The Insurance Disputes Law Review: USA

Overview

In the United States, insurance disputes are primarily governed by state law. Each state has its own statutory and common law applicable to insurance-related matters. Because the relevant law varies from state to state, practitioners must conduct a careful evaluation of potentially applicable law at the outset of an insurance dispute.

Most insurance disputes in the United States are litigated in the first instance in state or federal trial courts. Disputes may also be subject to arbitration if the insurance contract contains an arbitration clause. Where an insurance contract requires the parties to arbitrate but applicable state statutory law prohibits insurance-related arbitration, courts will address whether state law supersedes or pre-empts federal law or treaties favouring arbitration.

US courts have recently addressed a number of significant insurance-related issues, including general liability claims for alleged privacy violations, the scope of a securities claim under directors and officers (D&O) policies, and the availability of coverage for ransomware payments under commercial crime policy computer fraud provisions. Going forward, courts undoubtedly will continue to address the parameters of cyber-related coverage and the opioid epidemic, as well as, of course, coverage disputes arising out of climate change events and the novel coronavirus disease (covid-19).

The legal framework

i Sources of insurance law and regulation

The regulation of insurance in the United States is primarily performed by the states. In 1945, the US Congress passed the McCarran-Ferguson Act,2 which provides that 'No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance.'3 Under the McCarran-Ferguson Act, federal law preempts state insurance law only if it specifically relates to 'the business of insurance'.

The law of insurance in the United States generally falls into one of two broad categories: (1) the regulation of entities that participate in the business of insurance; and (2) the regulation of the policyholder–insurer relationship. State law pertaining to the regulation of entities is generally comprised of statutes enacted by state legislatures and administrative regulations issued by state agencies, such as departments of insurance.

Each state also has statutory and common law applicable to the policyholder–insurer relationship. State statutes address a range of topics, including, among others, the disclosure obligations of the parties to an insurance contract, the nature of a policyholder's notice obligations and the circumstances in which a victim of tortious conduct may sue a tortfeasor's insurer directly. State common law is an important source of law for resolving disputes between policyholder and insurer. Practitioners must carefully assess potentially applicable law at the outset of a dispute, as insurance law (whether common law or statutory) varies by jurisdiction.

ii Insurable risk

In the United States, the validity of an insurance contract ordinarily is premised on the existence of an insurable interest in the subject of the contract. An insurable interest may be defined as any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction or pecuniary damage.4 The insurable interest doctrine was first adopted by courts5 and has since been codified in state statutes.6 The purpose of the insurable interest requirement, as articulated by courts and commentators, is to discourage wagering and the destruction of life and property and avoid economic waste.

iii Fora and dispute resolution mechanics

Litigation of insurance disputes

The US judicial system is comprised of two separate court systems. The United States itself has a system comprised of federal courts and each of the 50 states has its own system comprised of state courts. Although there are important differences between federal and state courts, they share some key characteristics. Each judicial system has trial courts in which cases are originally filed and tried, a smaller number of intermediate appellate courts that hear appeals from the trial courts and a single appellate court of final review.

Unlike state courts, which include courts of general jurisdiction that can address most kinds of cases, federal courts principally have jurisdiction over two types of civil cases. First, federal courts may hear cases arising out of the US Constitution, federal laws or treaties.7 Second, federal courts may address cases that fall under the federal 'diversity' statute, which generally authorises courts to hear controversies between citizens of different US states and controversies between citizens of the United States and citizens of a foreign state.8 For diversity jurisdiction to exist, there must be 'complete' diversity between litigants (i.e., no plaintiff shares a state of citizenship with any defendant) and the 'amount in controversy' must exceed US$75,000.

Most insurance disputes are litigated in the first instance in federal or state trial courts. Federal courts commonly exercise jurisdiction over insurance disputes under the diversity statute. In this context, an insurance company, like any other corporation, is deemed to be a citizen of both the state in which it is incorporated and the state in which it has its principal place of business.

An insurance action that is originally filed in state court may be 'removed' to federal court based on diversity of citizenship of the litigants. In the absence of diversity of citizenship or some other basis of federal court jurisdiction, insurance disputes are litigated in state courts. The venue is typically determined by the place of injury or residence of the parties, or may be dictated by a forum selection clause in the governing insurance contract. The law applied to the dispute may likewise be dictated by a choice-of-law clause in the insurance contract or, in the absence of such a clause, determined by a court based on relevant choice-of-law principles.

Arbitration of insurance disputes

Some insurance contracts contain arbitration clauses, which are usually strictly enforced. The Federal Arbitration Act (FAA)9 and similar state statutes empower courts to enforce arbitration agreements by compelling the parties to arbitrate. If an insurance contract contains a broadly worded arbitration clause, virtually every dispute related to or arising out of the contract typically may be resolved by arbitrators rather than a court of law. One issue that has been a point of contention in matters involving an arbitration clause is whether a non-signatory to the agreement may be compelled to arbitrate a dispute with parties to the agreement. Resolution of this issue frequently turns on whether the non-signatory is deemed to be a third-party beneficiary to the agreement or is equitably estopped from arguing that its status as a non-signatory precludes enforcement of arbitration because it seeks to benefit from other provisions of the agreement.10

While all US states recognise the validity and enforceability of arbitration agreements in general, some states have made a statutory exception for arbitration clauses in insurance contracts. Complex legal issues may arise when an insurance contract obligates parties to arbitrate but applicable state statutory law prohibits the arbitration of insurance-related disputes. Although state laws that prohibit arbitration are generally pre-empted by the FAA, by virtue of the Supremacy Clause in the US Constitution, state anti-insurance arbitration statutes may be saved from pre-emption by the McCarran-Ferguson Act. As noted, the McCarran-Ferguson Act provides that state laws enacted 'for the purpose of regulating the business of insurance' do not yield to conflicting federal statutes unless a federal statute specifically relates to the business of insurance. Because the FAA does not specifically relate to insurance, courts have held that the FAA may be 'reverse preempted' by a state anti-insurance arbitration statute if the state statute has the purpose of regulating the business of insurance.11 As discussed in Section IV, courts are split regarding whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), an international treaty that mandates the enforcement of arbitration agreements, may be reverse pre-empted pursuant to the McCarran-Ferguson Act.

Where an insurance dispute is resolved through arbitration, the resulting award is generally considered to be binding, although there are grounds to vacate or modify an award under the FAA, similar state statutes and the New York Convention. The FAA describes four limited circumstances in which an arbitration award may be vacated by a court: (1) where the award was procured by corruption, fraud or undue means; (2) where there was evident partiality or corruption in the arbitrators; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy; or if by any other misbehaviour the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.12 One area of legal uncertainty is whether a court may vacate an award based on an arbitrator's 'manifest disregard' of the law. Although the manifest disregard standard is not listed in the FAA, some courts have ruled that an award may be vacated on this basis.

Recent cases

US courts recently have addressed a number of significant insurance-related issues, including general liability claims for alleged privacy violations, the scope of a 'securities claim' under D&O policies and the availability of coverage for ransomware payments under commercial crime policy computer fraud provisions.

i General liability coverage of privacy claims

Courts have recently addressed the scope of coverage under general liability policies for claims arising out of alleged violations of privacy. One central issue in these cases is whether there has been the requisite 'publication' of private information to constitute a 'personal and advertising injury' under the policy.

In West Bend Mutual Insurance Co v. Krishna Schaumburgh Tan, Inc.,13 the Illinois Supreme Court affirmed the appellate court's ruling that an insurer must defend a suit alleging violations of the Biometric Information Privacy Act (BIPA), a federal statute that protects individuals from the unlawful collection and storing of sensitive personal information. In ruling that the underlying complaint sufficiently alleged a publication of information in violation of the claimant's right to privacy based on the policyholder's alleged disclosure of customers' fingerprints to a third-party vendor, the Court held that publication can reasonably mean disclosure to a single party and is not limited to disclosure to the general public at large. The Court further held that the right to privacy includes the right to keep biometric identifiers (e.g., fingerprints, retina scans, voiceprints) secret from disclosure to others.

The Court also held that a 'violation of statutes' exclusion did not bar coverage because the exclusion applies only to statutes that regulate methods of communication, such as telephone calls, faxes and emails, while the BIPA regulates the collection, use and handling of biometric information, which is 'fundamentally different' from the regulation of modes of communication. Several cases relating to the scope of general liability coverage for BIPA violations are currently pending in federal district courts.

In Landry's Inc v. Insurance Company of the State of Pennsylvania,14 a federal appellate court ruled that a credit card data breach constitutes a publication that triggers an insurer's duty to defend. The policyholder sought coverage for assessments imposed in connection with a data breach that compromised the personal data of millions of credit card holders. A Texas federal district court dismissed the suit, holding that the hacker's accessing of data alone did not constitute a publication and that the damages sought were not privacy damages because the suit was brought by a bank and a processing company based on the policyholder's alleged failure to follow industry cybersecurity standards, rather than by consumers whose personal data was improperly obtained.

The appellate court reversed that decision, holding that the underlying complaint alleged claims potentially within the policy's coverage on the grounds that the policy's reference to 'publication in any manner' provided 'the broadest possible definition' of publication. The complaint alleged that the policyholder exposed customers' credit card data to hackers as it was routed through the company's computer system and that hackers used that data to make fraudulent purchases. The court held that '[b]oth disclosures “expos[ed] or present[ed]”' personal information and that 'either one standing alone would constitute the sort of “publication” required by the Policy'. Further, the court ruled that the underlying claims adequately alleged injury arising out of a violation of privacy, holding that the policy extended coverage not simply to violations of privacy rights, but to 'all injuries that arise out of such violations'.

ii The scope of a securities claim under a D&O policy

Three recent decisions have addressed the parameters of a securities claim for purposes of coverage under a D&O policy.

In In re Solera Insurance Coverage Appeals,15 the Supreme Court of Delaware ruled that an appraisal action is not a covered securities claim, defined by the policy as a claim 'made against [Solera] for any actual or alleged violation of any federal, state or local statute, regulation, or rule or common law regulating securities'. Reversing the trial court decision, the Court held that an appraisal action does not involve a violation of law or regulation because a violation requires an element of wrongdoing, whereas an appraisal action is a neutral remedy limited to the determination of the fair value of stock shares.

A Delaware federal court also limited the scope of covered securities claims in Calamos Asset Management, Inc v. Travelers Casualty and Surety Company of America,16 ruling that an excess D&O insurer had no duty to indemnify losses arising out of a lawsuit by shareholders alleging that directors and officers of the insured company breached their fiduciary duties in connection with a company merger. The court held that breach of fiduciary duty allegations are not covered securities claims. Although the relevant policy provision defined a securities claim to include any actual or alleged violation of a 'statutory or common law' rule, the court held that the phrase 'regulating securities' imposes its own, distinct requirements because 'regulations, rules or statutes that regulate securities are those specifically directed towards securities, such as the sale, or offer for sale, of securities'. Rejecting the argument that fiduciary claims could fall within the scope of this coverage provision, the court reasoned that fiduciary claims do not depend on the involvement of a security and can involve a variety of claims arising from breach of trust or duty of care.

A New York federal court also denied coverage in Hertz Global Holdings, Inc v. National Union Fire Insurance Company of Pittsburgh,17 ruling that an investigation by the Securities and Exchange Commission (SEC) was not a covered securities claim, defined as 'a Claim, other than an investigation of an Organization . . . alleging violation of securities laws or regulations'. The court held that this language excluded the federal regulatory investigation from coverage, rejecting the assertion that the investigation constituted a covered administrative or regulatory proceeding. The court also rejected the contention that the SEC order issued in connection with the investigation was a claim alleging a violation of securities laws. The court explained that language in the investigation order stating that the SEC has information that tends to show multiple possible violations is not equivalent to an actual claim.

iii Coverage of ransomware payments

Ransomware, a form of malware designed to extort ransom payments from companies or individuals by encrypting data and demanding payment for decryption instructions, has become increasingly common and sophisticated. Several courts have recently addressed the scope of coverage for ransomware payments under computer fraud provisions of commercial crime policies.

In G&G Oil Company of Indiana, Inc v. Continental Western Insurance Company,18 the Indiana Supreme Court ruled that ransomware losses may be subject to coverage under a computer fraud policy provision. The computer fraud policy provision covered loss 'resulting directly from the use of any computer to fraudulently cause a transfer of that property'. The trial court, affirmed by the court of appeals, ruled that the insurer owed no coverage for the ransomware attack losses because the policyholder's payments to hackers to regain access to its computer systems following a ransomware attack were not caused by the fraudulent use of a computer, but rather were the result of theft. The Indiana Supreme Court reversed this decision. The Court first noted that G&G Oil's declination of computer hacking and computer virus coverage under another part of the policy was not dispositive of its claim. With respect to the policy language, the court held that the term 'fraudulently cause a transfer' is unambiguous and means 'to obtain by trick', but remanded the case for further fact-finding on whether the hackers accessed the company's computer system using 'some sort of deception', noting that '[w]e do not think every ransomware attack is necessarily fraudulent.' The Court further held that the term 'resulting directly' required loss that resulted either 'immediately or proximately without significant deviation from the use of a computer', and that the trial court erred in ruling as a matter of law that G&G Oil's voluntary payment of ransom was an intervening cause that severed the causal chain of events. The court noted that the payment was '“voluntary” only in the sense G&G Oil consciously made the payment', but that it 'more closely resembled one made under duress' and as a result the payment was 'not so remote that it broke the causal chain'.

In Mississippi Silicon Holdings LLC v. Axis Insurance Company,19 a federal appellate court affirmed a district court ruling denying coverage of losses incurred in connection with an email phishing scam. The crime policy's computer transfer fraud provision applied to loss 'resulting directly from computer transfer fraud' that caused the company to pay money to a third party without the company's 'knowledge or consent'. The district court held that the policy's social engineering coverage, with a US$100,000 limit, was triggered by the claim, but the computer transfer fraud provision, with a US$1 million limit, did not apply because the fraudulent emails did not manipulate the insured's computer system in any way and the transfers were sent voluntarily by the insured's employees. The appellate court affirmed, holding that the company's employees affirmatively authorised the transfers and therefore the computer transfer fraud provision, which expressly limits coverage to circumstances in which transfers occurred without the company's knowledge or consent, did not apply. The court declined to address the 'complicated question' of whether the company's loss 'result[ed] directly from' a fraudulent scheme.

The international arena

Complex jurisdictional issues may arise when an international insurance contract mandates arbitration of disputes but applicable state law prohibits such arbitration. In these circumstances, courts must address the interplay between governing state law and the New York Convention, which obligates the enforcement of foreign arbitration agreements. More specifically, such disputes require a determination of whether the New York Convention pre-empts state law such that arbitration is required or, conversely, whether state law reverse pre-empts the New York Convention pursuant to the McCarran-Ferguson Act, such that disputes may be litigated in a court of law.

Federal courts of appeals are divided on this critical issue of international insurance law. The Court of Appeals for the Fifth Circuit recently ruled that an arbitration clause was enforceable notwithstanding a state statute banning insurance arbitration and a 'conformity-to-statute' clause in the insurance policy. In McDonnel Group, LLC v. Great Lakes Insurance SE, UK Branch,20 the insurers argued that the dispute, relating to the scope of coverage under a builder's risk policy, was subject to arbitration pursuant to the policy's arbitration provision. However, the policyholder argued that the arbitration provision was invalid because (1) Louisiana statutory law expressly prohibits arbitration agreements in insurance policies covering property located within the state, and (2) the operative policy contains a conformity-to-statute provision stating that '[i]n the event any terms of this Policy are in conflict with the statutes of the jurisdiction where the Insured Property is located, such terms are amended to conform to such statutes'.

The Fifth Circuit ruled that reverse pre-emption under the McCarran-Ferguson Act did not apply. The Court reasoned that reverse pre-emption is limited to US federal legislation and does not encompass an international treaty such as the New York Convention. The Court therefore dismissed the coverage dispute in favour of arbitration.

The other federal appellate courts that have addressed whether reverse pre-emption pursuant to the McCarran-Ferguson Act extends to international disputes involving the New York Convention have reached conflicting conclusions. Compare Stephens v. Am Int'l Ins Co,21 with ESAB Grp Inc v. Zurich Ins PLC.22

Trends and outlook

i Cyber breaches, data loss and computer fraud

Data breach incidents, cyberattacks and hacking activities designed to obtain financial gain or access to sensitive personal information continue to proliferate at an unprecedented rate. As such, courts undoubtedly will be called upon to address the parameters of both first-party property and third-party liability insurance coverage for myriad cyber-related claims. A growing body of case law is defining the scope of coverage for losses arising out of fraudulently induced wire transfers under computer fraud provisions. In the coming months and years, courts will continue to apply governing state law to decide whether various coverage or exclusionary provisions in general liability and crime policies encompass specific factual scenarios. Additionally, as highlighted and discussed in Section III, courts will continue to address novel questions of law, such as whether cyber-related losses, including damage to software or other computer system components, constitutes covered 'property damage' under general liability or first-party policies; whether and under what circumstances hackers' intentional taking of sensitive data constitutes a publication of private information sufficient to trigger personal and advertising injury coverage; the timing and number of losses or occurrences under applicable policy language; and the scope of coverage under directors and officers policies for cyber-related claims against a company by its shareholders or by regulatory agencies. Furthermore, the applicability of certain exclusions, including those related to acts of war or terrorism, professional services or disputes based on contract, are likely to take centre stage in emerging cyber-coverage disputes.

Another recent development in this context is the issuance of formal advisories by US federal agencies relating to risks of ransomware payments. Specifically, the US Department of the Treasury's Office of Foreign Assets Control (OFAC) and its Financial Crimes Enforcement Network (FinCEN) concurrently issued formal advisories warning cyber insurance firms and others of the regulatory risks associated with ransomware payments to global bad actors, including certain designated persons and entities on OFAC's Specially Designated Nationals and Blocked Persons (SDN) List pursuant to cyber-related sanctions implemented by the US government. OFAC's advisory reiterates informal guidance, cautioning that, in the absence of a licenxe, it is a violation of law for a US person or entity to pay or facilitate a ransomware payment to a party on the SDN List, even if it did not know or have reason to know that it was engaging in a transaction of this kind. Relatedly, FinCEN's advisory explains about the regulatory risks for entities that process ransomware payments. These and other advisories serve as a message of caution to insurance companies offering cyber insurance products that reimburse insureds for ransomware payments to take care in ensuring that those payments do not run afoul of recently enacted regulations.

ii Climate change

Climate change is an emerging concern for insurers, based on the increasing frequency of wildfires, storms, floods and other natural disasters. As such, future litigation is likely to implicate the scope of coverage under both first-party property and third-party liability policies for the catastrophic losses – both physical and economic – associated with such natural disaster events.

With respect to first-party policies, disputes may involve interpretation of policy provisions relating to causation, particularly where losses are caused by a complex interaction of perils, such as wind, rain and storm surge. Given that property policies often provide coverage for certain perils while excluding others, future litigation arising from weather-related events are likely to implicate this issue. Indeed, complex issues of interrelated causation frequently took centre stage in prior coverage disputes arising out of Hurricane Katrina and other major storms to impact the United States.

Coverage under third-party policies for damage caused by severe weather events are likely to be the source of litigation in coming years. In this context, a central issue for courts may be whether climate change or greenhouse gas emission claims give rise to a covered occurrence for purposes of liability coverage. The sole US court to address this issue thus far ruled that an insurer had no duty to defend or indemnify a policyholder for underlying nuisance claims relating to carbon dioxide and greenhouse gas emissions. In AES Corp v. Steadfast Insurance Co,23 the court reasoned that the underlying claims did not allege an occurrence because the damage was not accidental, but rather the natural and foreseeable consequence of the policyholder's intentional emissions. Other courts may confront similar coverage claims arising out of policyholders' detrimental contributions to climate change. Outcomes are likely to depend on not only the particular factual scenario presented, but also policy language and applicable law. More specifically, future decisions are likely to turn, in part, on governing law relating to whether conduct may deemed an accidental occurrence if the resulting harm is expected or foreseeable, even if not intended.

Similar coverage disputes may arise in connection with pending cases against oil and gas industry giants, who face civil and regulatory litigation over their alleged role in global warming. Litigation has also been filed against the federal government and various state governments based on the alleged failure to safeguard the environment. To the extent that these defendants seek insurance coverage, complicated issues pertaining to justiciability, fortuity, actual property damage and trigger and allocation of coverage are likely to follow.

iii Opioid litigation

The opioid epidemic has given rise to mass litigation against pharmaceutical manufacturers and distributors, often brought by local, state and federal government agencies seeking to recover the enormous expenses that have resulted from opioid addiction. These lawsuits have, in turn, spurred coverage suits against insurers for defence and indemnification of the underlying claims. Over the past year, courts have begun to address the extent to which opioid epidemic claims trigger a general liability insurer's contractual obligations.

One court has ruled that an insurer had no obligation to defend or indemnify an opioid distributor in a suit filed by government agency entities seeking to recover the costs incurred in combating the opioid crisis, finding that the underlying claims sought damages for economic loss rather than for covered bodily injury. However, certain other courts have required general liability insurers to defend opioid litigation, finding that the underlying claims, although not brought by individuals suffering from opioid addiction, nonetheless allege damage 'because of' bodily injury, as required by the particular policy language at issue.

Courts have also recently addressed the number of operative occurrences for determining policy limits or deductibles due. For example, two courts have held that, for purposes of determining the insurer's duty to defend, the underlying opioid claims allege only one occurrence based on the policyholder's allegedly negligent conduct in failing to implement proper controls over opioid distribution and sales, rather than multiple occurrences based on the separate acts of distributing and dispensing. Future litigation will most likely address similar issues in the duty to indemnify context, as well as the application of specific policy exclusions and questions concerning the relevant trigger for insurance coverage.

iv Covid-19

The global spread of the novel coronavirus disease (covid-19) has had major impacts on businesses, financial markets and international commerce, which in turn, has led to a flood of suits against insurers for coverage of losses. A central issue in this emerging area of coverage litigation is whether there has been physical damage to insured property. The physical damage requirement is inherent in most business interruption provisions, which insure against a loss of business income caused by covered physical damage to the insured's own property. A physical loss requirement is also included in most civil authority provisions, which cover loss of income resulting from restrictions on access to insured premises by a government or civil authority.

The first wave of covid-19-related coverage litigation has centred on whether the loss of use of property that has become uninhabitable or unusable because of actual or potential covid-19 contamination constitutes a physical loss for purposes of business interruption coverage. Although the law is still developing, the majority of courts have concluded that claims seeking coverage for covid-19 pandemic-related business losses are outside the scope of insurance coverage. These courts have ruled that policyholders' inability to use their property for its intended purpose (because of government restrictions on access, capacity, hours or type of service) does not constitute 'physical loss or damage' to property, as required by most property policies. Most courts have also rejected policyholders' efforts to obtain coverage under civil authority coverage provisions on the basis that there has been no physical loss or damage to property in close proximity to the insured property. A significant number of courts have also ruled that virus or communicable disease exclusions operate to bar coverage for covid-19-related claims, rejecting policyholder assertions that virus exclusions are ambiguous or inapplicable.

A minority of courts have allowed covid-19-related claims to proceed based on the specific factual allegations and policy language. Some courts have concluded that allegations of the actual presence of the virus on physical surfaces adequately plead physical loss or damage under the policy, while others have declined to dismiss litigation on the basis that physical loss can include property that is temporarily uninhabitable. A few courts have allowed covid-19 coverage claims to proceed based on the policyholder's reasonable expectations or ambiguity in policy language.

In addition to continuing to address these issues, future covid-19 coverage litigation is likely to involve application of ensuing loss and concurrent causation provisions if losses are caused by a combination of factors. In addition, courts are likely to face valuation issues in relation to proof and extent of business losses, as well as 'number of occurrences' disputes – an issue that will have important implications for deductible payments and application of policy limits.

Footnotes

1 Susannah Geltman is a partner and Summer Craig is counsel at Simpson Thacher & Bartlett LLP. The authors would like to acknowledge Karen Cestari of Simpson Thacher & Bartlett LLP for her contribution to this chapter.

2 15 U.S.C. §§ 1011-15 (1945).

3 id. § 1012(b).

4 See generally Steven Pitt et al., Couch on Insurance § 41:1 (3rd ed. 2019).

5 See, e.g., Kramer v. Phoenix Life Ins. Co., 940 N.E.2d 535 (N.Y. 2010) (discussing common law origins and codification of New York insurable interest requirement).

6 See, e.g., Cal. Ins. Code §§ 280, 281 (2019).

7 28 U.S.C. § 1331 (1980).

8 28 U.S.C. § 1332(a) (2011).

9 9 U.S.C. §§ 1-16 (1947).

10 See, e.g., Philadelphia Indem. Ins. Co. v. SMG Holdings, Inc., 2019 WL 7790891 (Cal. Ct. App. Dec. 31, 2019); Wilson v. Willis, 2019 WL 1549924 (S.C. Apr. 10, 2019).

11 See, e.g., Standard Life Ins. v. West, 267 F.3d 821 (8th Cir. 2001) (Missouri statute's insurance arbitration bar reverse pre-empts FAA pursuant to McCarran-Ferguson Act).

12 9 U.S.C. § 10(a) (2002).

13 No. 125978 (Ill. May 20, 2021).

14 2021 WL 3075937 (5th Cir. July 21, 2021).

15 2020 WL 6280593 (Del. Oct. 23, 2020).

16 2021 WL 663056 (D. Del. Feb. 19, 2021).

17 2021 WL 1198802 (S.D.N.Y. Mar. 30, 2021).

18 2021 WL 1034982 (Ind. 2021).

19 No. 20-60215 (5th Cir. Feb. 4, 2021).

20 923 F.3d 427 (5th Cir. 2019).

21 66 F.3d 41 (2d Cir. 1995).

22 685 F.3d 376 (4th Cir. 2012).

23 725 S.E.2d 532 (Va. 2012).

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