Insurance Update

September 20, 2021 | Insurance Coverage

September.  Synonymous with back to school, the end of summer, and the start of the NFL season.  And while the Cowboys and Bucs kicked off the season this year, another epic battle was brewing out west in the corridors of the Ninth Circuit.

The public policy in most states is to enforce arbitration agreements in contracts.  But some states have enacted statutes that prevent enforcement of arbitration clauses when they appear in insurance policies.  Generally, matters of insurance are left to the states.  So, a state law on an insurance issue will “reverse preempt” a conflicting federal law, unless that federal law specifically relates to the business of insurance.  But what about when a state anti-arbitration statute runs up against an international treaty calling for arbitration?  Does reverse preemption apply in that case?   That was the issue recently taken up by the Ninth Circuit.

The contest set up a head-to-head matchup between the treaty, known as “the Convention,” and the McCarran-Ferguson Act.  In football parlance, would the Convention’s wildcat offense keep its opponent off-balance, or would the screen play anchored by the MFA give the Washington state statute a path to the end zone?

You can tune in here for a summary of the action.  And while you’re there, you might want to check in on some of the other contests playing out in federal venues.

For example, the Eleventh Circuit becomes the second federal circuit court of appeals to rule on pandemic-related business interruption claims.

The Ninth Circuit addresses whether an insurer’s right to reimbursement of defense costs is thwarted by illegal procedure.

The Eighth Circuit wades through coverage schemes raised by a wrongful garnishment claim.

The Fifth Circuit whistles a false start on a claims-made issue and considers whether “pass-ive” interference alone is enough to invoke a property damage exclusion.

Finally, a Texas federal district court decides whether a contaminated stormwater runoff claim is taken down by the pollution exclusion.

Let the tailgating begin!

Rob Tugander and Greg Mann

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