Aitken Redesign

By: Atticus N. Wegman

It has been over 10 years since Aitken Aitken Cohn argued Boicourt v. Amex Assurance Company (2000) 78 Cal.App.4th 1390 in the California Court of Appeal. Boicourt, a case that changed the landscape for third party insurance claims, was celebrated as a major victory across the state for victims injured at the hands of others.

Boicourt began in 1990 with Levi Boicourt, 15-years-old, who was riding as a passenger in a friend’s vehicle before it overturned causing catastrophic injuries. Before filing a lawsuit on Levi’s behalf, Aitken Aitken Cohn, wrote a letter to the driver of the vehicle’s insurance company Amex Assurance Company asking for confirmation of the vehicle’s applicable insurance policy limits. Amex Assurance Company replied that it had an internal policy not to contact its insured and ask for permission to disclose its insured’s policy limits before formal litigation. The effect of this kept Levi in the dark and unable to settle his case for the applicable policy limits. In response, Levi was forced to file a lawsuit, incur unnecessary expenses, and waste valuable time taking the case to trial.

On appeal and after oral argument, the Court agreed with Aitken Aitken Cohn and found in Levi Boicourt’s favor. The Court noted that Amex Assurance Company and other insurance companies have a selfish interest in failing to disclose applicable policy limits. The Court explained that the insurer can be held to have breached the law to operate in good faith and fair dealing where no formal settlement offer was made and because the insurance company refused to contact the policyholder to release the applicable policy limits, the claimant was forced to obtain an excess judgment.

The Court of Appeal stated that by forcing the claimant, in this case Levi Boicourt, to make an offer to settle his case without knowing the applicable insurance policy limits, the insurance company had a negotiating advantage. The Court likened this advantage to the same “tactical one-upmanship” that baseball managers try to obtain when they put in a right-handed pitcher to face a right handed hitter or when football captains elect to receive the ball after winning the coin toss. As the Court explained “It doesn’t always win the game, but it gives the player a slight edge in the competition.”

As such, by obtaining a successful decision in the Boicourt case, Aitken Aitken Cohn helped level the playing field when it comes to negotiating claims against insurance companies. Boicourt is now viewed as a landmark victory and precedent-setting decision for those negotiating with insurance companies in California.