By Donna Gordon Blankinship, Editor, JTNews
A recent ruling by the 9th Circuit Court of Appeals in San Francisco concerning California’s 1999 Holocaust Victim Insurance Relief Act gives both renewed hope and continued concern to advocates and government officials in Washington state, which has a similar law.
According to the Jewish Bulletin of Northern California, in a Feb. 7 ruling, the 9th Circuit Court of Appeals in San Francisco found that a U.S. District Court judge erred in his interpretation of the California law last June, when he issued a temporary injunction against the HVIRA, which requires insurance companies to submit lists of their European policyholders from 1920 to 1945.
U.S. District Judge William Shubb in Sacramento had ruled that the law potentially violated the “commerce clause” of the Constitution and the U.S. government’s foreign affairs powers, writing that the Holocaust relief act “is meddling in foreign commerce completely outside its borders.”
However, a three-judge panel at the 9th Circuit Court disagreed, ruling that California was not creating its own foreign policy or regulating interstate commerce.
The 13-page decision written by Judge Susan P. Graber maintains that the relief act does not “regulate” insurance companies but merely “requires California companies only to provide information about their Holocaust-era insurance policies that they (or any of their affiliates) issued.”
Additionally, the 9th Circuit Court’s ruling cited the U.S. Holocaust Assets Commission Act of 1998, passed by the U.S. Congress. The act called for a federal commission to “take note of the work” of state insurance commissioners “with regard to Holocaust-era insurance issues.”
The 9th Circuit Court found that this statement may be an “encouragement of state statutes like HVIRA.” Or, at the very least, it shows “Congress was aware” that state insurance departments were “conducting research into the activities of Holocaust-era insurers.”
Yet, in a setback for the California Department of Insurance and Holocaust survivor advocacy groups, the 9th Circuit Court did not lift the temporary injunction.
Washington’s new state insurance commissioner, Mike Kreidler, said last week that state officials are keeping a close eye on the California case because their state law is so similar to the Washington law enacted in 1999.
The law created a Holocaust Survivor Assistance Office to assist survivors and their families in making claims against insurance companies; created a Holocaust Insurance Company Registry containing records relating to insurance policies, families and other pertinent information about Washington state survivors; and waived the statute of limitations for insurance policies issued to Holocaust survivors and victims and enabled Holocaust survivors/victims to sue insurance companies for failure to address those claims.
Kreidler said any move by the state of Washington to sue insurance companies that wrote policies during the Holocaust and now do business in Washington would have to wait at least until after the California case is completely settled. That could take at least a few more months and potentially longer, according to officials from both California and Washington.
“It’s an issue I care deeply and passionately about,” Kreidler said. “Holding the companies accountable…is still something I’ll work hard at achieving.”
He said he wouldn’t hesitate for a moment if he thought his office could enforce the section of the 1999 state statute calling for insurance companies to release the names of Holocaust-era policyholders. But he believes the lawsuit over the California law, which centers on a similar pursuit of names, will have to be resolved before Washington takes a chance of ending up in an expensive court battle over this issue.
In the meantime, Kreidler, who was sworn in on Jan. 10 as Washington’s ninth insurance commissioner, says the state will continue its efforts on several other fronts. Kreidler has over 25 years’ experience in public service, including 16 years in the state Legislature, and a term in Congress. He worked for 20 years for Group Health Cooperative as an optometrist.
One effort identified by Kreidler would be an examination of the insurance companies doing business in the state to make sure their potential liability because of Holocaust-era claims does not put them in financial jeopardy, which could make it difficult for them to do business in this state in a responsible manner. Kreidler also said he would like to publicize the names of Washington insurance companies that have ties to companies that sold policies in Europe during the Holocaust. “We’re going to work to make sure [the list of insurance companies] is as detailed as we can make it,” he added. This information would be shared with the public and with insurance brokers, who sell insurance policies to the public.
Kreidler said he would know by April if his office will have enough money to keep the Holocaust Survivor Assistance Office open. Insurance companies were assessed a fee to pay to operate the office, which helps survivors and their families pursue Holocaust-era claims, but about a quarter of the expended funding has not been collected. The fees pay the salaries of staff members Marvin Stern and Danny Kadden and other expenses necessary to their work. Kreidler said last week that it was possible he would have to spread the work of the Holocaust Survivor Assistance Office to other members of his staff if he was unable to find the funding to pay two staff members dedicated to the work. He said states like Pennsylvania, with much larger Jewish populations, do not have people dedicated to do this work. “If we’re lucky, we’ll continue with two people,” he said. “What we’re going to probably end up doing is not end up using dedicated staff.”
Kreidler commended his predecessor, former Insurance Commissioner Deborah Senn, for doing a “very good job of getting claims filed. Now we want to take it the next step in getting claims settled and continue to work to get the names of policyholders.”
Only a few state claims have been settled since the work began in earnest several years ago. “These people are getting older and dying and they deserve justice. We’re going to work hard to see that they get it,” Kreidler said.
Stephen Adler, a member of the board of the Washington State Holocaust Education Resource Center, said Wednesday he a got a good impression of Kreidler at a meeting with Jewish community members about two weeks ago. Adler, who escaped from Germany in 1939 as a child on a Kindertransport to England, said he was encouraged both by fact that Kreidler asked to meet with interested members of the community and because he participated in a meeting of the International Commission of Holocaust-Era Insurance Claims during his first few weeks in office.
“He said he was committed to the notion that there has to be justice done in relationship to the pending insurance claims. And again, he didn’t have to say it, but he felt he ought to,” Adler said. “What we all need to try to figure out now is: How much does he mean it? What will he do to demonstrate his level of commitment?”
Another participant in the community meeting with Kreidler, Lucy Pruzan, said she found Kreidler committed to seeing survivors collect on their insurance claims.
“He really feels that the folks who are owed funds from these insurance companies need to have someone help them see justice is done,” said Pruzan, who is the past president of the Jewish Federation of Greater Seattle.
“We weren’t sure how he was going to weigh in on this issue because it’s not at the forefront on most people’s radar screens. He seems to understand the issue very well and is supportive,” she said. “I think it was very good we met with him and we’ll see what happens.”
Kreidler said he didn’t think it would make any difference on this issue that he is not Jewish like his predecessor. “Some people have suggested to me from the Jewish community that it might actually be better that I’m not Jewish,” he said.
California state insurance department lawyers and survivor advocates told the Jewish Bulletin of Northern California that the insurance companies would probably choose the most time-consuming path to resolve the court case.
“I don’t think they want to give up this information [policyholder lists], and they’re doing everything they can and spending as much money as they need in order to shield themselves from having to provide the information,” said Leslie Tick, the Department of Insurance’s senior staff counsel.
“Their whole strategy in ICHEIC [the International Commission on Holocaust-Era Insurance Claims] and in litigation has been to delay,” Tick added. “That’s too bad, because the longer it takes to hear this, the longer it takes to get the lists out and help people get claims.”
In the case of Holocaust survivors, time is a luxury they don’t have.
Holocaust survivors have one more year to file claims for unpaid Holocaust-era insurance policies. For more information, contact the Holocaust Survivors Assistance Office toll free at 1-888-606-9622.