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COURT REVIVES CLAIMS AGAINST INSURERS OVER ARMENIAN GENOCIDE
By STEVEN M. ELLIS, Staff Writer
Metropolitan News-Enterprise
http://www.metnews.com/articles/2010/movs121310.htm
Dec 13 2010
A divided Ninth U.S. Circuit Court of Appeals panel on Friday reversed
its decision that federal law preempts a state statute extending the
limitations period for claims under life insurance policies issued
to victims of the Armenian Genocide.
The three-judge panel held that the state law was not in conflict
with federal law because there was no clearly-established, express
federal policy forbidding states from referring to the event.
The panel, in a 2009 ruling by Judge David R. Thompson, threw out a
class action by plaintiffs of Armenian descent who sued Germany~Rs
Victoria Insurance Company and others over the alleged wrongful
withholding of benefits from policies issued to victims of genocide at
the hands of Turks from 1915 to 1923 as the Ottoman Empire collapsed.
Prior Ruling
Judge Dorothy W. Nelson joined Thompson in that opinion, which found
preemption due to a conflict between Code of Civil Procedure Sec.
354.4 and an Executive Branch foreign policy preference declining
to provide official recognition to the Armenian Genocide. Enacted
in 2000 and modeled on a law passed to benefit Holocaust victims and
World War II slave laborers, the state law extended until the end of
this year the statute of limitations for claims arising from insurance
policies issued to ~SArmenian Genocide victim[s].~T
But on rehearing, Nelson cast her vote with Judge Harry Pregerson,
who had earlier dissented that no express federal policy prevented
the state from using the term.
Communications ~QCounterbalanced~R
Now writing for the majority, Pregerson wrote that three informal
presidential communications in the last 10 years rejecting
congressional resolutions recognizing the Armenian Genocide were
~Scounterbalanced, if not outweighed, by various statements from
the federal executive and legislative branches in favor of such
recognition.~T
The plaintiffs sued alleging unjust enrichment, constructive trust and
breaches of contract and the covenant of fair dealing. U.S. District
Judge Christina A. Snyder of the Central District of California granted
the defense~Rs motion to dismiss the former claims, but declined to
dismiss the breach claims.
Snyder also held that that the class members had standing and that
the named defendants were the proper defendants, and she rejected
the defense~Rs argument that Sec. 354.4 was unconstitutional on the
grounds that it violated due process and was preempted under the
foreign affairs doctrine.
The Ninth Circuit originally reversed Snyder~Rs latter decision,
but Pregerson noted Friday that the Executive Branch had used terms
~Svirtually indistinguishable~T to Armenian Genocide on a number of
other occasions.
He said the state~Rs effort to regulate the insurance industry was
~Swell within the realm of its traditional interests.~T He also pointed
out that the federal government has never expressed any opposition
to the recognition of the Armenian Genocide by approximately 40 of
the states.
The judge rejected the defendants~R claims that two acts resolving
World War I-related claims between the United States and Germany
preempted Sec. 354.4, reasoning that neither the Claims Agreement
nor the War Claims Act had any application to policies issued to
citizens of the Ottoman Empire. He further opined that nothing in
the state law operated to limit the class of proper defendants or to
limit standing to any particular group.
Dissenting Opinion
Thompson dissented, writing that he still believed the Executive
Branch~Rs recent rejections of Congressional resolutions relating
to the genocide demonstrated an express federal policy, meaning that
the state statute was preempted for conflicting with federal policy
and because it dealt in a field~Wforeign policy~Wexpressly reserved
to the federal government.
Brian S. Kabateck of Kabateck Brown Kellner represented the plaintiffs
on appeal, while Neil Michael Soltman of Mayer Brown represented
the defendants.
The case is Movsesian v. Victoria Versicherung AG, 07-56722.
From: A. Papazian
By STEVEN M. ELLIS, Staff Writer
Metropolitan News-Enterprise
http://www.metnews.com/articles/2010/movs121310.htm
Dec 13 2010
A divided Ninth U.S. Circuit Court of Appeals panel on Friday reversed
its decision that federal law preempts a state statute extending the
limitations period for claims under life insurance policies issued
to victims of the Armenian Genocide.
The three-judge panel held that the state law was not in conflict
with federal law because there was no clearly-established, express
federal policy forbidding states from referring to the event.
The panel, in a 2009 ruling by Judge David R. Thompson, threw out a
class action by plaintiffs of Armenian descent who sued Germany~Rs
Victoria Insurance Company and others over the alleged wrongful
withholding of benefits from policies issued to victims of genocide at
the hands of Turks from 1915 to 1923 as the Ottoman Empire collapsed.
Prior Ruling
Judge Dorothy W. Nelson joined Thompson in that opinion, which found
preemption due to a conflict between Code of Civil Procedure Sec.
354.4 and an Executive Branch foreign policy preference declining
to provide official recognition to the Armenian Genocide. Enacted
in 2000 and modeled on a law passed to benefit Holocaust victims and
World War II slave laborers, the state law extended until the end of
this year the statute of limitations for claims arising from insurance
policies issued to ~SArmenian Genocide victim[s].~T
But on rehearing, Nelson cast her vote with Judge Harry Pregerson,
who had earlier dissented that no express federal policy prevented
the state from using the term.
Communications ~QCounterbalanced~R
Now writing for the majority, Pregerson wrote that three informal
presidential communications in the last 10 years rejecting
congressional resolutions recognizing the Armenian Genocide were
~Scounterbalanced, if not outweighed, by various statements from
the federal executive and legislative branches in favor of such
recognition.~T
The plaintiffs sued alleging unjust enrichment, constructive trust and
breaches of contract and the covenant of fair dealing. U.S. District
Judge Christina A. Snyder of the Central District of California granted
the defense~Rs motion to dismiss the former claims, but declined to
dismiss the breach claims.
Snyder also held that that the class members had standing and that
the named defendants were the proper defendants, and she rejected
the defense~Rs argument that Sec. 354.4 was unconstitutional on the
grounds that it violated due process and was preempted under the
foreign affairs doctrine.
The Ninth Circuit originally reversed Snyder~Rs latter decision,
but Pregerson noted Friday that the Executive Branch had used terms
~Svirtually indistinguishable~T to Armenian Genocide on a number of
other occasions.
He said the state~Rs effort to regulate the insurance industry was
~Swell within the realm of its traditional interests.~T He also pointed
out that the federal government has never expressed any opposition
to the recognition of the Armenian Genocide by approximately 40 of
the states.
The judge rejected the defendants~R claims that two acts resolving
World War I-related claims between the United States and Germany
preempted Sec. 354.4, reasoning that neither the Claims Agreement
nor the War Claims Act had any application to policies issued to
citizens of the Ottoman Empire. He further opined that nothing in
the state law operated to limit the class of proper defendants or to
limit standing to any particular group.
Dissenting Opinion
Thompson dissented, writing that he still believed the Executive
Branch~Rs recent rejections of Congressional resolutions relating
to the genocide demonstrated an express federal policy, meaning that
the state statute was preempted for conflicting with federal policy
and because it dealt in a field~Wforeign policy~Wexpressly reserved
to the federal government.
Brian S. Kabateck of Kabateck Brown Kellner represented the plaintiffs
on appeal, while Neil Michael Soltman of Mayer Brown represented
the defendants.
The case is Movsesian v. Victoria Versicherung AG, 07-56722.
From: A. Papazian