HASSETT'S OBJECTIONS - The Filed Rate Doctrine: A Love Story

Insurance Reinsurance Managed Healthcare Review - Spring 2012

Because many states have statutes barring or restricting the enforcement of arbitration clauses in insurance contracts, the U.S. Supreme Court's decision last year in AT&T Mobility, LLC v. Concepcion, Case No. 09-893 (U.S. April 27, 2011) (upholding class arbitration waivers) has been of limited benefit to insurers. See Ga. Code Ann. § 9-9-2(c) (arbitration clauses in insurance contracts unenforceable); Miss. Code Ann. § 83-11-109 (disallowing arbitration clauses in uninsured motorist coverage); Neb. Rev. St. § 25-2602.01; S.C. Code Ann. § 15-48-10; Ark. Code Ann. § 16-108-230; Nev. Rev. St. § 689B.067 (group health insurance); United Ins. Co. of Am. v. Fla. Office of Ins. Regulation, 985 So. 2d 665 (Fla. App. 2008) (upholding insurance department's denial of application to include arbitration clause in life insurance contracts); Appleton Papers, Inc. v. Home Indemn. Co., 612 N.W.2d 760 (Wis. App. 2000) (arbitration clause unenforceable where form not approved by commissioner of insurance). The majority of decisions uphold insurance-specific restrictions on arbitrability based upon the McCarran-Ferguson Act, which allows state law to control the insurance industry unless Congress expressly provides otherwise. See Am. Bankers Ins. Co. of Fla. v Inman, 436 F.3d 490 (5th Cir. 2006); McKnight v. Chicago Title Ins. Co., 358 F.3d 854 (11th Cir. 2004).

Just in time for insurers, the filed rate doctrine has gained momentum. Most recently, in Armour v. Transamerica Life Ins. Co., Case No. 11-2034 (D. Kan. January 25, 2012), the court dismissed a putative class...