Courthouse in Newburgh, New York. Image courtesy of the New York Public Library Collection.
Most courts hold that the filed rate doctrine is an affirmative defense. Other courts hold a minority view that the filed rate doctrine is inherent in subject-matter jurisdiction. The confusion is understandable. Judges in cases subject to the doctrine must decline to exercise jurisdiction in deference to regulators empowered to review and decide rate filings.
Either way, whether viewed as an affirmative defense or as an attack on subject-matter jurisdiction, the judges all agree that the party raising the filed rate doctrine has the burden of proving it.
This means evidence of course. In Florida, for example, in cases involving one of the larger force-placed insurance carriers, American Security Insurance Company ("ASIC"), the Florida Office of Insurance Regulation, i.e., Insurance Commissioner's Office, actually denied ASIC's rate request in a rate filing ASIC filed in support in 2013. I filed comments in the rate filing proceeding in which which the O.I.R. denied ASIC's request for another rate increase.
To be continued.
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). All rights reserved.
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