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 [citation], and proof that otherwise would have
been presented to the jury could be simplified because of the court‘s expertise in
evaluating legal services.‖ (Brandt, supra, 37 Cal.3d at pp. 819–820.) Consistent
with that suggestion, the trial court in this case accepted the parties‘ pretrial
stipulation that if Nickerson were to succeed on his bad faith claim against
Stonebridge, the court would determine the amount of attorney fees to which
Nickerson was entitled under Brandt. After trial, the parties stipulated that the
amount of attorney fees to which Nickerson was entitled was $12,500, and the
court awarded that amount. The question is whether this amount may be included
                                           9
in the calculation of the ratio of punitive damages to compensatory damages for
the purpose of determining whether, and by what amount, the jury‘s $19 million
punitive damages award exceeds constitutional limits.

                                         III.

       Nickerson argues, and Stonebridge does not dispute, that Brandt fees
ordinarily qualify as compensatory damages for purposes of applying the second
Gore guidepost. We agree. That conclusion follows from Brandt itself, which
held that such fees are recoverable precisely because they ―are an economic loss
— damages — proximately caused by the tort . . . in the same way that medical
fees would be part of the damages in a personal injury action.‖ (Brandt, supra, 37
Cal.3d at p. 817; see Major v. Western Home Ins. Co., supra, 169 Cal.App.4th at
p. 1224 [―[T]he amount of the jury‘s award of Brandt fees . . . may be properly
considered . . . in determining if the ratio of punitive damages to the tort damages
award is excessive.‖].)
       Stonebridge counters, however, that when a trial court determines Brandt
fees after the jury has already rendered its punitive damages verdict, the fees may
not be considered in calculating the punitive-compensatory ratio. Stonebridge
reasons that the purpose of the three-factor analysis set out in Gore is to permit
courts to identify punitive damages awards that are tainted by irrational or
arbitrary jury decisionmaking, and ―[o]nly evidence that was presented to the jury
properly has a role in that inquiry.‖ Thus, Stonebridge submits, ―review of an
award of punitive damages must be based only on the evidence that was presented
to the jury‖ and must exclude the Brandt fees determined after the jury rendered
its verdict in this case.
       To the extent Stonebridge is concerned about the jury‘s ability to render a
rational punitive damages verdict without having heard evidence of the Brandt


                                         10
fees, the rule Stonebridge urges us to adopt seems a rather roundabout way of
getting at the problem. But although Stonebridge does raise a more direct
argument that the jury‘s verdict was invalid from the moment it was rendered
because the jury was unaware of a substantial component of the harm that plaintiff
had suffered, Stonebridge gives this argument little more than a passing nod. That
is presumably because Stonebridge itself invited this state of affairs when it
stipulated to a postverdict determination of Brandt fees and raised no objection to
the jury returning a punitive damages verdict in the absence of evidence about the
fees. Having thus consented to, or at least acquiesced in, this procedure,
Stonebridge has forfeited any argument that the procedure itself was legally
impermissible. Stonebridge is now left in the position of arguing that the
procedure nevertheless caused the jury to act irrationally, and that it is the duty of
the reviewing courts to suss out that irrationality in applying the second Gore
guidepost.
       Whatever the merits of the underlying premise of the argument, the
argument fails because it misconceives the nature of the Gore inquiry. As noted,
the due process clause imposes both procedural and substantive limitations to curb
arbitrary punitive damages awards. (Williams, supra, 549 U.S. at pp. 352–353.)
Relevant procedural limitations include certain constraints on the jury‘s
decisionmaking process. For example, the jury must be adequately informed of
the nature and purposes of punitive damages in order to ―reasonably
accommodate[]‖ the defendant‘s ―interest in rational decisionmaking.‖ (Haslip,
supra, 499 U.S. at p. 20.) Stonebridge relies heavily on these and other similar
references to rational jury decisionmaking in arguing that application of the
second Gore guidepost must be limited to facts that were before the jury when it
rendered its verdict. (See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105, 109,
114 [holding, as a matter of state law, that evidence of a defendant‘s financial
                                          11
condition is a prerequisite to an award of punitive damages, and that such evidence
must appear in the record on appellate review, because, among other things,
―absent financial evidence, a jury will be encouraged (indeed, required) to
speculate as to a defendant‘s net worth in seeking to return a verdict that will
appropriately punish the defendant‖].)
       But Gore is a fundamentally different type of safeguard. Although the
Gore inquiry, too, serves to prevent arbitrary punitive damages awards, it does not
perform this function by regulating the jury‘s decisionmaking process. The Gore
guideposts are framed neither as rules of trial procedure nor as model jury
instructions. Rather, recognizing that postverdict judicial review is an essential
step in a state‘s ultimate determination of the amount of a punitive damages award
(see Oberg, supra, 512 U.S. at pp. 434–435), Gore prescribes a set of rules for
reviewing courts to apply in order to ensure that the state ultimately does not
impose an award whose size exceeds constitutional limits (Gore, supra, 517 U.S.
at pp. 574-575).
       Although the Gore guideposts overlap to some extent with questions juries
are generally asked to consider in fixing punitive damages awards, the question for
courts applying the guideposts is not whether the jury‘s ―verdict is unreasonable
based on the facts.‖ (Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204,
214.) Rather, as in other contexts in which courts review civil and criminal
sanctions for constitutional excessiveness, courts applying the Gore guideposts
make an independent determination whether the amount of the award exceeds the
state‘s power to punish. (Ibid.; see Cooper Industries, supra, 532 U.S. at pp. 433–
440, citing cases.) Should a reviewing court conclude that the jury‘s punitive
damages award is excessive, the remedy is not to set the award aside — as the
court would if it determined that the jury‘s decisionmaking process was tainted by
bias or prejudice (see, e.g., Weathers v. Kaiser Foundation Hospitals (1971) 5
                                         12
Cal.3d 98, 110) or by confusion about the question to be answered (see, e.g.,
Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 465) — but to reduce
the award to constitutional limits (Simon, supra, 35 Cal.4th at p. 1187).
       Because the Gore guideposts are designed to govern postverdict judicial
review of the amount of a jury‘s award, not the adequacy of the jury‘s deliberative
process, there is no apparent reason why a court applying the second guidepost
may not consider a postverdict compensatory damages award in its constitutional
calculus. Indeed, in Gore itself, the United States Supreme Court‘s application of
the guideposts touched on matters of which the jury could not have been aware
when it rendered its punitive damages verdict. (See Gore, supra, 517 U.S. at
p. 579, fn. 31 [noting the defendant‘s postverdict conduct in evaluating the
reprehensibility of the defendant‘s actions under the first guidepost].) And as
Stonebridge itself conceded in its brief, the third guidepost, concerning available
sanctions for comparable misconduct, is by its nature a question aimed at
reviewing courts, rather than juries. (See Cooper Industries, supra, 532 U.S. at
p. 440 [the third guidepost ―calls for a broad legal comparison‖ suited to the
expertise of appellate courts]; cf. Gore, supra, 517 U.S. at pp. 583–584 [reviewing
the civil penalties available under the consumer protection laws of several states
before concluding that the punitive damages award at issue was ―substantially
greater than the statutory fines available in Alabama and elsewhere for similar
malfeasance‖].) That concession critically undermines the notion that Gore‘s
purpose is to suss out jury irrationality by limiting judicial review to matters
presented to, and considered by, the jury.
       It is true, as Stonebridge notes, that the comparison between compensatory
and punitive damages requires evidence of those damages, whereas the legal
comparison required under the third guidepost is not ―an evidentiary matter.‖ It is
also true, as Stonebridge notes, that appellate courts applying the Gore guideposts
                                          13
must defer to evidentiary findings made by the trier of fact. (See Cooper
Industries, supra, 532 U.S. at p. 440, fn. 14.) Indeed, appellate courts performing
any appellate function must defer to evidentiary findings made by the trier of fact;
such is the nature of appellate review. (See, e.g., People v. Cromer (2001) 24
Cal.4th 889, 893–894.) But it does not follow, as Stonebridge appears to reason,
that Gore limits an appellate court to considering facts considered by juries in
applying the second guidepost. Indeed, as Stonebridge acknowledges, our
decision in Simon, supra, 35 Cal.4th at page 1173, recognized that a reviewing
court applying the second Gore guidepost may consider not only the
compensatory damages actually awarded by the jury, but also the ―potential harm‖
suffered by the plaintiff, even though the jury was never asked to consider
potential harm in rendering its verdict. It may be true, as Stonebridge says, that a
reviewing court‘s consideration of potential harm will ordinarily be based on
evidence presented to the jury at trial. But it is not clear why judicial review
should be more constrained where, as here, the parties have agreed to submit an
element of the plaintiff‘s harm to the trial court for resolution. An appellate court
that takes the resulting trial court determination into account does not transgress
the normal appellate role; rather, it properly defers to findings made by the trier of
fact designated by the parties to resolve the issue.
       We acknowledge Stonebridge‘s concerns about the effect of the jury‘s
ignorance of the Brandt fees on the course of the punitive damages proceedings.
Of course, had the jury heard evidence that Nickerson suffered even more harm




                                          14
than it had previously thought, the jury might well have decided to punish
Stonebridge even more harshly. On the other hand, as Stonebridge says,
presentation of evidence concerning the Brandt fees could have enabled counsel to
argue that the Brandt fees, too, would have a deterrent effect on future
misconduct, and to make a pitch to reduce the punitive damages award
accordingly. In the end, this is the bargain Stonebridge made when it stipulated to
posttrial determination of the Brandt fees, then raised no objection to submitting
the punitive damages issue to the jury in the absence of evidence relating to the
fees. Stonebridge cannot now attempt to leverage that bargain into a truncated
application of the Gore guideposts.
       In sum, we find no reason to exclude the amount of Brandt fees from the
constitutional calculus merely because they were determined, pursuant to the
parties‘ stipulation, by the trial court after the jury rendered its punitive damages
verdict. On the contrary, to exclude the fees from consideration would mean
overlooking a substantial and mutually acknowledged component of the insured‘s
harm. The effect would be to skew the proper calculation of the punitive-
compensatory ratio, and thus to impair reviewing courts‘ full consideration of
whether, and to what extent, the punitive damages award exceeds constitutional
bounds.2




2     The decision in Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182
Cal.App.4th 1538, is disapproved to the extent it is inconsistent with this holding.


                                          15
                                       IV.

      The judgment of the Court of Appeal is reversed and the matter is
remanded to the Court of Appeal for further proceedings consistent with this
decision.
                                                KRUGER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.




                                       16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Nickerson v. Stonebridge Life Insurance Company
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 219 Cal.App.4th 188
Rehearing Granted

__________________________________________________________________________________

Opinion No. S213873
Date Filed: June 9, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Mary Ann Murphy

__________________________________________________________________________________

Counsel:

Shernoff Bidart Echeverria Bentley, William M. Shernoff, Howard S. Shernoff, Travis M. Corby; The
Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.

The Arkin Law Firm, Sharon J. Arkin; Amy Bach; Knapp & Roberts and David L. Abney for United
Policyholders as Amicus Curiae on behalf of Plaintiff and Appellant.

Baute Crochetiere & Wang, Lee Tran Liang & Wang, David P. Crochetiere, Henry C. Wang; Reed Smith,
Margaret M. Grignon and Zareh A. Jaltorossian for Defendant and Respondent.

Shook, Hardy & Bacon, Mark A. Behrens, Christopher E. Appel and Kevin Underhill for American Tort
Reform Association, National Association of Mutual Insurance Companies and Property Casualty Insurers
Association of America as Amici Curiae on behalf of Defendant and Respondent.

Mayer Brown and Donald M. Falk for The Chamber of Commerce of the United States of America as
Amicus Curiae on behalf of Defendant and Respondent.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey Isaac Ehrlich
The Ehrlich Law Firm
16130 Ventura Boulevard, Suite 610
Encino, CA 91436
(818) 905-3970

Margaret M. Grignon
Reed Smith
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
(213) 457-8000
