Insurance Litigation

Insurance is a contract, called an insurance policy, in which the insurer, agrees to pay the insured party all or a portion of any loss suffered by accident or death, for a fee called an insurance premium. The losses covered by the policy may include property damage or loss from accident, fire, theft or intentional harm; medical costs and/or lost earnings due to physical injury; long-term or permanent loss of physical capacity; claims by others due to the insured's alleged negligence, or the loss of someone's life.

While types of insurance vary widely, their primary goal is to allocate the risks of a loss from the individual to a great number of people. Each individual pays a "premium" into a pool, from which losses are paid out. The premium, if not returnable, is a loss is not suffered, in that case the payment is for 'peace of mind". Thus, when a loss is suffered, the loss is spread to the people contributing to the pool. To ensure these pools are properly managed and adequately funded, the government and the courts heavily regulate the insurance industry.

In 1944, Congress enacted the McCarran-Ferguson Act (15 USCS § § 1011), which provided that the laws of the several states should control the insurance business, but that the Sherman Act,the Clayton Act, and the Federal Trade Commission Act were applicable to the insurance business to the extent that it was unregulated by state law.

The McCarran-Ferguson Act, broadly speaking, gives states the power to regulate the insurance industry. While state insurance statutes override most federal laws, some portions of federal law (like federal tax laws) are always controlling. To determine whether a particular law governs, the determining factor is whether the issue is related to the "business of insurance", where state law governs, or whether it is related to peripherals of the industry, such as labor, tax, and securities, where federal law governs.