Suspension of Forum Selection: Washington’s Ban on Forum Selection in Insurance Contracts | JD Supra

Starting Carnival Cruise Lines, Inc. Shute, 499 US 585 (1991), forum selection decisions often enjoy strong state and federal enforcement. For this reason, in many jurisdictions (if not most), contracting parties have the right and ability to modify their contracts as they see fit, including including a forum selection clause that creates a specific forum for resolving disputes. Insurers in Washington State, however, should be aware of Washington law, and similar laws, which eliminate the ability of the parties to create a forum for disputes related to coverage under any policy issued in Washington (or issued in Washington).

Washington enacted RCW 48.18.200 established a legal framework under which insurers may not write such statements. insurance contractors. RCW 48.18.200 provides (with appropriate emphasis added):

(1) Except as provided by subsection (3) of this section, no contract of insurance has been issued or issued for delivery in this state and affect studies that are, are, or are to be conducted in this government, will have any culture, policy, or agreement

(a) require that it be interpreted according to the laws of this country or any other country except if it is necessary to meet the requirements of the motor vehicle finance laws of the country or another country; or

(b) usurping the courts of this country to have jurisdiction over insurance; or

(c) limiting the right of action against the insured for a period of not more than one year from the time of the cause of action in respect of all insurances except property and marine and transport insurances. In contracts of property insurance, or marine and transportation insurance, such limitation shall not be less than one year from the date of the loss.

(2) Any such condition, provision, or agreement in violation of this clause shall be void, but such waiver shall not affect the validity of the terms of this agreement.

(3) For purposes of out-of-network payment disputes between a health care provider and a health care provider provided under the provisions of chapter 48.49 RCW, the subdivisions of chapter 48.49 RCW apply.

By their plain language, 48.18.200(1)(a) and 48.18.200(1)(b) prohibit the enforcement of forum selection and choice of law judgments in insurance contracts issued or issued in Washington. The Supreme Court of the state of Washington and the United States District Court, Western District of Washington, have interpreted the statute strictly, saying that it preempts any language in the Washington insurance policy that purports to add such language (including conflicting clauses). See Dep’t of Transp. v. James River Ins. Co.176 Wash.2d 390, 399 (Wash. 2013) (holding that the purpose of the law behind RCW 48.18.200 was to “protect the right of policyholders to bring an original ‘anti-insurance’ claim in the courts of this state); Nat’l Frozen Foods Corp. v. Berkley Assurance Co.2017 WL 3781706 at *3 (WD Wa. Dec. 16, 2019) (applying Washington law) (“It is unlikely that the Washington Supreme Court would agree that the forum selection clause in this. [insurance] the contract is void. A forum selection decision is more restrictive of judicial review than a formal decision rendered in James River because the decision to choose a forum only extends the limits of the jurisdiction of the Washington courts (as they would) – it removes the case from the courts of this state.”). In particular, the Supreme Court of Washington has reinterpreted RCW 48.18.200 to prohibit conflicting clauses in insurance contracts. See James River.176 Wash.2d at 400 (“Therefore, we hold that unless the legislature provides otherwise, RCW 48.18.200 prohibits contracts against contracts of insurance.”)

For these reasons, insurers issuing policies in the state of Washington should be aware of the system established by this law that restricts the right and ability of the parties under the insurance contract to choose a particular court of disputes. As discussed above, a Washington court can block this action and reject any attempt by the insurer (or the policyholder) to enforce it.