Amicus Curiae Briefs

Amicus Curiae (Friend of the Court) Briefs

Name	Case Number	Date	Court	Description
1999
USA v. Allen W. Stewart	98-1260, 98-1302, 98-1541, 98-1716, 98-1860	2/10/99	U.S. Ct. App., Third Circuit	Amicus brief in support of federal prosecution of defendant. Brief argued in support of position that McCarran-Ferguson does not preempt federal RICO, mail and wire fraud statutes.
National Warranty Insurance Company, RRG v. Greenfield (Oregon)	98-36054	3/25/99	U.S.Ct. App., 9th Circuit	Amicus brief in support of the Oregon DOI's position that states have a right to prohibit companies that are not protected by a guaranty fund from insuring service contracts.
McCarty, et al. v. Brown, et al.	99-292	7/99 apx	U.S. Supreme Ct.	Amicus brief in support of Insurance Commissioner of Indiana. Brief argued that a Louisiana state court should be required to give full faith and credit to the anti-suit injunctive provisions of an Indiana order of liquidation against an Indiana-domiciled insurance company.
USA v. Pace	98-10521	07/14/99	U.S. Ct. App. 9th Cir.	Amicus brief in support of federal prosecution of defendant. Brief argued in support of position that McCarran-Ferguson does not preempt federal RICO, mail and wire fraud statutes.
2000
Avery, et al v. State Farm Mutual	88853	01/31/00	Illinois Supreme Court	Amicus brief in support of State Farms' motion for direct appeal to the Illinois Supreme Court from a $1B jury verdict in favor of a nationwide class. This class action case concerned the use of aftermarket automobile parts in vehicle repairs. Plaintiffs alleged breach of contract and statutory fraud under Illinois law. The issue briefed concerned the extraterritorial application of Illinois law to insurance transactions occurring in other states, potentially overriding those states' policy judgments in contravention of statutory law and judicial precedent. The court denied the NAIC's motion to file this brief.
Farrimond v. Fisher	93564	01/28/00	Oklahoma Supreme Ct.	Amicus brief in support of the Insurance Commissioner of the State of Oklahoma. This case involved a receivership action in Oklahoma. The brief argued that documentation in receivership estates should not be subject to state's Open Records laws.
Avery, et al v. State Farm Mutual	5-99-0830	05/08/00	Appellate Ct of Ill., 5th Dist	Amicus brief in support of State Farm's appeal of a $1B jury verdict in favor of a nationwide class. This class action case concerned the use of aftermarket automobile parts in vehicle repairs. Plaintiffs alleged breach of contract and statutory fraud under Illinois law. The issue briefed concerned the extraterritorial application of Illinois law to insurance transactions occurring in other states, potentially overriding those states' policy judgments in contravention of statutory law and judicial precedent.
Texas Department of Insurance (Montemayor), et al. v. Corporate Health Insurance, Inc., et al.	00-665	11/01/00	U.S. Supreme Ct.	Amicus brief in support of the Texas Department of Insurance. Case involved a question of whether sections of the Texas' Patient Protection Act dealing with independent review organizations are preempted by ERISA. The central issue is whether a state law regulating insurance that is saved under the ERISA savings clause is nevertheless preempted if it conflicts with the remedy provision pursuant to ERISA Section 502(a).
Neidig (Oregon) v. National Warranty Insurance Company, RRG	00-686	11/30/00	U.S. Supreme Ct	Amicus brief in support of the Oregon Department of Consumer and Business Affairs. Same case as Nat'l Warranty v. Greenfield described in 1999 above. Brief filed in support of writ for certiorari.
2001
Hill, et al. v. State Farm Mutual	B-133262	03/15/01	Calif. Ct. App.	Filed letter in lieu of an amicus brief asking the court to hear the appeal. Plaintiffs sought remedy that included distribution of insurer's excess surplus. Issue addressed is the importance of solvency regulation and the role of state insurance regulators in determining the adequacy of surplus.
United States of America, et al. v. Peoples Benefit Life, et al.	00-6360 (L)	4/26/01 apx	U.S. Ct. App. 2nd Cir	Amicus brief in support of receivers of First National Insurance Company. Two companies were attempting to intervene in forfeiture actions to pursue separate reinsurance claims against the assets of a failed insurer. NAIC supported the position of the receivers that these claims should be handled in the state receivership proceeding.
Avery, et al v. State Farm Mutual	91494	05/15/01	Illinois Supreme Court	Amicus brief in support of State Farm's motion for leave to file an appeal of a $1B jury verdict in favor of a nationwide class. This class action case concerned the use of aftermarket automobile parts in vehicle repairs. Plaintiffs alleged breach of contract and statutory fraud under Illinois law. The issue briefed concerned the extraterritorial application of Illinois law to insurance transactions occurring in other states, potentially overriding those states' policy judgments in contravention of statutory law and judicial precedent. The Court denied the NAIC's motion to file this brief.
Busani v. USAA	70816-9	5//15/01	Sup. Ct. of State of Washington	Amicus brief in support of the petitioner United Services Automobile Association seeking discretionary review of class action certification on the question of whether underinsured motorist (UIM) coverage imposed a duty disclose to its insureds that they might have claims for so-called inherent diminished value (IDV). The issue briefed was the extraterritorial application of Washington law to insurance transactions occurring in other states in contravention of established principles of constitutional and regulatory law.
Azar (New Mexico), et al. v. Prudential Insurance Company of America	A-0001-CA-2001-22133	07/01/01	Court Appeals, State of New Mexico	Amicus brief in support of Prudential in case involving insurer's alleged failure to adequately disclose modal premium factor to policyholders. Issue briefed focused on the potential extraterritorial effect of New Mexico state court decision on the regulatory authority and policyholder rights in other states.
State Farm Mutual and Gramm v. Lopez, et al.	01-0540	07/30/01	Texas Supreme Court	Filed letter in lieu of amicus brief to address the importance of solvency regulation and the role of state insurance regulators in determining the adequacy of an insurers surplus. See Hill v. State Farm above.
Rylander, et al. v. Dow Chemical Company	01-442	10/01/01	U.S. Supreme Ct.	Amicus brief in support of the Texas DOI writ of certiorari. The issue briefed is the appropriateness of assessing premium tax on an allocated basis on policies issued outside the state but covering property located in the state.
Covington v. Ohio General Insurance Co.	01 APE-02-0213	10/19/01	Ohio Supreme Ct	Amicus brief in support of receiver's motion for the Supreme Court of Ohio to take jurisdiction over an appeal. The issue to be appealed is that it is not appropriate to grant policy holder priority status to an insurer's claim against a reinsurer in liquidation.
Allstate Insurance Company v. Byron and Strasen, et al	92533	10/10/01	Sup. Ct. of Illinois	Amicus brief in support of Allstate Insurance Company. This matter involved a nationwide class action alleging breach of contract under Illinois law. The case principally concerned Allstate’s use of computer reviews as part of its Medical Bill Review System (MBRS), which is utilized, in part, to evaluate medical claims submitted under automobile insurance policies. The application of Illinois law to purported MBRS-related claims in other states would replace the policy judgments of other states with that of the trial court in contravention of established principles of constitutional and regulatory law.
Rush Prudential HMO, Inc. v. Moran and State of Illinois	00-1021	11/01/01	U.S. Supreme Ct	Case involved question of whether provision of Illinois HMO Act is preempted by ERISA in that the state law relates to employee benefit plans and therefore does not constitute regulating the business of insurance per the ERISA savings clause. (Two briefs were prepared: first brief is on writ, second on merits). This one is on Writ.
Rush Prudential HMO, Inc. v. Moran and State of Illinois	00-1021	11/01/01	U.S. Supreme Ct	Case involved question of whether provision of Illinois HMO Act is preempted by ERISA in that the state law relates to employee benefit plans and therefore does not constitute regulating the business of insurance per the ERISA savings clause. (Two briefs were prepared: first brief is on writ, second on merits). This one is on merits
2002
Covington v. Lucia, et al.	02APE01-51	02/21/02	Ct of App., 10th Appellate District, State of Ohio	Amicus brief filed in support of the receiver's position that in pursuing claim against a former officer of a failed insurer, receiver should not be bound by arbitration provision in employment contract between the insurer and the former officer.
South Carolina DOI v. Liberty Life Ins. Co.	01-ALJ-09-0585-CC	03/05/02	So. Carolina Administrative Law Judge Div	Amicus brief in favor of SC DOI assessing fine against insurance company. The issue briefed is the application of federal civil rights laws to the insurance business.
Berry v. Federal Kemper Life Assur. Co.	D-0101-CV-2000-2602	04/01/02	1st Judicial Dist of Santa Fe NM	Amicus brief filed in opposition to motion for class certification. Issue briefed is the nationwide class action certification would be inappropriate because state laws governing disclosure of model premium rates as well as policyholder right to remedies differ from state to state; certification would defeat regulators' ability to regulate according to respective state laws. Motion for leave to file brief denied.
IIAA & NAPIA v. Hawke	1: 01CV02356 EGS	04/03/02	U.S. Dist. Ct. for D.C.	Amicus brief filed in support of the position of the Massachusetts Commissioner of Insurance and Commissioner of Banks. Respondent is the Office of the Comptroller of the Currency Comptroller had issued an opinion letter taking the position that several provisions of West Virginia law, as applied to certain national bank insurance activities, were preempted. The principal issue briefed concerned the "prevent or significantly interfere" threshold codified by GLBA as the preemption standard respecting such laws.
Association of Banks in Insurance, et al. v. Harold T. Duryee and Independent Ins. Agents of Ohio, Inc. et al	C2-98-1120	04/15/02	U.S. Dist. Ct. for the Southern Dist. Of Ohio, Eastern Division	Amicus brief filed in support of the Ohio Department of Insurance and taking a position against preemption of Ohio corporate licensing requirements by provisions of GLBA. The principal issue briefed concerned the "prevent or significantly interfere" threshold codified by GLBA as the preemption threshold.
Florida Department of Insurance v. Chase Bank of Texas National Association	01-1472	05/08/02	U.S Supreme Court	Amicus brief filed in support of Florida Department of Insurance Petition for Certiorari in the United States Supreme Court. Florida DOI sought review of a Fifth Circuit ruling that receiver did not have standing to represent the policyholders (and other claimants) in the estate of an insolvent insurer. The Receiver’s underlying case seeks to recover the $5.4 million certified by the Trustee of an NAIC Trust as the market value of the assets held for the benefit of U.S. policyholders of the insolvent insurer. The NAIC joined the Amicus Brief of the California Department of Insurance.
Covington v. Ohio General Insurance Co.	01-1874	04/10/02	Ohio Supreme Ct	Amicus brief in support of Ohio Superintendent of Insurance acting as receiver for . Brief takes the position that it is not appropriate to grant policy holder priority status to reinsurance claims.
Hill, et al. v. State Farm Mutual	BC 194 491	05/24/02	California Superior Court	Amicus brief in support of State Farm's Motion to Dismiss. The issue briefed is the primary role of the domicile state in the regulation of the financial and solvency aspects and corporate affairs of their domestic insurers.
Bowler (MA) v. Hawke (OCC)	No. 02-1738	07/02/02	U.S. Court of Appeals, First Circuit	Amicus brief filed in support of the Massachusetts Division of Insurance. As in amicus briefs filed in Independent Insurance Agents of America v. Hawke and Association of Banks in Insurance, Inc. v. Duryee, the NAIC argued that the First Circuit should affirm the "prevent or significantly interfere" standard set forth by Congress in GLBA with respect to the preemption of certain state laws.
Cline v. Hawke	No. 2-2100	10/18/02	U.S. Court of Appeals, Fourth Circuit	Amicus brief in support of the West Virginia Insurance Commission. As in amicus briefs filed in Independent Insurance Agents of America v. Hawke, Association of Banks in Insurance, Inc. v. Duryee, and Cline v Hawke, the NAIC argued that the Fourth Circuit should affirm the "prevent of significantly interfere" standard set forth by Congress in GLBA with respect to the preemption of certain state laws.
BCBS of Kansas, Inc. v. Kathleen Sebelius and Anthem Insurance Companies, Inc. v. Kathleen Sebelius	No. 02-89075-AS	11/25/02	Kansas Sup. Ct	Amicus Brief filed in support of Kansas Department of Insurance concerning scope of commissioner's discretion under the Holding Company Act. The issue briefed is the authority of the commissioner to exercise discretion and consider post-acquisition conduct.
Avery, et al v. State Farm Mutual	No. 91494	11/06/02	Sup. Court Illinois	Amicus brief in support of State Farm's appeal of a $1B jury verdict in favor of a nationwide class. This class action case concerned the use of aftermarket automobile parts in vehicle repairs. Plaintiffs alleged breach of contract and statutory fraud under Illinois law. The issue briefed concerned the extraterritorial application of Illinois law to insurance transactions occurring in other states, potentially overriding those states' policy judgments in contravention of statutory law and judicial precedent.
American Family Mutual Ins. Co. v. Clark	No. SC84610	10/25/02	Sup. Ct. Missouri	Amicus brief filed in support of American Family's motion for review of the trial court's certification of a nationwide plaintiff class challenging the use of aftermarket automotive parts in vehicle repairs. The issue briefed concerned the extraterritorial application of Missouri law to insurance transactions occurring in other states, potentially overriding those states' policy judgments in contravention of statutory law and judicial precedent.
Koken v. Legion Insurance Company Koken v. Villanova Insurance Company	No. 183 MD 2002 No. 182 MD 2002	12/9/2002 10/24/02	Commonwealth Court of PA Commonwealth Court of PA	Two amicus briefs filed in support of the Pennsylvania Commissioner’s Emergency Amended Petition for Liquidation of Legion Insurance Company and Villanova Insurance Company. The initial brief focused on the interstate reliance on liquidation orders for insolvent insurers and the importance of prompt entry of liquidation orders to avoid interruptions in the payment of claims. The second brief focused on concerns regarding the manner in which the receivership was being managed by the court. Specifically, the brief addressed the fact that continuing the estate in rehabilitation has led to the opening of several ancillary estates, adding to the cost and complexity of the proceedings; that the court requiring the receiver to commute with the primary reinsurer will be costly to the estate; that the continued rehabiliation is increasing claimants' costs; and that adequate groounds for immediate liquidation exist.
Linda Gilchrist v. State Farm Mutual	No. 02-90047-E	12/26/02	U.S Court of Appeals, Eleventh Circuit	Amicus brief in support of State Farm Petition for Leave to Appeal arguing that state insurance laws affirmatively regulate anti-trust conspiracies as distinct prohibited activities and that state insurance laws also prohibit each specific wrongful act the plaintiffs allege the defendant insurance companies committed as part of the conspiracy, such that the McCarran-Ferguson Act bars the Sherman Act allegations. Furthermore the brief argued that numerous state non-OEM laws give the proposed class members completely different rights, choices and disclosures in regard to the use of non-OEM parts, which was not considered at all by the U.S. District Court, resulting in substantial weakness in the class certification process.
2003
Ann H. Womer Benjamin v. MetroHealth System	No. 03-0123	01/21/03	Supreme Court of Ohio	Amicus brief in support of commissioner. Issues briefed are that estoppel could not be applied because of the separate roles of the regulator and the receiver, the confidentiality of examination workpapers could not be implicitly waived, and that confidentiality of work papers is important to effective regulation of insurers.
Bowler (MA) v. United States and John Ashcroft	No. 02-1124	03/03/03	U.S. Supreme Court	Amicus brief in support of commissioner's petition for writ of certiorari. This is the latest in a series of cases where the Department of Justice (DOJ) has asserted either or both (1) that federal claims should be paid before the claims of guaranty funds (prior to United States Dept. of Treasury v. Fabe, 508 U.S. 491 (1993) the DOJ asserted this regarding all non-federal claims including administrative and policyholder related claims), and (2) that federal claims are not subject to claim bar dates established by a state statutory receiver and court in accordance with state statutes governing insurer receiverships.
American Insurance Association, American Re-Insurance Co., et al. v. John Garamendi	No. 02-722	03/24/03	U.S. Supreme Court	Amicus brief in support of Commissioner. The issue briefed is that California's Holocaust Victim Insurance Relief Act constitutes the business of insurance because it directly relates to the regulators ability to oversee insurance companies that have foreign or alien affiliates.
IIAA and NAPIA v. Hawke	No. 02-1620	06/09/03	U.S. Supreme Court	Amicus brief in support of petition for writ of certiorari. The principal issue briefed concerned the "prevent or significantly interfere" threshold codified by GLBA as the preemption standard respecting such laws. Same case as Cline v. Hawke.
Linda Gilchrist v. State Farm Mutual	No. 03-10799-HH	07/16/03	U.S. Court of Appeals, Eleventh Circuit	Amicus brief in support of State Farm arguing that state insurance laws affirmatively regulate anti-trust conspiracies as distinct prohibited activities and that state insurance laws also prohibit each specific wrongful act the plaintiffs allege the defendant insurance companies committed as part of the conspiracy, such that the McCarran-Ferguson Act bars the Sherman Act allegations. Furthermore the brief argued that numerous state non-OEM laws give the proposed class members completely different rights, choices and disclosures in regard to the use of non-OEM parts, which was not considered at all by the U.S. District Court, resulting in substantial weakness in the class certification process.
Koken v. Legion and Intervenors	No. 204/212 MAP 2003 No. 205/211 MAP 2003	10/15/03	Supreme Court of PA	Amicus brief in support of Pennsylvania Commissioner's conduct of the liquidations of Legion and Villanova. Specifically, the brief addressed the inappropriate interference with the commissioner's duties by the lower court in its orders related to reinsurance "cut-throughs." The brief also addressed the issue that court approval of receivership expenses is not required under the Pennsylvania statute.
Scott Wilbanks et al. v. Gloria Work et al.	No. A101100	11/19/03	California Ct. of Appeals, 1st Dist.	Amicus brief filed to provide information about the functions and activities of the NAIC in relation to viatical settlements, focusing on the model act and regulation. Defendant/Appellee Wolk invoked California's Anti-SLAPP statute in a defamation action and requested an amicus brief in support of the contention that viatical settlements are an "issue of public interest," a "public issue," or a matter of "public concern" within the meaning of the statute. The NAIC took no position on the merits of the underlying cause or the appeal.
Hill, et al. v. State Farm Mutual	B168662	07/24/03	California Court of Appeals	Amicus brief filed in support of State Farm appeal. The issue briefed is the primary role of the domicile state in the regulation of the financial and solvency aspects and corporate affairs of their domestic insurers.
2004
Mass. Bankers Ass'n v. Bowler	No. 03-CV-11522-RWZ	03/11/04	U.S. District Court, D. Mass.	Amicus brief in support of the Massachusetts Division of Insurance. The Mass. Bankers Ass'n and 9 federal- and state-chartered banks opposed the division's enforcement of the same consumer protection laws that were at issue in the earlier case (Bowler v. Hawke). The NAIC argued that the district court should affirm the "prevent of significantly interfere" standard set forth by Congress in GLBA with respect to the preemption of certain state laws.
In the Matter of the Liquidation of The Home Insurance Company	No. 2004-0319	07/07/04	New Hampshire Supreme Court	Amicus brief in support of Commissioner. Issue briefed is the scope of the liquidator’s authority to enter agreements to preserve and collect assets of the estate, and to pay necessary administrative expenses, specifically the liquidator’s ability to collect on the obligations of reinsurers under their agreements with the insolvent insurer.
Koken v. Reliance Insurance Co.	60 MAP 2004	08/18/04	Supreme Court of PA	Amicus brief in support of Commissioner. Issue briefed is that direct access to reinsurance by two insureds who were not named in the contracts of reinsurance was prohibited by statute and constituted a violation of the exclusivity of the receivership code and the priority of distribution.
2005
John A. Greene v. United States	05--5032	06/13/05	Court of Appeals for the Federal Circuit	Amicus brief in support of AZ's Commissioner in their role of Receiver for Great Global Assurance. Issue briefed is that under McCarran-Ferguson Act and United States Dep’t of Treasury v. Fabe and its progeny, the Arizona distribution statute governed over the Federal priority statute. As part of the regulation of the business of insurance, the Arizona statute could give priority to claims of the state guarantee association over the claims of the Federal government.
True v. USAA	04-L-79	07/14/05	20th Judicial Circuit, St. Clair County, Illinois	Amicus brief in support of USAA's motion to dismiss. Issue briefed is that extraterritorial application of an individual state's laws in the area of financial regulation and adequacy of surplus jeopardizes the established framework of interstate reliance on the domiciliary regulator.
Premera v. Mike Kreidler	32377-0-II	08/05/05	Court of Appeals for Division II State of Washington	Amicus brief in support of Commissioner Kreidler's denial of Premera's application to convert to for-profit status ssues briefed is the scope of discretion under the Model Holding Company Act.
John Garamendi v. Gerling Global Reinsurance Corporation of America	05-272	09/29/05	U.S. Supreme Court	Amicus brief in support of Commissioner Garamendi's opposition to motion for attorneys' fees. Issue briefed was adverse effect on regulatory practices due to increased potential liability for attorneys' fees.
Life Partners, Inc. v. Clinton Miller, et al	06-1370	12/13/05	United States District Court- Eastern District of Virginia	Amicus brief in support of Commissioner Gross on motion for summary judgment. Issue briefed is authority of state regulators to regulate viatical settlements. Brief not accepted by Court
Joan Ferrell, et al, v. Allstate Insurance Company (New Mexico)	26,058 Sandoval County D-1329-CV-02-885	12/19/05	Court of Appeals of the State of New Mexico	Amicus brief in support of Allstate on appeal from class certification. Issue briefed is comity concerns related to class certification in case alleging breach of contract due to failure to disclose installment fees on face of policy.
2006
In the Matter of the Liquidation of The Home Insurance Company	2005-0740	02/10/06	New Hampshire Supreme Court	Amicus brief in support of Commissioner Sevigny as liquidator after ruling on remand from July 2004 amicus filing. Issue briefed is the scope of the liquidator’s authority to agree to pay necessary administrative expenses to incentivize the filing of claims facilitating the collection of assets of the estate.
Life Partners, Inc. v. Clinton Miller, et al	06-1370	07/12/06	United States Court of Appeals for the Fourth Circuit	Amicus brief in support of Commissioner Gross and Virginia State Corporation Commission on Life Partner's appeal from District Court grant of summary judgment. Issue briefed is authority of state regulators to regulate viatical settlements and the consitutionality of the Virginia Viatical Settlements Act.
National Viaticals Inc. v. Oxendine	06-12951	08/25/06	United States Court of Appeals for the Eleventh Circuit	Amicus brief in support of Commissioner Oxendine on National Viatical's Appeal from District Court grant of Motion to Dismiss. Issue briefed is the authority of state insurance regulators to regulate viatical settlements and the constitutionality of the Georgia Life Settlements Act.
Fuller-Austin Insulation v. Highlands Insurance Company	Never filed	08/06/06		We did not file an amicus brief. This file is available in the Brief Bank.
2007
Christ v. Beneficial Corp. et al	06-14829; 07-10246	03/21/07	United States Court of Appeals for the Eleventh Circuit	Amicus brief denied. Amicus in support of Commissioner McCarty and Beneficial Corporation's appeal from the District Court of Alabama's ruling. Issues briefed are: (1) Whether the District Court erred in holding that federal common law defines "Insurance" and "Non-Filing Insurance" under the Truth in Lending Act; and (2) Whether the McCarran-Ferguson Act reverse-preempts the application of federal common law to Beneficial's NFI policies.
Sun Life Assurance Co. v. Manna	013849	07/11/07	Supreme Court of Illinois	Sun Life challenged the Illinois retaliatory tax law, claiming that it violates the Foreign Commerce Clause of the U.S. Constitution as it applies to “alien” insurers not organized under the laws of the United States Sun Life has appealed an appellate court ruling affirming a circuit court’s finding that the Illinois statute is not unconstitutional. The NAIC filed an amicus brief on July 11, 2007 joining in Director McRaith’s position that the McCarran-Ferguson Act removed all commerce clause limitations on the authority of the states to tax insurers.
Edstrom Industries v. Companion Life	07-2165	08/16/07	United States Court of Appeals for the 7th Circuit	Edstrom Industries appealed the decision of the U.S. District Court for the Eastern District of Wisconsin finding that a stop loss insurance policy issued by Companion Life was a policy of reinsurance, and not an insurance policy subject to regulation under Wis. Stat. Sections 631.01(2) and 631.11(1)(b). The NAIC filed an amicus brief on August 16, 2007, supporting the amicus brief filed by Wisconsin Commissioner of Insurance Sean Dilweg in support of Edstrom Industries. Joining Wisconsin the NAIC took the position that a stop loss insurance policy providing coverage for a self-funded employer health plan is insurance, and not reinsurance.. The NAIC’s amicus brief addressed issues of national uniformity in the regulation of stop loss insurance in the areas of: model acts; unlicensed health insurance plans; priority of policyholders in liquidations and guaranty fund coverage; state high risk health pools; and reinsurance.
James Donelon v. Louisiana Division of Adminsitrative Law	07-30482	09/12/07	United States Court of Appeals for the Fifth Circuit	Louisiana Commissioner James Donelon appeals from a ruling by the U.S. District Court for the Middle District of Louisiana dismissing his petition for declaratory action regarding the interpretation of 18 U.S.C. § 1033. Commissioner Donelon filed the petition after an administrative law judge overruled his denial of a “§1033 waiver.” The District Court applied an 11th Amendment Sovereign Immunity analysis and dismissed the matter for lack of subject matter jurisdiction. Commissioner Donelon appeals asking that the case be remanded to the District Court with direction to address the Commissioner’s request for interpretation of §1033 based on federal jurisdiction over the statute. The NAIC filed an amicus brief on September 12, 2007 presenting the Antifraud Task Force Guidelines for State Insurance Regulators to the Violent Crime Control and Law Enforcement Act of 1994: 18 U.S.C. 1033.
Hill, et al. v. State Farm Mutual	B194463	10/23/07	California Court of Appeal, 2d District	Amicus brief in support of State Farm. Class action plaintiffs appealed summary judgment ruling based on the Illinois business judgment rule. Issued briefed is that extraterritorial application of an individual state's laws in the area of adequacy of surplus jeopardizes the established framework of interstate reliance on the domiciliary regulator. Adequacy of surplus is particularly crucial to mutual insurers.
2008
Glogower v. Miller	07-16188	02/04/08	United States Court of Appeals for the Ninth Circuit	In the United States Court of Appeals for the Ninth Circuit, Case No. 07-16188. The Kentucky Office of Insurance appeals a District Court ruling that a nonadmitted insurer can discharge liability for unauthorized bonus and loan payments, as well as liability for unpaid claims in bankruptcy. The NAIC filed an amicus brief on Feb. 1, 2008 joining in Kentucky’s assertion that insolvency proceedings in Kentucky were not given due deference by the bankruptcy courts. The NAIC also argued that the District Court ruling undermines the NAIC’s Nonadmitted Insurance Act and disregards the longstanding principle that insurer insolvency is best regulated by the states.
Metlife v. Glenn	06-923	3/31/08	U.S. Supreme Court	In MetLife v. Glenn, No. 06-923, the U.S. Supreme Court considered whether the fact that a claim administrator of an ERISA disability plan also funds the plan benefits constitutes a "conflict of interest" and, if so, how that conflict should be taken into account on judicial review of a discretionary benefits determination. The NAIC took the position that in the case of a dual-role administrator the court should recognize that there is an inherent conflict of interest, and that a de novo standard of review should apply despite the existence of any discretionary clause.
Ward v. Dixie National Life Ins. Co., et al.	07-1434	06/18/08	U.S. Supreme Court	Amicus brief not accepted. Amicus brief in support of insurer's petition for writ of certiorari. Issue briefed is need for appropriate deference to DOI interpretation of policy term "actual charges" in supplemental cancer insurance policy.
Nevada v. Payroll Solutions	50678	08/18/08	Nevada Supreme Court	The NAIC filed an amicus brief in the Nevada Supreme Court in the case of Payroll Solutions v. Nevada , Case No. 50678 (Aug. 18, 2008) at the request of the Nevada Department of Insurance (DOI) in its appeal from a Nevada District Court decision. The NAIC joined the DOI in requesting the Supreme Court review whether the District Court erred in setting aside an order of the Commissioner finding Payroll Solutions to be a Multiple Employer Welfare Association (MEWA). The NAIC argued that ERISA clearly subjects MEWAs to state regulation and that its definition of MEWA is determinative. The NAIC also asserted that the state legislature's attempt to carve out exceptions to ERISA's MEWA definition should not be given effect. The Nevada statute at issue is preempted by ERISA's terms.
Standard Insurance Company v. John Morrison	08-35246	08/29/08	U.S. Court of Appeals - Ninth District	The Court of Appeals upheld the authority of the Montana commissioner to disapprove discretionary clauses in group disability insurance policies, and found that this practice was not preempted by ERISA. Earlier this year, in American Council of Life Insurers v. Ross 558 F.3d 600 (6th Cir. 2009), a similar matter with similar facts, held that rules prohibiting the use of discretionary clauses were also saved from preemption under ERISA. Discretionary clauses are provisions that grant ERISA claim administrators the discretionary authority to interpret policy terms and to determine eligibility for benefits. Their use is prohibited under the NAIC Prohibition on the Use of Discretionary Clauses Model Act (Model #42).
PAL Properties, LLC v. Ticor Title Insurance	280389		Michigan Court of Appeals	Never Filed
Ario v. Reliance Insurance Company	Docket No. 3 MAP 2008	9/29/2008	Supreme Court of Pennsylvania	The NAIC filed an amicus brief in support of the Commissioner as Liquidator of Reliance Insurance Company. Issue briefed is the priority of distribution of the claims of a subrogated insurer. The amicus brief discusses the history of the NAIC Model Laws on insolvency and argues that the claims of subrogated insurers should not be in the same priority class as claims of policyholders and third-party claimants.
2009
Andrew Cuomo v. The Clearing House Association	08-453	3/1/2009	US Supreme Court	The NAIC Executive Committee authorized a financial commitment of up to $15,000 to join the National Governors Association (“NGA”) in filing an amicus brief in Cuomo v. Clearing House Ass’n, L.L.C., before the United States Supreme Court. The final contribution was just under $10,000. The NGA solicited the financial participation of other state government associations for a brief, which was filed March 4, 2009 through the State and Local Legal Center. Cuomo was appealed from the United States Court of Appeals for the Second Circuit, where the decision was captioned as Clearing House Ass’n v. Cuomo, 510 F.3d 105 (2nd Cir. 2007). The case concerned whether federal regulators, specifically the Office of the Comptroller of the Currency (“OCC”), may preempt states from enforcing otherwise valid state laws against national banks and their operating subsidiaries. In reviewing the matter, the Court examined whether the OCC’s administrative rulemaking procedures that resulted in the state enforcement preemption are entitled to deference under the standard established by Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), and whether the OCC’s authority is inconsistent with a prior decision affirming that national banks are subject to valid state laws unless such laws interfere, impair or conflict with federal laws. The Court heard oral argument on Tuesday, April 28, 2009. In a judgment rendered on June 29, 2009, the Court held that the OCC reasonably interpreted National Bank Act ("NBA") as precluding New York from exercising "visitorial powers" in its capacity as a supervisor of corporations. Enforcement of state laws, however, was not subsumed within "visitorial powers"; therefore, OCC erred in interpreting the NBA to prevent New York from prosecuting enforcement actions in its courts.
Glogower v. Miller	09-17	10/14/2009	US Supreme Court	In the Supreme Court of the United States, Case No. 09-174. The Kentucky Department of Insurance opposes a Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. The NAIC filed an amicus brief on October 12, 2009, joining in Kentucky’s assertion that the Ninth Circuit gave proper due deference to a state insolvency court in the subsequent bankruptcy declared by the chief executive officer of a self-funded insurance trust. The NAIC argued that state insolvency proceedings and federal bankruptcy proceedings can function in harmony without the need for one to be displaced by the other.
2010
Oil & Gas Insurance Company v. Petrosurance	09-1816	03/08/10	Supreme Court of Ohio	On March 8, 2010, the NAIC filed an amicus brief in Mary Jo Hudson, Superintendent of Insurance, State of Ohio, acting in her capacity as Liquidator of the Oil & Gas Insurance Company v. Petrosurance, on appeal to the Supreme Court of Ohio. The issue is this case is whether the Ohio Liquidator should be allowed to provide interest payments for interest that accrued during liquidation to policyholders and claimants before making payments to shareholders. The Appellate Court held that the Ohio Liquidator could not do so absent specific statutory language. The NAIC argued in our amicus brief that payment of interest to policyholders and claimants is consistent with the NAIC Insolvency Laws and that the Liquidator is granted broad discretion under the supervision, rehabilitation and liquidation statutes.
Standard Insurance Company v. Monica Lindeen, State Auditor	09-885	4/19/2010	US Supreme Court	The United States Supreme Court denied a petition for writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit in the case of Standard Ins. Co. v. Morrison, 584 F.3d 837 (9th Cir. 2009). The NAIC filed an amicus brief in opposition to the writ of certiorari and in support of Montana Commissioner Monica J. Lindeen. The case concerned the issue of whether the Employee Retirement Income Security Act of 1974 ("ERISA") preempted the authority of a state insurance commissioner to disapprove discretionary clauses in group long term disability insurance policies. Provisions in insurance policies purporting to reserve discretion to the insurer to interpret the terms of the contract are not permitted under the NAIC's Prohibition on the Use of Discretionary Clauses Model Act, although they are commonly found in group insurance policies subject to ERISA. The Supreme Court left in place the Ninth Circuit's holding that Montana’s decision to disapprove discretionary clauses was not preempted under ERISA, which expressly saves from preemption any state law that “regulates insurance, banking or securities.”
Anthem Health Plans of Maine Inc. v. Superintendent of Insurance	Docket No. BCD-10-255	9/8/2010	State of Maine, Supreme Judicial Court	Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance (Law Docket No. BCD-10-255). The NAIC filed an amicus brief in the Maine Supreme Court arguing the Superintendent was within her discretion to approve as adequate an individual health rate filing with a zero percent profit and risk for a period of one year. The case concerned, in part, whether Maine's approval of Anthem's individual health filing rate for 2009 which included zero percent risk and profit was inadequate pursuant to Maine’s rating law for individual health products 24-M.R.S.A. § 2736(2). Maine's statute requires that rates not be “excessive, inadequate or unfairly discriminatory.” The NAIC's amicus brief focused on the broad discretion of regulators to consider all relevant factors and to determine reasonable rates. The NAIC brief provided the background of the statutory language prohibiting inadequate rates and NAIC's interest in preserving the discretionary authority of regulators to review rates, protect consumers and ensure health insurance plans remain solvent.
Fuller-Austin Asbestos v. Zurich-American Insurance Company	CGC 04-431719	10/26/2010	Superior Court of California	On October 28, 2010, the NAIC submitted an amicus brief to address the questions of whether a final order of a state insurance commissioner approving the acquisition and control of a domestic insurer by another insurer may be challenged by a policyholder in a later action in another court, and whether allowing such a challenge potentially upsets another state's receivership and liquidation scheme for dealing with troubled insurers. This case relates to an order entered by the New Hampshire Insurance Department in a Form A proceeding in 1995. New Hampshire approved an application by Zurich Insurance Company, an Illinois domestic insurer (“Zurich”), to acquire and control The Home Insurance Company, a New Hampshire domestic insurer (“The Home”). Following Zurich's acquisition, The Home was subject to the direct supervision of the New Hampshire Insurance Department as a run-off entity. By 2003, The Home was in liquidation pursuant to New Hampshire law. In February 2009, several policyholders of The Home filed a third amended complaint in California Superior Court asserting that the Form A proceeding amounted to a fraudulent conveyance.
2011
American Financial Group and Consolidated Subsidiaries v. United States of America	Case No.10-3991	3/3/2011	United States Court of Appeals - 6th Circuit	The NAIC filed an amicus brief on March 3, 2011, in the case of American Financial Group and Consolidated Subsidiaries v. United States of America in the United States Court of Appeals for the Sixth Circuit. The NAIC filed this brief at the request of the Ohio Department of Insurance in support of Plaintiff American Financial. This case involves tax litigation brought by American Financial against the Internal Revenue Service, and addresses the interpretation of NAIC Actuarial Guideline XXXIII “Determining Minimum CARVM Reserves for Individual Annuity Contracts”(AG 33) for federal income tax purposes. Internal Revenue Code Section 807(d) requires a life insurance company’s reserves for annuity contracts to be determined using “the Commissioner’s Annuities Reserve Valuation Method prescribed by the National Association of Insurance Commissioners which is in effect on the date of the issuance of the contract.”
Dale Fossen v. Blue Cross and Blue Shield of Montana	Case No. 10-36001	2/16/2011	United States Court of Appeals - 9th Circuit	The NAIC filed an amicus brief on February 16, 2011, in the case Dale Fossen, et al. v. Blue Cross Blue Shield of Montana, Inc. in the United States Court of Appeals for the Ninth Circuit. The NAIC filed this brief at the request of the Montana Insurance Division in support of Plaintiffs. This case involved group health insurance marketed by Blue Cross Blue Shield of Montana through an association, and whether Blue Cross charged Plaintiffs premiums substantially in excess of premiums charged for similarly situated groups in violation of MCA Section 33-22-526(2)(a), which provides that a "group health plan...may not require an individual, as a condition of enrollment or continued enrollment under the group health plan, to pay a premium or contribution that is greater than the premium or contribution for a similarly situated individual enrolled in the group health plan on the basis of any health status-related factor of the individual...."
Hilda L. Solis, Secretary, United States Dept. of Labor v. The Home Insurance Company	Case No. 1:10-cv-00572-SM	3/16/2011	United States District Court - District of New Hampshire	On February 18, 2011, the NAIC filed an amicus brief at the request of the New Hampshire Department of Insurance in the United States District Court for the District of New Hampshire in Solis v. The Home Insurance Company. This case concerns a complaint filed by the U.S. Department of Labor (DOL), seeking federal jurisdiction for its claims against The Home Insurance Company (The Home). The DOL’s claims, which also concern the priority class assigned by Commissioner Sevigny as liquidator for The Home, is currently pending in New Hampshire state court. The NAIC argued that the pending state liquidation proceedings should be the exclusive forum for resolving disputes related to the liquidation of an insolvent insurer, especially for the application of the priority of distribution. The exclusivity of the state court’s jurisdiction is a long-standing principle of insurer receivership law that contributes to the efficiency of estate administration and the strength of state-based insurance regulation. The matter remains pending.
A.P.I., Inc. Asbestos Settlement, et al. v. Home Insurance Company, et al.	Civil Case No.: 09-cv-00975-JRT-TNL	07/21/2011	United States District Court - District of Minnesota	On July 21, 2011, the NAIC submitted an amicus brief in Minnesota Federal Court in the matter of A.P.I., Inc. Asbestos Settlement Trust v. Home Insurance Co. The NAIC argued that a final order of a state insurance commissioner approving the acquisition and control of a domestic insurer by another insurer should not be allowed to be challenged by a policyholder in a later action in another court, and that to allow such a challenge could potentially upset other states' receivership and liquidation schemes for dealing with a troubled insurer. This case relates to an order entered by the New Hampshire Insurance Department in a Form A proceeding in 1995. New Hampshire approved an application by Zurich Insurance Company, an Illinois domestic insurer ("Zurich"), to acquire and control The Home Insurance Company, a New Hampshire domestic insurer ("The Home"). Following Zurich's acquisition, The Home was subject to the direct supervision of the New Hampshire Insurance Department as a run-off entity. By 2003, The Home was in liquidation pursuant to New Hampshire law. In 2009, A.P.I. sued several Zurich affiliates for vicarious liability for A.P.I's policy claims against The Home, as well claims for fraudulent transfer and tortuous inference. In 2010, Zurich moved to dismiss the complaint which was granted as to the fraudulent transfer and tortuous interference claims. In July, 2011, Zurich filed a motion for summary judgment on the remaining claims. The NAIC filed its amicus in support of Zurich's summary judgment motion.
Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance, et al.	Case No. - Law Docket No. BCD-11-439	10/24/2011	Supreme Judicial Court, Maine	Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance (Law Docket No. BCD-11-439). The NAIC filed an amicus brief in the Maine Supreme Court arguing the Superintendent was within her discretion to approve as adequate an individual health rate filing with a one percent profit and risk for a period of one year. The case concerned, in part, whether Maine's approval of Anthem's individual health filing rate for 2010 which included one percent risk and profit was inadequate pursuant to Maine’s rating law for individual health products 24-M.R.S.A. § 2736(2). Maine's statute requires that rates not be “excessive, inadequate or unfairly discriminatory.” The NAIC's amicus brief focused on the broad discretion of regulators to consider all relevant factors and to determine reasonable rates. The NAIC brief provided the background of the statutory language prohibiting inadequate rates and NAIC's interest in preserving the discretionary authority of regulators to review rates, protect consumers and ensure health insurance plans remain solvent.