VIRGINIA. Insurance Authorization Status

Transcription

1 VIRGINIA Page Insurance Authorization Status... 1 Contract Enforceability by Unauthorized Insurers... 1 Enforceability of Arbitration Provisions... 1 Enforceability of Choice of Law Provisions... 2 Enforceability of Choice of Forum Provisions... 3 Cancellation of an Insurance Policy... 4 Waiver of Statutory Rights... 4 Insurance Authorization Status Under Virginia law, no foreign or alien insurer shall transact insurance in the commonwealth until it has obtained both a license from the State Corporation Commission, and a certificate of authority. VA. CODE ANN , A transaction that involves the issuance and delivery of an insurance policy outside Virginia in a jurisdiction in which the insurer is authorized to do business, where the premiums are paid and the policy is negotiated outside Virginia, should not be considered the transaction of an insurance business in Virginia. See State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451 (1962), 82 S.Ct. 1380, 8 L.Ed.2d 620 (United States Supreme Court held that a State did not have the power to regulate a transaction that took place entirely outside of the State merely because the risk insured was located in the State); but cf. Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (outside the context of insurance, the Court held that the Due Process Clause does not prohibit enforcement of a State s use tax against an out-of-state mail-order house that did not have an outlet or representatives in the State). Contract Enforceability by Unauthorized Insurers [A]ny insurance contract made in violation of the laws of [Virginia] may be enforced against the insurer. VA. CODE ANN Before an unauthorized insurer may defend a suit to enforce an insurance contract, the insurer must satisfy a pre-answer security provision, which requires an unauthorized insurer either to file a bond sufficient to secure payment of any final judgement or to obtain a certificate of authority. VA. CODE ANN (A). Enforceability of Arbitration Provisions The Virginia insurance code prohibits agreements in insurance contracts delivered or issued for delivery in Virginia that deprive Virginia courts of jurisdiction with

2 respect to actions against an insurer. Section provides: courts should provision. enforce an arbitration in this Commonwealth shall contain any * * * * 2. Depriving the courts of this Commonwealth of jurisdiction in actions against the insurer. agreement shall be void, but such voiding shall not affect the validity of the remainder of the contract. VA. CODE ANN (emphasis added). To trigger the prohibition against arbitration clauses in insurance contracts, requires that the policy be delivered or issued for delivery in Virginia. There are no relevant reported cases wherein the state courts of Virginia construe this statute, but see discussion of in the Enforceability of Choice of Law Provisions section. The Virginia Arbitration Code permits parties to agree to arbitrate a future dispute. VA. CODE ANN Accordingly, if is inapplicable, the Virginia 2 Enforceability of Choice of Law Provisions Section also prohibits provisions that require construction of an insurance contract delivered or issued for delivery in Virginia to be governed by the law of another state. The statute provides as follows: in this Commonwealth, shall contain any 1. Requiring the contract to be construed according to the laws of any other state or country... agreement shall be void, but such voiding shall not effect the validity of the remainder of the contract. VA. CODE ANN No Virginia State Court has interpreted or applied , but in Travelers Indem. Co. of America v. Miller Building Corp., 2003 WL (E.D. VA slip op. 12/24/03), reversed on other grounds, a federal district court noted that the Virginia Courts define delivered as the place where the last act necessary to give a

3 contract validity took place. (citations omitted) In Miller Building, the court ruled that the last event occurred in Virgina, and thus ruled that Virginia law applied, despite the fact that the Insured was based in North Carolina. Thus, the reasoning set forth above in Enforceability of Arbitration Provisions, may be followed with respect to the enforceability of choice of law provisions. Accordingly, only policies that are delivered or issued for delivery in Virginia covering subjects located in Virginia would be prohibited from containing choice of law clauses. Virginia law looks favorably upon choice of law clauses in a contract, giving them full effect except in unusual circumstances. Hitachi Credit America Corp. v. Signet Bank, 166 F.3d 614 (4 th Cir. 1999) (citing Tate v. Hain, 25 S.E.2d 321, 324 (Va.1943)). See also, Global One Communications v. Ansaldi, 2000 WL (Va.Cir.Ct. May 5, 2000). Accordingly, if is inapplicable, the Virginia courts should enforce a choice of law provision. Enforceability of Choice of Forum Provisions Under Virginia law, forum selection clauses are prima facie valid and should be enforced, unless the party challenging the enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power. Paul Bus. Sys., Inc. v. Canon U.S.A., Inc., 240 Va , 342, 397 S.E.2d 804, 807 (1990). This rule comports with traditional concepts of freedom of contract and recognizes the present nationwide and worldwide scope of business relations which generate potential multi-jurisdictional litigation. Id. See also Vulcan Chemical Technologies, Inc. v. Barker, 297 F.3d 332 (4 th Cir. 2002). No court has addressed whether this rule applies to forum selection clauses in insurance contracts. The Virginia Insurance Code, however, prohibits forum selection provisions: in this Commonwealth shall contain any * * * * * 2. Depriving the courts of this Commonwealth of jurisdiction in actions against the insurer. agreement shall be void, but such voiding shall not affect the validity of the remainder of the contract. VA. CODE. ANN By its own terms, this provision only applies to insurance contracts which are delivered or issued in Virginia. See Enforceability of

4 Arbitration Provisions and Enforceability of Choice of Law Provisions above. Cancellation of an Insurance Contract The Virginia insurance code does not provide circumstances under which a cancellation of a commercial policy must be based. Waiver of Statutory Rights No Virginia state or federal court cases were found that expressly discussed the issue of the validity of a contractual waiver of statutory rights. 4

5 ENDNOTES 1 Section of the Virginia insurance code provides: A. For the purposes of issuing a temporary or permanent injunction... to restrain unlicensed foreign or alien insurers from transacting the business of insurance in this Commonwealth, the following acts, effected by mail or otherwise, shall constitute transacting the business of insurance in this Commonwealth: 1. The issuance or delivery of insurance contracts to residents of this Commonwealth or to corporations authorized to do business in this Commonwealth; 2. The solicitation of applications for such contracts; 3. The collection of premiums, membership fees, assessments or other considerations for such contracts; or 4. The transaction of any other insurance business in connection with such contracts. * * * D. This section shall not apply to the following acts: * * * 5. The procuring of insurance contracts issued to an industrial insured. For the purpose of this section, an industrial insured is an insured (i) who procures the insurance of any risk by use of the services of a full-time employee acting as an insurance manager or buyer, (ii) whose aggregate annual premiums for insurance on all risks total at least $25,000, and (iii) who has at least 25 full-time employees. VA. CODE. ANN The General Counsel s Office of the Virginia State Corporation Commission previously stated that this provision is a matter of ongoing investigation regarding its ambiguity, hopefully to be addressed by the Virginia Legislature. However, as of January 2007, the department has not published an official position regarding the interpretation of The ambiguity may arise from the application of By its language, the Industrial Insured exemption would appear to only apply to the circumstance where the state, or its regulators, are seeking an injunction to stop an insurer from conducting business. Whether this exemption applies to the general license requirement is uncertain. 5