‘Playing With Fire’ Case Resolved, $2 Million Paid Under $100,000 Policy

April 30, 2007

In a unique settlement, heretofore unprecedented under California law, a young Riverside boy, severely injured in an automobile accident is to receive over two (2) million dollars pursuant to a policy issued by Amex Assurance Company, a subsidiary of American Express. The policy provided only $100,000 in coverage.

This result was obtained when the carrier disclosed to the injured boy’s lawyer that it had a policy to refuse to disclose the dollar limits on a policy issued to a motorist. Ultimately described by an appellate court as “playing with fire,” Amex’s refusal to disclose its insureds’ policy limits led to a breakdown in settlement negotiations and ultimately to a refusal by Levi Boicourt, the plaintiff and his then attorney, James DiCesare, to accept the policy limits of $100,000.

The published opinion in Boicourt v. Amex Assurance Company Co. (2000) 78 Cal.App.4th 1390, 93 Cal.Rptr.2d 763, 2000 Daily Appellate Report 2785 arising after a motion for summary judgment broke precedence with a commonly held belief that a settlement offer within policy limits was a prerequisite to a bad faith action and held that the refusal to disclose policy limits “may have foreclosed a possible settlement of the underlying claim within those limits.” At the time it was released, this appellate decision was widely reported in the legal press as a significant extension of consumers’ rights in California.

The matter was then returned to the trial court for further proceedings. With a trial pending and another motion for summary judgment pending, the matter was resolved after a mediation and two mandatory settlement conferences for $2,006,000.00 which included the original policy limits and a sum to resolve a medical lien claim. The ultimate settlement was twenty (20) times the original policy limits and is believed to be the first actual payment without a formal demand and under the legal theory espoused in the Boicourt decision.

“I could not be more pleased for Levi Boicourt and his family” said lead counsel Wylie Aitken of Santa Ana, California. “Having suffered since 1990, these funds will provide some aid and comfort to Levi as he continues to deal with his partial paralysis.” “The court not only struck a blow against the abhorrent practice of playing games with policy limits to gain an unfair advantage but this settlement will further deter such conduct in the future by putting financial teeth behind this important concept!”

The Boicourt matter is but one example of Aitken * Aitken * Cohn’s long commitment to ensure that insured consumers are treated fairly by their insurance companies. Our work for many of our clients has led to the establishment of important legal rights for all Californians. If you, or someone you know, are having trouble with your insurance company, we encourage you to give us a call.