GERLING GLOBAL REINSURANCE CORP. OF AMERICA v. LOW 0117023oa

Docket Nº:0117023oa
Party Name:GERLING GLOBAL REINSURANCE CORP. OF AMERICA v. LOW
Case Date:May 08, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

GERLING GLOBAL REINSURANCE CORP. OF AMERICA v. LOW 0117023oa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERLING GLOBAL REINSURANCE CORP. OF AMERICA; GERLING GLOBAL REINSURANCE CORP. – U.S. BRANCH; GERLING GLOBAL LIFE REINSURANCE COMPANY; GERLING GLOBAL LIFE INSURANCE COMPANY; GERLING AMERICA INSURANCE COMPANY; and CONSTITUTION INSURANCE CORP., Plaintiffs-Appellees-Cross- Appellants-Plaintiffs-Appellants, v.HARRY W. LOW, in his capacity as the COMMISSIONER OF INSURANCE OF THE STATE OF CALIFORNIA, Defendant-Appellant-Cross-Appellee-Defendant-Appellee.

Nos. 01-17023, 01-17433, 02-15282; D.C. No. CV-00-00506-WBS

ASSICURAZIONI GENERALI, Plaintiff-Appellee-Cross-Appellant-Plaintiff-Appellant, v. HARRY W. LOW, individually, and in his capacity as the INSURANCE COMMISSIONER for the STATE OF CALIFORNIA, Defendant-Appellant-Cross-Appellee-Defendant-Appellee.

D.C. No. CV-00-00875-WBS

WINTERTHUR INTERNATIONAL AMERICA INSURANCE COMPANY, WINTERTHUR INTERNATIONAL AMERICA UNDERWRITERS INSURANCE COMPANY; GENERAL CASUALTY COMPANY OF WISCONSIN, REGENT INSURANCE COMPANY; REPUBLIC INSURANCE COMPANY; SOUTHERN INSURANCE COMPANY, UNIGARD INDEMNITY COMPANY; UNIGARD INSURANCE COMPANY; and BLUE RIDGE INSURANCE COMPANY, Plaintiffs-Appellees-Cross-Appellants-Plaintiffs-Appellants, v. HARRY W. LOW, in his capacity as INSURANCE COMMISSIONER for the STATE OF CALIFORNIA, Defendant-Appellant-Cross-Appellee Defendant-Appellee.

D.C. No. CV-00-00779-WBS

AMERICAN INSURANCE ASSOCIATION and AMERICAN RE-INSURANCE COMPANY, Plaintiffs-Appellees-Cross-Appellants-Plaintiffs-Appellants, v. HARRY W. LOW, in his capacity as INSURANCE COMMISSIONER for the STATE OF CALIFORNIA, Defendant-Appellant-Cross-Appellee-Defendant-Appellee.

D.C. No. CV-00-00613-WBS

ORDER AND AMENDED OPINION

Appeals from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted May 8, 2002—

Pasadena, California

Filed July 15, 2002

Amended September 9, 2002

Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.

Opinion by Judge Graber

COUNSEL

Frank Kaplan and Ryan S. Hedges, Alschuler Grossman Stein & Kahan LLP, Los Angeles, California, for the defendant-appellant-cross-appellee-defendant-appellee.

George L. O’Connell, Stevens & O’Connell LLP, Sacra-mento, California; Frederick W. Reif, Wilson Elser Mos-kowitz Edelman & Dicker LLP, New York, New York; Sally Agel, Milbank, Tweed, Hadley & McCloy LLP, Los Angeles, California; William H. Webster, Milbank, Tweed, Hadley & McCloy LLP, Washington, D.C.; and Kenneth S. Geller and Neil M. Soltman, Mayer, Brown, Rowe & Maw, Washington, D.C.,for the plaintiffs-appellees-cross-appellants-plaintiffs-appellants.

Mark B. Stern and Douglas Hallward-Driemeier, Department of Justice, Washington, D.C.; H. Lee Roussel, Assistant Attorney General, Office of the Attorney General, Olympia, Washington; Daniel J. Siegel, Supervising Deputy Attorney General, Office of the Attorney General, Sacramento, Califor-nia; David A. Lash, Bet Tzedek Legal Services, Los Angeles, California; and Roger M. Witten, Wilmer, Cutler & Pickering, Washington, D.C., for the amici curiae.

ORDER

The opinion filed July 15, 2002, is amended as follows:

On slip opinion page 9856, line 3 from the bottom, insert ", denied the Commissioner’s summary judgment motion," so the sentence reads as follows: "The court granted Plaintiffs’ summary judgment motion, denied the Commissioner’s summary judgment motion, and permanently enjoined the Commissioner from enforcing the statute."

On slip opinion page 9857, second full paragraph, replace the first sentence and citation with: "We review de novo the district court’s grant or denial of summary judgment. United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1164 (9th Cir. 2000)."

On slip opinion page 9882, last two lines, replace with: "REVERSED and REMANDED with instructions to vacate the injunction and to grant the Commissioner’s motion for summary judgment."

The panel has voted to deny the Plaintiffs’ petitions for panel rehearing. With the above amendments, the panel has voted to deny the Defendant’s petition for panel rehearing. Judges Graber and Paez have voted to deny the Plaintiffs’ petitions for rehearing en banc, and Judge Goodwin has so recommended.

The full court has been advised of the petitions for rehearing en banc and no judge of the court has requested a vote on the petitions.

The Plaintiffs’ petitions for panel rehearing and petitions for rehearing en banc are DENIED. With the above amendments, the Defendant’s petition for panel rehearing is DENIED.

No subsequent petitions for rehearing or rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge:

This case comes before us for the second time. Plaintiffs, which are various insurance companies and a trade association of insurance companies, brought the present action to enjoin Defendant Harry W. Low, the Insurance Commissioner of the State of California (Commissioner), from enforcing a California statute requiring disclosure of information about Holocaust-era insurance policies. The district court permanently enjoined enforcement of the statute. The main question for decision is this: May California constitutionally require the disclosure of insurance claims-related information by an insurance company that is licensed to do business in Califor-nia even though the required information may be in the hands of a related entity that is located in a foreign country? We answer that question "yes" and, accordingly, reverse the judgment of the district court and vacate the injunction.

FACTUAL AND PROCEDURAL HISTORY

The Holocaust Victim Insurance Relief Act of 1999, Cal. Ins. Code §§ 13800-13807 (HVIRA), requires any insurer doing business in California that sold insurance policies to persons in Europe that were in effect between the years 1920 and 1945 (Holocaust-era policies) to file certain information about those policies with the Commissioner.1 Cal. Ins. Code § 13804(a). The reporting requirement also applies to insurance companies that do business in California and are "related" to a company that sold Holocaust-era policies, even if the relationship arose after the policies were issued. Id. A "related company" is defined as any "parent, subsidiary, reinsurer,[2] successor in interest, managing general agent, or affiliate company of the insurer." Id. § 13802(b). The statute instructs the Commissioner to store the information in a "Holocaust Era Insurance Registry," which is to be made available to the public. Id. § 13803. The Commissioner "shall suspend the certificate of authority to conduct insurance business in the

1The information that the insurance companies must provide is: (1) the number of Holocaust-era insurance policies; (2) the holder, beneficiary, and current status of each policy; and (3) the city of origin, domicile, or address for each policyholder listed in the policies. Cal. Ins. Code § 13804(a)(1)-(3). In addition, the insurer must certify that: (1) the proceeds of the policies were paid; or (2) the beneficiaries or heirs could not, after diligent search, be located, and the proceeds were distributed to Holocaust survivors or charities; or (3) a court of law has certified a plan for the distribution of the proceeds; or (4) the proceeds have not been distributed. The implementing regulations state that, if "the insurer states that it has no actual policies to report because the records are no longer in the possession of the insurer or its related company(ies), it shall provide a complete explanation of that statement." Cal. Code Regs. tit. 10, § 2278.2(a). Any insurer who knowingly files false information is subject to a penalty not to exceed $5,000. Cal. Ins. Code § 13805. 2By regulation, the meaning of "reinsurer" is limited to directly related companies. Cal. Code Regs. tit. 10, § 2278.1(i).

state of any insurer that fails to comply" with the reporting requirements, until the insurer complies. Id. § 13806.

Plaintiffs filed four separate actions in which they sought to enjoin the enforcement of HVIRA. The original complaints were filed by

(1) Gerling Global Reinsurance Corp. of America and its affiliates (collectively, Gerling), who are, according to their complaint, "arguably ‘affiliated’ [with] . . . or ‘related [to]’ " two German insurers that issued Holocaust-era policies; (2) American Insurance Association (AIA), a nonprofit trade association of insurers whose member-insurers are required to report under HVIRA, and American Reinsurance Company, a wholly owned subsidiary of a German corporation "that has investment interests in European insurance companies that do issue insurance policies"; (3) Winterthur International America Insurance Company, its affiliates, and numerous other insurance and underwriting companies (collectively, Winterthur), who are "arguably ‘related companies’ . . . with more than forty insurance companies currently located in Europe"; and (4) Assicurazioni Generali (Generali), an Italian insurance company that issued Holocaust-era policies and currently does business in California.

Gerling Global Reins. Corp. of Am. v. Low, 240 F.3d 739, 742 (9th Cir. 2001) (Gerling I), cert. dismissed, 122 S.Ct. 1907 (2002).

Plaintiffs sought declaratory and injunctive relief, claiming that HVIRA violated a number of constitutional provisions. Additionally, Plaintiff Gerling asked the court to review two statutes that were enacted at the same time as HVIRA: (1) California Code of Civil Procedure § 354.5, which allows California residents to bring claims for the payment of Holocaust-era insurance policies and extends the statute of limitations on such claims until December 31, 2010; and (2) California Insurance Code § 790.15, which instructs the Commissioner to suspend the certificate of authority of any insurer who has failed to pay on valid Holocaust-era policies. The Commissioner, in...

To continue reading

FREE SIGN UP