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Thursday, February 29, 2024

Insurance coverage Arbitration in Louisiana—Decide Cain Guidelines That American Insurers Can’t Compel Arbitration

Charles Cicero, Harrece Gassery, and Lucas Morehouse

Within the realm of property insurance coverage legislation, the selections of Louisiana Federal District Courtroom Decide James Cain are pivotal, significantly given his present docket brimming with hurricane-related circumstances. His judgments are poised to considerably affect the panorama of Louisiana property insurance coverage legislation for the foreseeable future. A notable occasion is his current Order,1 which rejected American insurers’ movement to compel arbitration and to implement the applying of a international state’s legislation.

This improvement underscores the need for different state legislatures to emulate Louisiana’s authorized framework. Such measures are essential to forestall policyholders from being compelled to arbitrate disputes in areas distant from the place the loss occurred. This challenge is especially prevalent in insurance policies provided by American surplus traces carriers, which insurance coverage brokers ought to strategy with warning. Promoting these insurance policies typically results in surplus traces carriers evading accountability for underpaying and delaying claims.

The case in query revolves round damages stemming from Hurricanes Laura and Delta, which struck close to Lake Charles, Louisiana. The City of Vinton initiated a lawsuit, alleging that the insurers had underpaid and unjustly delayed the adjustment of their declare. In response, the insurers invoked arbitration clauses and the applicability of New York legislation. Nevertheless, the City of Vinton efficiently argued towards compliance with these stipulations, contending that:

Louisiana legislation prohibits arbitration agreements in insurance coverage insurance policies. Louisiana’s antiarbitration legislation is contained in La. R.S. 22:868(A)(2):

A. No insurance coverage contract delivered or issued for supply on this state and overlaying topics positioned, resident, or to be carried out on this state, or any group well being or accident coverage insuring a resident of this state no matter the place made or delivered, shall comprise any situation, stipulation, or settlement both:

(2) Depriving the courts of this state of the jurisdiction or venue of motion towards the insurer.

Furthermore, La. R.S. 9:2778 prohibits provisions in a contract with a political subdivision of the state that requires an arbitration continuing to be introduced outdoors of Louisiana:

A. The legislature finds that with respect to public contracts involving the state or a political subdivision of the state, provisions in such agreements requiring disputes arising thereunder to be resolved in a discussion board outdoors of this state or requiring their interpretation to be ruled by the legal guidelines of one other jurisdiction are inequitable and towards the general public coverage of this state.

B. The legislature hereby declares null, void, unenforceable, and towards public coverage, any provision in a contract, subcontract, or buy order, as described in Subsection A, which both:

(1) Requires a swimsuit or arbitration continuing to be introduced in a discussion board or jurisdiction outdoors of this state.

(2) Requires interpretation of the settlement in keeping with the legal guidelines of one other jurisdiction.

Decide Cain’s ruling initially acknowledged the legislation on this complicated authorized challenge:

Louisiana legislation prohibits arbitration agreements in insurance coverage insurance policies overlaying property inside the state. La. R.S. § 22:868(A)(2). Underneath the McCarran-Ferguson Act, state legal guidelines regulating insurance coverage are shielded from the preemptive impact of federal legislation. 15 U.S.C. §§ 1011, 1012. Accordingly, McCarran-Ferguson permits state legal guidelines like Louisiana Revised Statute part 22:868(A)(2) to ‘reverse-preempt’ the Federal Arbitration Act’s provisions on the enforceability of insurance coverage agreements….Nevertheless, this “reverse preemption” applies solely to “Acts of Congress” and to not treaties. Security Nat’l Cas. Corp. v. Sure Underwriters at Lloyd’s, London, 587 F.3d 714, 723 (fifth Cir. 2009). The Conference on the Recognition and Enforcement of Overseas Arbitral Awards (the ‘Conference’) is one such treaty and requires signatory nations to ‘ ‘acknowledge an settlement in writing below which the events undertake to undergo arbitration’ their dispute ‘regarding a subject able to settlement by arbitration.’ ‘ Id. at 719 (quoting Conference on the Recognition and Enforcement of Overseas Arbitral Awards artwork. II(1), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3)). State insurance coverage legislation thus has no affect on arbitration agreements arising below the Conference.

If the case concerned non-American firms, the treaty conference would arguably apply, and the arbitration provision could be legitimate as a result of treaties overrule state legislation. This isn’t the case the place solely American insurers are concerned.

Decide Cain additionally dominated favorably concerning The City of Vinton’s selection of legislation argument and towards the applying of New York legislation:

Vinton additionally contends that selection of legislation on this case factors to Louisiana. Louisiana legislation requires all insurers doing enterprise in Louisiana to adjust to the Insurance coverage Code. Louisiana Revised Statute 22:12. Louisiana Revised Statute 22:868(A)(1) prohibits ‘any situation, stipulation, or ‘settlement’ in an insurance coverage contract ‘requiring it to be construed in keeping with the legal guidelines of every other state. Louisiana Revised Statute 9:2778 prohibits ‘any provision in a contract’ ‘involving … a political subdivision of the state’ that ‘requires interpretation of the settlement in keeping with the legal guidelines of one other jurisdiction.’ The Arbitration Settlement gives that ‘[t]he seat of the Arbitration shall be in New York and the Arbitration Tribunal shall apply the legislation of New York as the correct legislation of this insurance coverage,’ and additional states that ‘[t]he Arbitration Tribunal could not award exemplary, punitive, a number of, consequential, or different damages of the same nature.’ Thus, the Coverage’s language permits Insurers to avoid by contract, Louisiana’s legal guidelines that regulate how insurance coverage firms deal with first-party declare in direct contravention of this State’s legislation that should defend insureds. Louisiana Revised Statute 9:2778 prohibits any provision involving a political subdivision resembling Vinton that requires the applying of one other state’s legal guidelines.

The authorized panorama in Louisiana is at the moment ablaze with insurance coverage disputes, significantly within the wake of current hurricanes. On the forefront of those contentious battles are three devoted attorneys from the Merlin Regulation Group, based mostly in Louisiana, whose pictures are featured above.

Whereas insurance coverage firm advocates level to 1 Texas-based legislation agency whose antics have been unethical, my view is that Louisiana policyholder attorneys are setting precedents that would form the way forward for insurance coverage legislation in Louisiana and probably past. Their experience and dedication are essential in these instances when policyholders are searching for justice and truthful therapy from their insurance coverage suppliers. We have to make insurers totally accountable for fulfilling their duties of immediate and full cost in order that lawsuits should not have to be filed within the first place.

Thought For The Day  

Louisiana is like an aunt not invited to your social gathering. She reveals up anyway, drinks all of the liquor, and makes everybody uncomfortable.

—James Carville   


1 City of Vinton v. Sure Underwriters at Lloyds London, No. 2:23-cv-00240 (W.D. La. Dec. 14, 2023).

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