BILL ANALYSIS �
AB 173
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ASSEMBLY THIRD READING
AB 173 (Gatto)
As Amended March 30, 2011
2/3 vote. Urgency
JUDICIARY 10-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Silva, Huber, | | |
| |Huffman, Jones, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Permits Armenian Genocide victims, as defined, or
their heirs or beneficiaries, who are residents of this state,
to file suit in a California court against certain insurers to
recover proceeds due under specified insurance policies until
December 31, 2016. Specifically, this bill :
1)Defines "Armenian Genocide victim" to include any person of
Armenian or other ancestry living in the Ottoman Empire during
the period of 1915 to 1923, inclusive, who died, was deported,
or escaped to avoid persecution during that period.
2)Defines "insurer" to mean any insurance provider doing
business in California, or that is otherwise subject to
California jurisdiction, that sold insurance policies covering
persons or property in Europe or Asia at any time between 1875
and 1923.
3)Permits, notwithstanding any other provision of law, an
Armenian Genocide victim, or the heir or beneficiary of an
Armenian Genocide victim, who resides in this state and has a
claim arising out of an insurance policy or policies purchased
or in effect in Europe or Asia between 1875 and 1923, to bring
an action or continue a pending action in a California court,
which shall be deemed the proper forum for that action until
its completion or resolution.
4)Provides that any action described above shall not be
dismissed for failure to comply with the applicable statute of
limitation, provided the action is filed on or before December
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31, 2016.
5)Contains an urgency clause, allowing this bill to take effect
immediately upon enactment.
FISCAL EFFECT : None
COMMENTS : The author introduced this bill to ensure that
victims of the Armenian Genocide, and their heirs or
beneficiaries, would be provided an opportunity to resolve their
insurance claims on the merits. During the late nineteenth and
early twentieth centuries, insurance companies marketed
insurance policies to Armenians living in historic Armenia, then
part of the Ottoman Empire. It is estimated that approximately
10,000 polices were sold at that time. From 1915 until 1923,
most scholars agree, approximately 1.5 million Armenians were
subject to forced marches, torture, and murder. Families were
separated and those who were not killed were either deported or
fled persecution.
Although the number of persons residing in California who
directly experienced the Armenian Genocide is of course
dwindling, many heirs and beneficiaries entitled to proceeds
under insurance policies purchased by the victims still reside
in the state. Although many California families have sought to
resolve these claims, the dislocation caused by war and diaspora
has made it difficult for them to document that their family
members were insured. Additionally, as the author of the
original legislation noted, there is evidence that insurers
demanded that the survivors produce death certificates, even
though neither the Ottoman or Turkish governments ever issued
death certificates for the hundreds of thousands of Armenian
victims. Finally, even when families overcame these obstacles
and gathered the necessary evidence and documents, they found
that their claims were barred by a four-year statute of
limitation on bringing claims for liabilities based on a written
document. In order to address this problem, SB 1915
(Poochigian, Chapter 543, Statutes of 2000) gave victims, heirs,
and beneficiaries of the Armenian Genocide until December 31,
2010, to bring their causes of action, even if those actions
were otherwise barred by the applicable statute of limitation.
Code of Civil Procedure (CCP) Section 354.4, the original
statute extending the time for bringing actions to victims of
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the Armenian Genocide and their heirs, was one of a series of
measures enacted between 1998 and 2002 that extended the statute
of limitation for victims of wartime atrocities. All of these
statutes permitted claimants to bring their actions until
December 31, 2010. CCP Section 354.3 permits persons to bring
claims to recover "Holocaust-era artworks" taken by the Nazis
during World War II. CCP Section 354.5 permits victims of the
Holocaust, or their heirs or beneficiaries, to bring claims
based on insurance policies issued in Europe before 1945. CCP
Section 354.6 permits victims of Nazi slave and forced labor
programs to recover compensation for labor from any entity, or
its successor in interest, who benefitted from that labor.
All of these statutes have been successfully challenged on
preemption grounds, although the ruling originally striking down
the Armenian Genocide statute was subsequently reversed upon
rehearing. �See Von Saher v. Norton Simon Museum of Art of
Pasadena (2010) 592 F.3d 954 (holding that CCP Section 354.3, on
recovery of art, was preempted under the foreign policy field
preemption doctrine); Steinberg v. International Commission on
Holocaust Insurance Claims (2005) 133 Cal. App. 4th 944 (holding
that CCP 354.5, on Holocaust-era insurance claims, was preempted
by a federal policy favoring settlement of such claims through
the International Commission on Holocaust Era Insurance Claims);
Deutsch v. Turner Corp. (2003) 317 F.3d 1105 (holding that CCP
354.6, on slave labor, was preempted under foreign policy field
preemption doctrine); Movsesian v. Victoria Versicherung AG
(2009) 578 F.3d 1052 (holding that CCP 354.4, on Armenian
Genocide insurance claims, was preempted by federal law);
reversed upon rehearing, Movsesian v. Victoria Versicherung AG
(Dec. 10, 2010) 629 F.3d 901; 2010 US App LEXIS 24225.]
In its recent reversal on the Armenian Genocide statute, the 9th
Circuit Court of Appeal distinguished its ruling from its prior
holding in Deutsch v. Turner, the 2003 opinion that voided the
slave labor compensation statute. In Deutsch, the 9th Circuit
held that any state effort to create a private right of action
for "war related injuries" intruded upon the federal
government's "exclusive powers of matters related to war." The
court distinguished the Armenian Genocide insurance cases, on
the other hand, holding that these were private claims against
private insurance companies, and therefore were not matters
relating to war. Moreover, the post-World War I agreements
created a commission to settle claims of "American citizens"
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against "the German government or German nationals." It did not
cover claims by Armenian citizens of the Ottoman Empire, or
their heirs, against private insurance companies. In addition,
the court noted that the Legislature defined the period of the
Armenian Genocide as extending from 1915 to 1923, revealing the
Legislature's understanding that the genocide continued after
the end of the War by five years, and even after the relevant
post-war agreement by one year, and therefore claims arising as
a result of the genocide could not have been included in
agreements ending the war.
Although the court did not expressly distinguish the latest case
from Von Saher - the 9th Circuit ruling invalidated CCP 354.3 on
recovery of Holocaust art - it did note that the Nazi art case
also involved "field preemption" and a "matter of war," whereas
the Armenian insurance actions were private claims in an area of
traditional state concern.
While one can distinguish rulings voiding the slave labor and
Nazi art theft statutes, the Court's reversal of the Armenian
Genocide insurance claims might, at first glance, suggest that
CCP 354.5, relating to Holocaust insurance claims, could be also
salvaged - since it too deals with "private" insurance claims
and not strictly speaking "matters of war." However, in
Steinberg v. Int'l Comm. on Holocaust Era Insurance Claims
(2005), the 9th circuit found an express federal policy in a
United States executive agreement with several European nations
to the effect that all insurance- related claims should be
processed through the International Commission on Holocaust Era
Insurance Claims (ICHEIC). So even though the Nazi era
insurance claims could also be seen as private matters and not
"matters of war," the United States has nonetheless entered into
an international agreement dealing expressly with Nazi-era
insurance claims. There was no such international agreement
that the United States signed pertaining to the Armenian
Genocide insurance claims.
With or without the contrary court rulings, the original statute
would have expired by its own terms on December 31, 2010.
However, it is possible that some claimants who intended to file
an action before 2010, but who had still not done so by the time
of the 2009 ruling striking down the statute, abandoned those
actions after the first ruling. When the Court reversed itself
on December 10, 2010, those claimants would have had only three
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weeks, assuming they were even aware of the ruling, to revive
their abandoned causes of actions. Because many claimants may
have abandoned their claims in reliance on the first ruling, it
seems fair to give those persons additional time to re-file
those claims.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0000142