DOES THE FOREIGN POLICY DOCTRINE APPLY TO ARMENIAN GENOCIDE INSURANCE CLAIMS?
Insurance Law & Litigation Week
July 16, 2012
Eric M. Khodadian, Genocide & Insurance: A Review of Movsesian v.
Victoria Versicherung AG, 21 S. Cal. Rev. L. & Soc. Just. 245 ( )
>From 1915 to 1923, the Ottoman Empire murdered 1.5 million of its
Armenian population by way of massacres and death marches through the
desert. In order to protect U.S. security interests with Turkey, the
United States has avoided characterizing the massacres as genocide
and opposed congressional resolutions that would do the same. In
2000, California passed Senate Bill 1915, codified as §354.4 of the
California Code of Civil Procedure, which extended the statute of
limitations until Dec. 31, 2010, for Armenian genocide heirs to file
claims against insurance providers who allegedly owe them money. Eric
Khodadian provides background information on the Armenian genocide and
U.S. efforts to acknowledge it, examines the foreign affairs doctrine,
analyzes the Movsesian case, contends that to preempt §354.4, the
insurers in the Movsesian case must show that U.S. foreign policy
conflicts with §354.4, and concludes that the foreign affairs
doctrine is irrelevant because California’s decision to characterize
the Armenian massacres as genocide is not subject to judicial review
or preemption by federal law.
In December 2003, Vazken Movsesian filed a class action suit against
German insurers Victoria Versicherung AG, Versicherungsgruppe AG, and
Munchener Ruckversicherungs-Gesellshaft Aktiengesells AG (collectively,
Munich Re), claiming that Munich Re failed to honor his ancestor’s life
insurance policy. Munich Re argued that the foreign affairs doctrine,
which provides that states cannot interfere with or conduct foreign
policy, preempts Movsesian’s claims. The district court held that
Movsesian could sue Munich Re under §354.4, which it concluded was
not preempted by the foreign affairs doctrine.
In 2008, the Ninth Circuit granted Munich Re’s interlocutory appeal
to determine whether §354.4 was unconstitutional on the ground that
it contravened the federal government’s exclusive power to conduct
foreign affairs. Although the Ninth Circuit initially ruled in
favor of Munich Re, the same three-judge panel later overturned its
decision and ruled in favor of Munich Re. In 2012, by en banc appeal,
the Ninth Circuit unanimously held that the foreign affairs doctrine
preempted §354.4. Movsesian’s attorneys indicated that they will
likely petition the U.S. Supreme Court for review.
Party attempting to invalidate the law must show it conflicts with
U.S. foreign policy. The author concludes that the foreign affairs
doctrine is irrelevant because California’s choice to characterize the
massacre as genocide is not subject to judicial review or preemption
by federal law. Since there is no consistent U.S. foreign policy on
the issue of Armenian genocide, Munich Re cannot argue that foreign
affairs policy preempts § 354.4. Furthermore, the foreign affairs
doctrine is inapplicable because §354.4’s use of the word genocide
is purely descriptive and, therefore, the foreign affairs doctrine
is irrelevant because Munich Re ris objecting to the words that
California used to describe Armenian history.
The author cautions that if the U.S. Supreme Court grants certiorari
and sides with Munich Re, it will set precedent that any state law
mentioning Armenian genocide will be invalid and set a dangerous
precedent that, for reasons of foreign policy, the U.S. President
may censor state governments from discussing history.
Source: Insurance Law and Litigation Week, 07/16/2012