Illinois Union Insurance Company v. Intuitive Surgical, Inc.

Filing 247

STIPULATION AND ORDER re 218 STIPULATION WITH PROPOSED ORDER Re Brandt Fees Allocation and Award filed by Intuitive Surgical, Inc. Signed by Judge Jon S. Tigar on May 21, 2017. (wsn, COURT STAFF) (Filed on 5/22/2017)

1 ALLEN RUBY (SBN 47109)
RAOUL D. KENNEDY (SBN 40892)
2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
525 University Avenue, Suite 1400
3 Palo Alto, CA 94301
Telephone: [phone]
4 Facsimile: [phone]
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiff/Defendant
INTUITIVE SURGICAL, INC.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

11 ILLINOIS UNION INSURANCE COMPANY, an
Illinois corporation,
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Plaintiff,
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v.
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INTUITIVE SURGICAL, INC., a Delaware
15 corporation,
Defendant.

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17 INTUITIVE SURGICAL, INC.,
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Plaintiff,
v.

20 ILLINOIS UNION INSURANCE COMPANY, an
Illinois Corporation; NAVIGATORS SPECIALTY
21 INSURANCE CO., a New York Corporation,
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Defendants.

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CASE NO.: 3:13-CV-04863-JST
JOINT STIPULATION RE: BRANDT
FEES ALLOCATION AND AWARD;
and
[PROPOSED] ORDER.
Complaint Filed: October 21, 2013
Judge:
Honorable Jon S. Tigar
Trial Date: June 19, 2017
CASE NO. 3:15-cv-04834-JST
Complaint Filed: October 20, 2015

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JOINT STIPULATION RE: BRANDT FEES ALLOCATION AND AWARD

CASE NO. 3:13-CV-04863-JST

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Intuitive Surgical, Inc. (“Intuitive”) and Illinois Union Insurance Company (“Illinois Union”)

2 jointly stipulate, pursuant to Civil Local Rules 6-1(b), 6-2, and 7-12, that, (1) in the event Intuitive
3 prevails on its bad faith claim, the Court will determine the amount of attorney fees to which
4 Intuitive is entitled under Brandt v. Superior Court (“Brandt”), 37 Cal. 3d 813 (1985),
5 (2) documents related to Brandt fees shall be produced after trial, and (3) the parties will jointly
6 propose deadlines relating to any allocation and award of Brandt fees after trial in this action
7 concludes.
8

WHEREAS, in Brandt the California Supreme Court held that “when an insurance company

9 withholds policy benefits in bad faith, attorney fees reasonably incurred to compel payment of the
10 benefits are recoverable as an element of the plaintiff’s damages.” Nickerson v. Stonebridge Life
11 Ins. Co., 63 Cal. 4th 363, 373 (2016) (citing Brandt, 37 Cal. 3d at 819);
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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.

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

23 faith and fair dealing claim against Illinois Union;
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WHEREAS, the deadline for all fact discovery was initially set for November 10, 2016 (Dkt.

25 186); and
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WHEREAS, the parties then stipulated, and the Court subsequently ordered, that to the extent

27 Intuitive produces any evidence supporting Brandt fees, including legal bills, invoices, or receipts,
28 such evidence need not be produced until May 19, 2017 (30 days before trial) (Dkts. 197, 198).
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JOINT STIPULATION RE: BRANDT FEES ALLOCATION AND AWARD

CASE NO. 3:13-CV-04863-JST

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

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•

in the event that Intuitive succeeds on its bad faith claim at trial, the Court will

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determine a postjudgment allocation and award of recoverable fees to which Intuitive

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is entitled under Brandt;

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•

within 20 days after a verdict in the jury trial in this action, the parties will (1) meet

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and confer, and (2) jointly propose to the Court expert disclosure deadlines and a

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briefing schedule relating to the Brandt fee issue; and

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•

the May 19, 2017 deadline for the production of evidence supporting Brandt fees is
extended until 30 days after a verdict in the jury trial in this action.

The parties’ proposed time modifications would impact the deadlines in Case No. 3:13-cv-

11 04863-JST as follows:
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Event

Current
Schedule
N/A

Parties to Jointly Propose to the Court
Expert Disclosure Deadlines and a Briefing
Schedule Relating to Brandt Fees
Deadline to Produce Evidence Supporting
Brandt Fees

5/19/2017

New Schedule
20 days after a verdict in the
jury trial
30 days after a verdict in the
jury trial

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DATED: May 5, 2017

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

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By:

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/s/ Allen Ruby
Attorneys for Plaintiff
INTUITIVE SURGICAL, INC.

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DATED: May 5, 2017

COZEN O’CONNER
By:

/s/ Charlie Wheeler
Attorneys for Defendant
ILLINOIS UNION INSURANCE COMPANY

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Pursuant to Civil Local Rule 5-1(i), the filer attests that concurrence in the filing of this

27 document has been obtained from the signatories above.
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/s/ Allen Ruby
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JOINT STIPULATION RE: BRANDT FEES ALLOCATION AND AWARD

CASE NO. 3:13-CV-04863-JST

1

[PROPOSED] ORDER

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PURSUANT TO THE FOREGOING STIPULATION OF THE PARTIES, IT IS

3 ORDERED THAT:
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(1)

In the event that Intuitive succeeds on its bad faith claim at trial, the Court will

5 determine a postjudgment allocation and award of recoverable fees to which Intuitive is entitled
6 under Brandt v. Superior Court (“Brandt”), 37 Cal. 3d 813 (1985);
7

(2)

The parties will meet and confer within 20 days after a verdict in the jury trial in this

8 action and jointly propose to the Court expert disclosure deadlines and a briefing schedule relating to
9 the Brandt fee issue; and
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(3)

The May 19, 2017 deadline for the production of evidence supporting Brandt fees is

11 extended until 30 days after a verdict in the jury trial in this action.
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The prior deadlines in Case No. 3:13-cv-04863-JST are amended as follows:
Event

Current
Schedule
N/A

Parties to Jointly Propose to the Court
Expert Disclosure Deadlines and a Briefing
Schedule Relating to Brandt Fees
Deadline to Produce Evidence Supporting
Brandt Fees

5/19/2017

New Schedule
20 days after a verdict in the
jury trial
30 days after a verdict in the
jury trial

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20 DATED: May _21__, 2017

By:

The Honorable Jon S. Tigar
United States District Court Judge

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1

[PROPOSED] ORDER RE: BRANDT FEES ALLOCATION AND AWARD

CASE NO. 3:13-CV-04863-JST