Mandated arbitration has no place in insurance policies for individuals, NAIC reviewing, McCarran- Ferguson Act allows states to regulate arbitration in insurance over Federal Arbitration Act FAA
“Thrivent contends that its commitment to individual arbitration is ‘”important to the membership because it reflects Thrivent’s Christian Common Bond, helps preserve members’ fraternal relationships, and avoids protracted and adversarial litigation that could undermine Thrivent’s core mission.’”…Thrivent v. Acosta Nov. 3, 2017
“pre-dispute mandatory arbitration provisions are inappropriate in insurance policies and incompatible with the legal duties insurers owe policyholders when handling their claims.”…NAIC, National Association of Insurance Commissioners, August 15, 2016
“Our organization was founded to help Lutherans care for and support one another in time of need, guided by the principles of the Christian faith.”…Thrivent Code of Conduct
From Insurance Business Magazine.
“Arbitration? No thanks
Clicking “accept” on a company’s terms and conditions – something we do daily to use and pay for products and services – usually subjects us to lengthy contractual agreements, many of which contain mandatory arbitration clauses. Proponents of arbitration might think it’s the greatest thing since whole wheat artisanal sliced bread, but mandating arbitration in consumer contracts is troublesome, and it has no place in insurance policies for individuals and small businesses.
Over the last 10 to 15 years, the practice of requiring individuals to agree to arbitrate rather than litigate any future disputes (or forgo the product, service or employment altogether) has been heavily criticized by government agencies, the media, academics and consumer groups. Arbitration, it turns out, is not always faster and cheaper (the two major benefits claimed), and it can suppress the number of consumers pursuing legal remedies, the likelihood of success and the amount of damages.”
“However, placing mandatory arbitration clauses in insurance policies restructures this crucial aspect of the insurer-insured relationship. Companies presumably employ pre-dispute mandatory arbitration provisions because they believe arbitration generally benefits them – and a growing amount of research suggests they are right. In addition, arbitration proceedings are usually confidential, not subject to judicial or regulatory review (absent fraud), and may contractually limit remedies and damages policyholders would otherwise have under their state law. Manipulating the dispute resolution process in this manner in insurance is in conflict with the duties insurers owe their policyholders and is not holding their policyholders’ interests “at least equal to their own.”
These concerns are why NAIC consumer representatives have requested the NAIC amend the Model Unfair Trade Practices Act to prohibit mandatory pre-dispute arbitration clauses in insurance policies sold to individuals, and ideally small businesses. An NAIC working group is now considering this action.”
“Thanks to the strong presumption favoring state insurance regulation in the McCarran- Ferguson Act, states can regulate arbitration in insurance despite the Federal Arbitration Act [FAA], which otherwise pre-empts most state laws restricting arbitration. Every court considering the application of McCarran Ferguson to the FAA has acknowledged that states can ban or restrict arbitration clauses in insurance contracts as long as the state prohibition “regulates the business of insurance” and the proposed arbitration provision would prejudice that law’s purpose.”
From the NAIC, The National Association of Insurance Commissioners, August 15, 2016.
“Why arbitration clauses should be banned”
“Insurers that would insist on mandatory arbitration of policyholder disputes have selected the forum that they believe will be more favorable to them than to their policyholders, if not on each individual claim then in the aggregate. However, manipulating the dispute resolution process in this manner conflicts with the duties insurers owe their policyholders and is not holding their policyholders’ interests “at least equal to their own.”
If arbitration was truly a neutral forum rather than one favoring insurers, then there would be no need for an insurer to insist on its use before a dispute has even arisen. Insurers should utilize arbitration only when the policyholder has consented to do so after an actual dispute occurs (which is what the suggested amendment to the Model Unfair Trade Practices Act should accomplish), rather than requiring it in boilerplate language that the policyholder is very
unlikely to read, could not bargain over the provision even if she did, and could not make an informed decision at the point of sale on the merits. True freedom of contract, combined with the fundamental right to a trial, requires a knowing relinquishment of that right, which can only occur voluntarily once a specific dispute has materialized.”
From the NAIC 2018 Adopted Committee Charges.
“8. The Pre-Dispute Mandatory Arbitration Clauses (D) Working Group will:
A. Consider the use of: 1) pre-dispute mandatory arbitration clauses; and 2) choice-of-law and choice-of-venue clauses and, if appropriate, prohibit their use in any individual or commercial insurance policies by amending the Unfair Trade Practices Model Act (#880), developing a new model act or developing other guidance regarding their usage.”