ENCINO, Calif. – On April 22, 2016, the National Risk Retention Association (NRRA) filed its newest amicus curiae brief in the Louisiana Supreme Court in support of CPA Mutual Insurance Company of America Risk Retention Group (CPA) in the ongoing case of Ziegler & Inspeq. Services v. Housing Authority of New Orleans. CPA filed on that same day its writ of certiorari before the Louisiana Supreme Court.
CPA was added before the trial court as a named defendant in its capacity as the liability insurance carrier for one of its insured members, under that state’s “direct action” statute. CPA was dismissed by the trial court on the same grounds as cited in Courville v Allied Professionals Ins. Co. RRG. Plaintiff appealed and the Fourth Circuit Court of Appeals reversed using an unusual procedural basis, placing Ziegler at odds with Courville, decided last year by the First Circuit court of appeals in Louisiana.
The NRRA amicus curiae brief (which translated means “friend of the court”), mirrors that which it filed on behalf of CPA while the case was on appeal, and elaborates on the growing list of substantial judicial decisions favoring LRRA preemption, where state insurance regulations are being used to attempt regulation of the insurance being offered by RRGs. This process is expressly preempted by the federal statute.
The brief filed on behalf of CPA Mutual represents the culmination of many years of NRRA’s efforts to refine, define and truly focus on the best of the best arguments, case authorities and writings of the key court decisions positively affecting this industry.
“We have learned how to capitalize upon the favorable findings and nuances of the cases NRRA has prevailed on over the last 20 years, and to articulate intelligently how the handful of unfavorable cases against us are distinguishable simply because they are flawed in their reasoning, or are simply a misinterpretation of the federal law,” said Joe Deems, NRRA Executive Director. “Our amicus cases actually go back into the 90’s, and the APIC cases have cemented our posture, because of the ongoing need to have an actual case in controversy as a prerequisite to filing an amicus brief which cannot be filed without an identified litigating party to the case to support. CPA is now added to this list.”
NRRA previously filed amicus curiae briefing in both Courville (Allied Professionals) and Ziegler (CPA Mutual), two different cases. The two cases rested upon legal questions that are essentially identical: both companies had “arbitration” clauses in their policy, yet both carriers were named directly in the suits under Louisiana’s direct action statute, which would have the effect of circumventing each carrier’s right to arbitrate claims, in lieu of having them adjudicated before a judge or jury.
In Courville, the First Circuit Court of Appeals upheld Allied’s right to arbitration, likewise holding that the direct action statute could not be applied to a foreign RRG as preempted by the Liability Risk Retention Act (LRRA). In Ziegler, however, the Fourth Circuit Court of Appeals denied that right, (e.g., the exact opposite of Courville), thus leading NRRA to file its briefing in support of CPA’s Writ, based on the “split” of authority in the state caused by two conflicting court of appeal decisions.
“As a lawyer, I am proud of where we have legalistically evolved, so far,” said Deems. “As CEO of NRRA, I am proud of how we have been able to marshal our modest resources and to guide and motivate the landscape and complexity of talented personalities to create an organized and persuasive system for dealing with these issues, which has resulted in a usable library of briefing tools and resources that will benefit our members for many years to come.”
ABOUT NATIONAL RISK RETENTION ASSOCIATION
The National Risk Retention Association (NRRA) was formed in September 1987 as a 501(c)(6) non-profit trade association and is the only national association dedicated to the successful development, education and promotion of U.S. domiciled alternatives to traditional liability insurance. NRRA provides a forum where the country’s most knowledgeable individuals in risk retention insurance may exchange valuable and timely information. For more information, visit www.riskretention.org.
For more information, contact NRRA Executive Director Joseph E. Deems at 818-995-3274 or firstname.lastname@example.org. Visit www.riskretention.org.