Citizens of Humanity v. Applied Underwriters , 299 Neb. 545 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
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CITIZENS OF HUMANITY v. APPLIED UNDERWRITERS
Cite as 299 Neb. 545
Citizens ofHumanity, LLC, a Delaware limited
liability company, and CM Laundry, LLC,
a California limited liability company,
appellants, v. A pplied Underwriters
Captive R isk Assurance Company,
Inc., a British Virgin Islands
company, appellee.
___ N.W.2d ___
Filed April 6, 2018. No. S-17-178.
1. Arbitration and Award. Arbitrability presents a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
3. Final Orders: Arbitration and Award. A court order staying an action
pending arbitration is a final, appealable order under Neb. Rev. Stat.
§ 25-1902 (Reissue 2016), because it affects a substantial right and is
made in a special proceeding.
4. Federal Acts: Contracts: Arbitration and Award: Intent. The pur-
pose of the Federal Arbitration Act is to make arbitration agreements as
enforceable as other contracts, but not more so.
5. Federal Acts: Insurance: Contracts: Arbitration and Award. The
Uniform Arbitration Act, at Neb. Rev. Stat. § 25-2602.01(f)(4) (Reissue
2016), limits the enforceability of mandatory arbitration in an agree-
ment concerning or relating to an insurance policy of future policy-
holder claims.
6. Federal Acts: Insurance: States. Under the McCarran-Ferguson Act,
state law regulating the business of insurance reverse preempts federal
laws that do not specifically govern insurance.
7. ____: ____: ____. Under the McCarran-Ferguson Act, courts consider
three elements for determining when a state law controls over a federal
statute: (1) The federal statute does not specifically relate to the business
of insurance; (2) the state law was enacted for regulating the business of
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insurance; and (3) the federal statute, if applied, operates to invalidate,
impair, or supersede the state law.
8. Federal Acts: Insurance: Contracts: Arbitration and Award.
The Federal Arbitration Act does not preempt Neb. Rev. Stat.
§ 25-2602.01(f)(4) (Reissue 2016).
9. Courts: Statutes: Intent. When two statutes are capable of coexistence,
it is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.
10. Courts: Statutes. Courts will harmonize overlapping statutes so long as
each reaches some distinct cases.
11. Federal Acts: Contracts: Arbitration and Award. The Federal
Arbitration Act’s saving clause permits agreements to arbitrate to be
invalidated by generally applicable contract defenses.
12. Contracts: Public Policy. A promise or other term of an agreement is
unenforceable on grounds of public policy if legislation provides that it
is unenforceable or the interest in its enforcement is clearly outweighed
in the circumstances by a public policy against the enforcement of
such terms.
13. Courts: Contracts: Arbitration and Award. Unless the parties clearly
and unmistakably provide otherwise, the question of whether the parties
agreed to arbitrate is decided by the court, not the arbitrator.
14. ____: ____: ____. Disputes about arbitrability for a court to decide
include questions such as whether the parties are bound by a given arbi-
tration clause or whether an arbitration clause in a concededly binding
contract applies to a particular type of controversy.
15. Arbitration and Award. Parties may delegate arbitrability to the arbi-
trator, because it is up to the parties to determine whether a particular
matter is primarily for arbitrators or for courts to decide.
16. Federal Acts: Contracts: Arbitration and Award: Words and
Phrases. A delegation clause is an agreement to arbitrate a threshold
issue and is simply an additional, severable, antecedent arbitration
agreement the party seeking arbitration asks the court to enforce, and the
Federal Arbitration Act operates on this additional arbitration agreement
just as it does on any other.
17. Federal Acts: Contracts: Arbitration and Award. A delegation agree-
ment, like any other arbitration agreement, is valid under the Federal
Arbitration Act except by application of 9 U.S.C. § 2 (2012), which
invalidates such agreements upon such grounds as exist at law or in
equity for the revocation of any contract.
18. Federal Acts: Arbitration and Award: Presumptions. Under the
Federal Arbitration Act, there is a presumption of arbitrability, and any
doubts are resolved in favor of arbitration.
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CITIZENS OF HUMANITY v. APPLIED UNDERWRITERS
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19. Federal Acts: Contracts: Arbitration and Award. Under the Federal
Arbitration Act, if a delegation provision is valid, the validity of the
remainder of the arbitration contract is for the arbitrator to decide.
20. ____: ____: ____. Two types of validity challenges under the Federal
Arbitration Act are (1) a challenge specifically to the validity of the
agreement to arbitrate and (2) a challenge to the contract as a whole,
either on a ground that directly affects the entire agreement or on the
ground that the illegality of one of the contract’s provisions renders the
whole contract invalid. Only the first type of challenge is relevant to a
court’s determination of a challenged arbitration agreement. A party’s
challenge to another provision of the contract, or to the contract as a
whole, does not prevent a court from enforcing a specific agreement
to arbitrate.
21. Federal Acts: Contracts: Arbitration and Award: Courts. Under
the Federal Arbitration Act, a challenge to a delegation provision must
be directed specifically to the delegation before the court will assume
authority over the matter.
22. Contracts. A court must consider a contract as a whole and, if possible,
give effect to every part of the contract.
23. Insurance: Contracts: Arbitration and Award. A delegation of arbi-
trability of future policyholder claims in an agreement concerning
or relating to an insurance policy is invalid under Neb. Rev. Stat.
§ 25-2602.01(f)(4) (Reissue 2016).
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Reversed and remanded for further
proceedings.
Jonathan J. Papik and Andre R. Barry, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellants.
David A. Blagg and Michael K. Huffer, of Cassem, Tierney,
Adams, Gotch & Douglas, and Spencer Y. Kook, of Hinshaw
& Culbertson, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Appellants, Citizens of Humanity, LLC, and CM Laundry,
LLC (collectively Citizens), filed a declaratory judgment action
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in the district court for Douglas County in connection with a
dispute in which appellee, Applied Underwriters Captive Risk
Assurance Company, Inc. (AUCRA), claimed it was owed
money from Citizens. Citizens appeals from an order of the
district court for Douglas County, in which the court granted
AUCRA’s motion to stay the court case pending arbitration,
including arbitration of the issue of arbitrability. Because we
conclude that the district court’s ruling enforcing delegation of
the issue of arbitrability was error, we reverse this ruling and
remand the cause for further proceedings.
II. STATEMENT OF FACTS
Citizens of Humanity is a blue jean manufacturing company
organized in Delaware with its principal place of business in
California. Its subsidiary, CM Laundry, is organized and has
its principal place of business in California, and its business is
laundering the blue jeans manufactured by its parent company
before they are sold to customers. AUCRA is organized in the
British Virgin Islands and has its principal place of business in
Douglas County, Nebraska.
1. EquityComp and the R einsurance
Participation Agreement
Citizens purchased a workers’ compensation insurance pack-
age known as the EquityComp program. The EquityComp
program is a workers’ compensation program marketed by
AUCRA and offered through California Insurance Company.
The program is sometimes referred to by AUCRA as a “profit-
sharing plan.” Under this program, Citizens purchased a work-
ers’ compensation policy identified as a “guaranteed cost”
policy from California Insurance Company and Continental
National Indemnity, which are affiliated with AUCRA but
are not parties to this appeal. Citizens’ “Request to Bind
Coverages & Services” for the EquityComp workers’ com-
pensation policies stated that issuance of the insurance cover-
age was conditioned on Citizens’ executing a “Reinsurance
Participation Agreement” (RPA). Citizens executed the related
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RPA with AUCRA on August 8, 2012. The RPA is the subject
of this appeal.
By Citizens’ participation in the EquityComp program, and
by the terms of the RPA, portions of Citizens’ premiums and
losses billed by the affiliated workers’ compensation insur-
ers were to be subsequently ceded to AUCRA. AUCRA then
agreed to fund a segregated account or “cell” held by AUCRA.
The amount to be funded into the cell would be dependent
on a prospective formula set forth in the RPA that would take
into account claims filed against Citizens’ workers’ compensa-
tion policies. This was known as Citizens’ “loss experience.”
Citizens, through its segregated cell account, effectively would
be partially self-insured, because it would then be responsible
for an amount equal to all of its actual losses under the work-
ers’ compensation policies, up to a limit. Excess losses, beyond
that limit, would be paid by the workers’ compensation insur-
ance, but such experience would obligate the insured to fund
the cell in a greater amount.
The EquityComp proposal materials claimed that the “Profit
Sharing Plan is not a filed retrospective rating plan or dividend
plan.” However, the RPA required a 3-year minimum contrac-
tual commitment and amounts subsequently returned to the
insured or increases in premiums were computed based on past
loss experience.
Two types of workers’ compensation policies—guaranteed
cost and retrospective rating plan—have been described in case
law, and we find the following description to be consistent with
treatise authority. See 5 Steven Plitt et al., Couch on Insurance
3d § 69:16 (2012). The opinion in Nat. Convention v. Applied
Underwriters Captive, 239 F. Supp. 3d 761, 769 (S.D.N.Y.
2017), states:
A [guaranteed cost] policy essentially fixes insurance pre-
miums at the outset, meaning that the actual cost of the
claims against the policy will not cause premiums to fluc-
tuate during the life of the policy. . . . By contrast, a [ret-
rospective rating plan] policy is loss sensitive, meaning
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that premiums can fluctuate during the life of the policy
depending on the actual cost of the claims . . . .
Retrospective pricing has long been recognized. See American
Ins. Co. v. C.S. Mc Crossan, Inc., 829 F.2d 702 (8th Cir. 1987)
(discussing retrospective pricing). For purposes of this suit, we
view the RPA as an agreement adding a feature of retrospective
pricing thereby impacting the underlying “guaranteed cost”
workers’ compensation policies. And for completeness, we
note that our characterization of the RPA is not critical to our
disposition, but, rather, as we discuss below, illustrates that the
RPA is “concerning or relating to an insurance policy” under
Neb. Rev. Stat. § 25-2602.01(f)(4) (Reissue 2016).
AUCRA has patented its “Reinsurance Participation Plan.”
See “Reinsurance Participation Plan,” U.S. Patent No. 7,908,157
B1 (issued Mar. 15, 2011). See, also, Nat. Convention v. Applied
Underwriters Captive, supra. The patent states as follows:
One of the challenges of introducing a fundamentally
new premium structure into the marketplace is that the
structure must be approved by the respective insurance
departments regulating the sale of insurance in the states
in which the insureds operate.
In the United States, each state has its own insurance
department and each insurance department must give its
approval to sell insurance with a given premium plan
in its respective jurisdiction. Getting approval can be
extremely time consuming and expensive, particularly
with novel approaches that a department hasn’t had expe-
rience with before. Also, many states require insurance
companies to only offer small sized and medium sized
companies a Guaranteed Cost plan, without the option of
a retrospective plan. In part, this is because of govern-
mental rules and laws that regulate the insurance industry.
Disclosed herein is a reinsurance based approach to pro-
viding non-linear retrospective premium plans to insureds
that may not have the option of such a plan directly.
U.S. Patent No. 7,908,157 B1, col. 6, lines 22-40.
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The patent further explains that the insured can “have a
retrospective rating plan because of the arrangement among
the insurance carrier . . . , the reinsurance company . . . , and
the insured even though, in fact, the insured has Guaranteed
Cost insurance coverage with the insurance carrier.” Id., col. 7,
lines 51-54. See, also, Nat. Convention v. Applied Underwriters
Captive, supra.
This patented arrangement has been scrutinized and found
noncompliant by several state insurance commissions. The
arrangement has been deemed in violation of state insurance
laws, generally for the reason that the RPA is considered
a collateral agreement that modifies the underlying com-
pliant guaranteed cost policy. Nat. Convention v. Applied
Underwriters Captive, supra (summarizing insurance com-
mission cease-and-desist orders filed in California, Vermont,
and Wisconsin).
2. Provisions in the RPA Pertaining
to the A rbitration Issue
The RPA includes an arbitration provision which provides,
in pertinent part:
13. Nothing in this section shall be deemed to amend or
alter the due date of any obligation under this Agreement.
Rather, this section is only intended to provide a mecha-
nism for resolving accounting disputes in good faith.
(A) It is the express intention of the parties to resolve
any disputes arising under this Agreement without resort
to litigation in order to protect the confidentiality of their
relationship and their respective businesses and affairs.
Any dispute or controversy that is not resolved infor-
mally pursuant to sub-paragraph (B) of Paragraph 13
arising out of or related to this Agreement shall be fully
determined in the British Virgin Islands under the provi-
sions of the American Arbitration Association.
(B) All disputes between the parties relating in any
way to (1) the execution and delivery, construction or
enforceability of this Agreement, (2) the management
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or operations of the Company, or (3) any other breach
or claimed breach of this Agreement or the transac-
tions contemplated herein shall be settled amicably by
good faith discussion among all of the parties hereto,
and, failing such amicable settlement, finally determined
exclusively by binding arbitration in accordance with the
procedures provided herein. The reference to this arbitra-
tion clause in any specific provision of this Agreement is
for emphasis only, and is not intended to limit the scope,
extent or intent of this arbitration clause, or to mean
that any other provision of this Agreement shall not be
fully subject to the terms of this arbitration clause. All
disputes arising with respect to any provision of this
Agreement shall be fully subject to the terms of this
arbitration clause.
The RPA also contains a choice-of-law clause providing for
Nebraska law, stating:
16. This Agreement shall be exclusively governed by
and construed in accordance with the laws of Nebraska
and any matter concerning this Agreement that is not
subject to the dispute resolution provisions of Paragraph
13 hereof shall be resolved exclusively by the courts of
Nebraska without reference to its conflict of laws.
3. Procedural History and
Present Dispute
A dispute over costs arose, and AUCRA claimed that Citizens
owed it $842,802.78. Citizens contended that its participation
in the RPA was premised on assurances of cost savings, but
Citizens instead incurred excessive costs under the RPA.
On December 12, 2014, AUCRA filed an arbitration demand
with the American Arbitration Association. Citizens filed a
counterclaim with the association, alleging that it could not be
compelled to arbitrate.
On February 9, 2015, Citizens filed a complaint against
AUCRA and other defendants in a trial court in Los Angeles,
California. In January 2016, the California trial court overruled
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a renewed motion by Citizens to stay the arbitration. In April,
Citizens dismissed AUCRA as a defendant in the California
action. After AUCRA was dismissed, the remaining defend­
ants filed a “renewed” motion to compel arbitration and
stay the California action. On July 14, the California trial
court overruled the remaining defendants’ motion to compel
arbitration. The California court determined that the RPA’s
arbitration clause was unenforceable under the controlling
Nebraska statute, § 25-2602.01(f)(4). On November 22, 2017,
the California Court of Appeal affirmed the California trial
court’s order refusing to compel arbitration. See Citizens
Humanity v. Applied Underwriters, 17 Cal. App. 5th 806, 226
Cal. Rptr. 3d 1 (2017).
In April 2016, 1 day after it had dismissed AUCRA from
the California action, Citizens filed the present action against
AUCRA in the district court for Douglas County. An amended
complaint was filed on July 25. In this action, Citizens asked
the district court to enjoin the arbitration which had been
commenced by AUCRA. Citizens alleged that it could not be
compelled to arbitrate for various reasons, including the fact
that § 25-2602.01(f)(4) prohibits mandatory arbitration provi-
sions in “any agreement concerning or relating to an insurance
policy other than a contract between insurance companies
including a reinsurance contract.” By virtue of is pleading and
arguments made to the district court, Citizens challenges the
enforceability of arbitration, including the delegation of arbi-
tribility to an arbitrator.
AUCRA filed a motion to dismiss this action or, in the alter-
native, to stay this action pending arbitration. After a hearing,
in an order filed January 19, 2017, the district court sustained
the motion to stay this action pending arbitration. In reaching
its conclusion, the court reasoned that because Citizens and
AUCRA were organized and had principal places of busi-
ness in different states and the RPA involved interstate com-
merce, the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 14
(2012), governed its analysis. The court determined that based
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on the “broad and sweeping language” of the RPA’s arbitra-
tion provision, the provision’s incorporation of the American
Arbitration Association rules, and Citizens lack of a direct
challenge to delegation of arbitrability, the parties had “clearly
and unmistakably delegated threshold issues of arbitrability to
an arbitrator.”
Having rejected Citizens’ arguments claiming that it was
not required to arbitrate, the court sustained AUCRA’s motion
to stay this action, thus delegating the issue of arbitrability to
the arbitrator.
This appeal followed.
III. ASSIGNMENTS OF ERROR
Citizens assigns error to the district court, for (1) determin-
ing that the FAA and not Nebraska state law governed the
enforceability of the RPA’s arbitration agreement, (2) find-
ing that delegation of arbitrability in the RPA was enforce-
able rather than finding that it was unenforceable under
§ 25-2602.01(f)(4), (3) failing to find that the arbitration
clause as a whole was unenforceable under § 25-2602.01(f)(4),
and (4) staying the case pending arbitration.
IV. STANDARD OF REVIEW
[1,2] Arbitrability presents a question of law. Speece v.
Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169
(2014). On a question of law, we reach a conclusion indepen-
dent of the court below. Id.
V. ANALYSIS
AUCRA contended that under its broad arbitration agree-
ment, the RPA requires all questions concerning construction
and enforceability of that agreement, including applicabil-
ity of § 25-2602.01(f)(4), to be decided by an arbitrator and
that the FAA alone governs the RPA’s arbitration provision
(notwithstanding the RPA’s general choice of Nebraska law
provision) and thus moved to stay arbitration under the FAA.
AUCRA therefore asserts that the district court correctly
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reasoned that under FAA jurisprudence, Citizens did not
adequately and specifically challenge the RPA arbitration pro-
visions and that therefore, the arbitration should proceed. See
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct.
2772, 177 L. Ed. 2d 403 (2010).
Citizens contended that because paragraph 16 of the RPA pro-
vides that the RPA “shall be exclusively governed” by Nebraska
law, the antiarbitration provision of § 25-2602.01(f)(4) renders
the arbitration provisions of the RPA, including arbitration
of arbitrability, unenforceable. Citizens reasons that because
this court has held that § 25-2602.01 regulates the business
of insurance and by virtue of the federal McCarran-Ferguson
Act, see Speece v. Allied Professionals Ins. Co., supra, the
court should determine the threshold question of arbitrability.
Citizens further asserts that because the arbitration provisions
in the RPA are invalid under § 25-2602.01(f)(4), the district
court erred when it granted AUCRA’s motion to stay the case
to permit arbitration.
Below, we examine the relevant statutory framework
forming the basis of the parties’ dispute and conclude that
§ 25-2602.01(f)(4) applies to this case and that the arbitration
provision delegating the issue of arbitrability to the arbitrator—
sometimes referred to as a “delegation clause”—in the RPA
is invalid. We explain why the gateway issue of arbitrability
should have been decided in the district court, and we reverse,
and remand for further proceedings.
1. Jurisdiction Is Proper
[3] As an initial matter, we note that a court order stay-
ing an action pending arbitration is a final, appealable order
under Neb. Rev. Stat. § 25-1902 (Reissue 2016), because it
affects a substantial right and is made in a special proceeding.
See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788
N.W.2d 538 (2010). See, also, Shasta Linen Supply v. Applied
Underwriters, 290 Neb. 640, 861 N.W.2d 425 (2015). In this
context, a stay has the same effect as a dismissal, because the
“parties cannot litigate their dispute in state courts.” Kremer
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v. Rural Community Ins. Co., 280 Neb. at 600, 788 N.W.2d
at 548. Therefore, this court has jurisdiction to consider this
appeal of the district court’s order granting AUCRA’s motion
to stay the case.
2. R elevant Statutes
We first identify the federal and state statutes relevant to
our analysis.
(a) The FAA
The FAA, at 9 U.S.C. § 2, provides, in pertinent part, that
“[a] written provision in . . . a contract evidencing a transac-
tion involving commerce to settle by arbitration a controversy
thereafter arising out of such contract . . . shall be valid, irre-
vocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any contract.” The
FAA was enacted in “response to judicial hostility to arbitra-
tion,” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 97, 132
S. Ct. 665, 181 L. Ed. 2d 586 (2012), and to ensure judicial
enforcement of privately made agreements to arbitrate. That is,
the FAA “‘declare[d] a national policy favoring arbitration.’”
Nitro-Lift Technologies, L. L. C. v. Howard, 568 U.S. 17, 20,
133 S. Ct. 500, 184 L. Ed. 2d 328 (2012) (quoting Southland
Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d
1 (1984)).
[4] As noted, § 2 of the FAA extends its jurisdiction over
arbitration agreements contained within “‘contract[s] evidenc-
ing a transaction involving commerce’” and governs whether
such an arbitration provision is enforceable. Aramark Uniform
& Career Apparel v. Hunan, Inc., 276 Neb. 700, 705, 757
N.W.2d 205, 209 (2008). The U.S. Supreme Court has given
this jurisdictional phrase a broad interpretation to give expan-
sive scope to the FAA. Aramark Uniform & Career Apparel
v. Hunan, Inc., supra. See, also, Kremer v. Rural Community
Ins. Co., supra. However, it has been observed that the purpose
of the FAA is “to make arbitration agreements as enforceable
as other contracts, but not more so.” Prima Paint v. Flood &
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Conklin, 388 U.S. 395, 404 n.12, 87 S. Ct. 1801, 18 L. Ed. 2d
1270 (1967). Thus, an arbitration agreement under the FAA
is enforced according to its terms “unless the FAA’s mandate
has been ‘overridden by a contrary congressional command.’”
CompuCredit Corp. v. Greenwood, 565 U.S. at 98 (quoting
Shearson/American Express Inc. v. McMahon, 482 U.S. 220,
107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987)).
(b) The McCarran-Ferguson Act
As we have explained in previous opinions of this court,
Congress passed the McCarran-Ferguson Act, 15 U.S.C.
§§ 1011 to 1015 (2012), to overturn a U.S. Supreme Court
decision under the Commerce Clause that threatened the con-
tinued supremacy of states to regulate “‘the activities of insur-
ance companies in dealing with their policyholders.’” Kremer
v. Rural Community Ins. Co., 280 Neb. at 604, 788 N.W.2d at
550 (quoting SEC v. National Securities, Inc., 393 U.S. 453,
89 S. Ct. 564, 21 L. Ed. 2d 668 (1969)). It has been stated
that the “McCarran-Ferguson Act . . . endows states with ple-
nary authority over the regulation of insurance and, in certain
instances, exempts state laws from FAA preemption.” Milmar
v. Applied Underwriters, 58 Misc. 3d 497, 501, 68 N.Y.S.3d
645, 648 (2017).
The McCarran-Ferguson Act sets out the statutory provision
relevant to the case before us: “No Act of Congress shall be
construed to invalidate, impair, or supersede any law enacted
by any State for the purpose of regulating the business of
insurance, or which imposes a fee or tax upon such business,
unless such Act specifically relates to the business of insurance
. . . .” 15 U.S.C. § 1012(b). By virtue of this provision, the
federal McCarran-Ferguson Act creates a narrow circumstance
under which federal law does not preempt state laws regulating
the business of insurance.
(c) § 25-2602.01
[5] Although state laws vary on whether or not agreements
to arbitrate future disputes under an insurance policy are
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enforceable, a provision in Nebraska’s Uniform Arbitration
Act, § 25-2602.01(f)(4), decidedly limits the enforceability
of mandatory arbitration of future policyholder claims. See
John M. Gradwohl, Arbitration: Interface of the Federal
Arbitration Act and Nebraska State Law, 43 Creighton L. Rev.
97 (2009).
In relevant part, § 25-2602.01 provides generally for the
enforcement of arbitration agreements and states:
(b) A provision in a written contract to submit to arbi-
tration any controversy thereafter arising between the
parties is valid, enforceable, and irrevocable, except upon
such grounds as exist at law or in equity for the revoca-
tion of any contract, if the provision is entered into vol-
untarily and willingly.
However, subsection (f)(4) of § 25-2602.01, excepts from
this provision “any agreement concerning or relating to an
insurance policy other than a contract between insurance com-
panies including a reinsurance contract.”
In other words, where applied, § 25-2602.01 provides that
agreements to arbitrate existing and future agreements are
valid and enforceable except in specified circumstances some-
times referred to as “antiarbitration provisions.” See Kremer
v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010). Agreements to arbitrate “concerning or relating to an
insurance policy” are one such circumstance where arbitra-
tion is not permitted. Such agreements would be invalid, and
contrary contract provisions agreed to by the parties do not
control over this statutory bar to enforcement of arbitration.
See § 25-2602.01(d).
3. Where They Interact, the McCarran-Ferguson Act
Generally Preserves § 25-2602.01(f)(4)
From Preemption by the FAA
The three statutory schemes just described interact in the
instant case and, on appeal, present the narrow issues of
whether the McCarran-Ferguson Act causes § 25-2602.01(f)(4)
to reverse preempt the FAA, thus rendering the delegation
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of arbitrability under the RPA invalid and whether the court
should have decided this threshold issue.
[6] As noted above, the FAA provides that written provi-
sions for arbitration are valid and enforceable and that the
FAA preempts inconsistent state laws that apply solely to the
enforceability of arbitration provisions. However, under the
McCarran-Ferguson Act, state law regulating the business of
insurance reverse preempts federal laws that do not specifically
govern insurance. See 1 Steven Plitt et al., Couch on Insurance
3d § 2:5 at 2-28 (2009) (discussing types of state laws “saved”
by McCarran-Ferguson Act, including state uniform arbitra-
tion acts).
[7] As we have previously stated, in the insurance area under
the McCarran-Ferguson Act, courts consider three elements for
determining when a state law controls over a federal statute:
(1) The federal statute does not specifically relate to the busi-
ness of insurance; (2) the state law was enacted for regulating
the business of insurance; and (3) the federal statute, if applied,
operates to invalidate, impair, or supersede the state law. See
Kremer v. Rural Community Ins. Co., supra.
[8] Applying these elements to § 25-2602.01(f)(4), we have
held in previous cases that (1) the FAA is a federal law which
does not specifically relate to the business of insurance; (2)
§ 25-2602.01(f)(4) is a state statute enacted to regulate the
business of insurance; and (3) the FAA, if applied, would
operate to invalidate, impair, or supersede § 25-2602.01(f)(4).
See, Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853
N.W.2d 169 (2014); Kremer v. Rural Community Ins. Co.,
supra. Based on these conclusions, and applying § 1012(b)
of the McCarran-Ferguson Act, we have concluded under the
facts of these previous cases that the FAA was reverse pre-
empted by § 25-2602.01(f)(4) but that due to the fact a sec-
ond federal law relating to insurance was at play in these
cases, the second federal law ultimately served to preempt
§ 25-2602.01(f)(4). See, Speece v. Allied Professionals Ins.
Co., supra; Kremer v. Rural Community Ins. Co., supra. Thus,
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unless another applicable federal insurance law directly pre-
empts § 25-2602.01(f)(4), agreements to arbitrate future con-
troversies in insurance policies are invalid under Nebraska law.
Kremer v. Rural Community Ins. Co., supra. See, also, Speece
v. Allied Professionals Ins. Co., supra. In the instant case, aside
from our consideration of the FAA and the McCarran-Ferguson
Act, no other federal law has been proposed which bears
directly on the RPA. Compare, Speece v. Allied Professionals
Ins. Co., supra (determining that second federal law, Liability
Risk Retention Act of 1986, which specifically related to busi-
ness of insurance, was not reverse preempted by Nebraska anti-
arbitration law, § 25-2602.01(f)(4), under McCarran-Ferguson
Act); Kremer v. Rural Community Ins. Co., supra (determining
that second federal law, Federal Crop Insurance Act, which
specifically related to business of insurance, was not reverse
preempted by Nebraska antiarbitration law, § 25-2602.01(f)(4),
under McCarran-Ferguson Act).
[9,10] AUCRA contends that there is an inherent conflict
between the FAA and the McCarran-Ferguson Act because the
latter implicates § 25-2602.01(f)(4). AUCRA asserts that the
FAA, which generally favors arbitration agreements, trumps
the other statutes. We believe there is no such conflict.
Instead, we note that “‘[w]hen two statutes are capable of
co-existence . . . it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard
each as effective.’” Vimar Seguros y Reaseguros, S. A. v. M/V
Sky Reefer, 515 U.S. 528, 533, 115 S. Ct. 2322, 132 L. Ed.
2d 462 (1995) (quoting Morton v. Mancari, 417 U.S. 535, 94
S. Ct. 2474, 41 L. Ed. 2d 290 (1974)). And courts will har-
monize overlapping statutes “so long as each reaches some
distinct cases.” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred
International, Inc., 534 U.S. 124, 144, 122 S. Ct. 593, 151 L.
Ed. 2d 508 (2001). Thus, when two federal statutes, each with
its own scope and purpose and imposing different require-
ments and protections, complement each other, “it would
show disregard for the congressional design to hold that
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Congress nonetheless intended one federal statute to preclude
the operation of the other.” POM Wonderful LLC v. Coca-
Cola Co., ___ U.S. ___, 134 S. Ct. 2228, 2238, 189 L. Ed.
2d 141 (2014). Below, we explain that the applicable statutes
are harmonious.
[11,12] As we read the statutes, there is no conflict between
the McCarran-Ferguson Act and the FAA, because, although
the FAA generally favors arbitration, through its savings
clause—“save upon such grounds as exist at law or in equity
for the revocation of any contract”—the FAA does not permit
illegal or invalid agreements to arbitrate to be enforced. See
9 U.S.C. § 2. It has been held that the FAA’s “saving clause
permits agreements to arbitrate to be invalidated by ‘gener-
ally applicable contract defenses.’” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 179 L. Ed. 2d
742 (2011) (quoting Doctor’s Associates, Inc. v. Casarotto, 517
U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996)). Illegality
and inconsistency with statutorily prescribed public policy
are widely recognized general contract defenses. Restatement
(Second) of Contracts § 178(1) at 6 (1981) (“[a] promise or
other term of an agreement is unenforceable on grounds of
public policy if legislation provides that it is unenforceable or
the interest in its enforcement is clearly outweighed in the cir-
cumstances by a public policy against the enforcement of such
terms”). The illegality of an arbitration “agreement concerning
or relating to an insurance policy” under § 25-2602.01(f)(4)
would constitute grounds warranting invalidation of that agree-
ment under § 2 of the FAA.
Were we considering a single agreement to arbitrate in an
“agreement concerning or relating to an insurance policy,” by
harmonizing the federal statutory framework and ultimately
applying § 25-2602.01(f)(4), the parties’ arbitration provision
would not be valid on this basis, and our analysis would end
here. However, in this case, the issues delegated to the arbitra-
tor in the parties’ agreement encompassed arbitrability itself
and we must determine whether the court may consider the
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parties’ assertions regarding the propriety of delegating arbitra-
bility to the arbitrator.
4. Threshold Issue of A rbitrability Is Question
for the Court, Not A rbitrator, When Party
Specifically Challenges Validity
of Delegation Agreement
AUCRA contends that the parties clearly and unmistakably
agreed to arbitrate threshold issues, including arbitrability,
and argues that whether § 25-2602.01 applies to invalidate
any feature of the parties’ arbitration clause is a question of
enforceability of the arbitration agreement, which the par-
ties reserved for the arbitrator. AUCRA further asserts that
when considering Citizens’ challenge, we should presume the
validity of the parties’ broad arbitration agreement, including
the broad delegation of arbitrability contained in the RPA.
AUCRA relies primarily on a U.S. Supreme Court decision
applying the FAA to a delegation provision and which con-
cluded under the facts therein to leave “any challenge to the
validity of the Agreement as a whole for the arbitrator.” Rent-
A-Center, West, Inc. v. Jackson, 561 U.S. 63, 72, 130 S. Ct.
2772, 177 L. Ed. 2d 403 (2010).
(a) Delegation of Arbitrability
[13,14] It has been held that unless the parties clearly and
unmistakably provide otherwise, the question of whether the
parties agreed to arbitrate is decided by the court, not the arbi-
trator. AT&T Technologies v. Communications Workers, 475
U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). Disputes
about arbitrability for a court to decide include questions
such as “‘whether the parties are bound by a given arbitration
clause’” or “‘whether an arbitration clause in a concededly
binding contract applies to a particular type of controversy.’”
BG Group, PLC v. Republic of Argentina, ___ U.S. ___, 134 S.
Ct. 1198, 1206, 188 L. Ed. 2d 220 (2014) (quoting Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588, 154
L. Ed. 2d 491 (2002)). Disputes over “formation of the parties’
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arbitration agreement” and “its enforceability or applicabil-
ity to the dispute” at issue are “matters . . . ‘the court’ must
resolve.” Granite Rock Co. v. Teamsters, 561 U.S. 287, 299-
300, 130 S. Ct. 2847, 177 L. Ed. 2d 567 (2010).
[15-19] Parties, however, may delegate arbitrability to the
arbitrator, because “it is up to the parties to determine whether
a particular matter is primarily for arbitrators or for courts to
decide.” BG Group, PLC v. Republic of Argentina, 134 S. Ct.
at 1206. A contractual provision that delegates to the arbitrator
all questions regarding the scope or enforceability of an arbi-
tration provision is referred to as a “delegation clause.” See,
e.g., Rent-A-Center, West, Inc. v. Jackson, supra. A delegation
clause is an agreement to arbitrate a threshold issue and is sim-
ply an additional, severable, antecedent arbitration agreement
the party seeking arbitration asks the court to enforce, and the
FAA operates on this additional arbitration agreement just as
it does on any other. Id. The additional delegation agreement,
like any other arbitration agreement, is valid under the FAA
except by application of § 2 of the FAA, which invalidates
such agreements “‘upon such grounds as exist at law or in
equity for the revocation of any contract.’” Rent-A-Center,
West, Inc. v. Jackson, 561 U.S. at 70 (quoting 9 U.S.C. § 2).
Under the FAA, there is a presumption of arbitrability, and any
doubts are resolved in favor of arbitration. AT&T Technologies
v. Communications Workers, supra. Under the FAA, if the del-
egation provision is valid, the validity of the remainder of the
arbitration contract is for the arbitrator to decide. See Nitro-Lift
Technologies, L. L. C. v. Howard, 568 U.S. 17, 133 S. Ct. 500,
184 L. Ed. 2d 328 (2012).
(b) Challenging a Delegation
of Arbitrability
A presumption that agreements to arbitrate threshold issues
are valid “does not mean that they are unassailable.” Rent-
A-Center, West, Inc. v. Jackson, 561 U.S. at 71. “If a party
challenges the validity under § 2 [of the FAA] of the precise
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agreement to arbitrate at issue, the federal court must consider
the challenge before ordering compliance with the agreement
under § 4.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S.
at 71. See, also, Nitro-Lift Technologies, L. L. C. v. Howard,
supra. Arbitration is purely a matter of contract. Cornhusker
Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 637
N.W.2d 876 (2002). Delegation agreements, like other agree-
ments to arbitrate, are not “immunize[d] . . . from judicial
challenge,” because to do so would be to “elevate it over other
forms of contract.” Prima Paint v. Flood & Conklin, 388 U.S.
395, 404 n.12, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). And,
as we have indicated above, “[a]s the ‘saving clause’ in § 2 [of
the FAA] indicates, the purpose of Congress . . . was to make
arbitration agreements as enforceable as other contracts, but
not more so.” Prima Paint v. Flood & Conklin, 388 U.S. at
404 n.12.
[20] Two types of validity challenges under § 2 have been
identified. They are (1) a “‘challenge[] specifically [to] the
validity of the agreement to arbitrate’” and (2) a challenge
to “‘the contract as a whole, either on a ground that directly
affects the entire agreement (e.g., the agreement was fraudu-
lently induced), or on the ground that the illegality of one of
the contract’s provisions renders the whole contract invalid.’”
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70, 130 S.
Ct. 2772, 177 L. Ed. 2d 403 (2010) (quoting Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204,
163 L. Ed. 2d 1038 (2006)). According to the U.S. Supreme
Court, only the first type of challenge is relevant to a court’s
determination of a challenged arbitration agreement. See Rent-
A-Center, West, Inc. v. Jackson, supra. A party’s challenge to
another provision of the contract, or to the contract as a whole,
does not prevent a court from enforcing a specific agreement
to arbitrate. Id.
In Rent-A-Center, West, Inc. v. Jackson, 561 U.S. at 71-72,
the U.S. Supreme Court examined a delegation clause similar
to that at issue in this case, and stated:
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Here, the “written provision . . . to settle by arbitration
a controversy,” 9 U.S.C. § 2, that [the employer] asks
us to enforce is the delegation provision—the provision
that gave the arbitrator “exclusive authority to resolve
any dispute relating to the . . . enforceability . . . of this
Agreement,” . . . Section 2 operates on the specific “writ-
ten provision” to “settle by arbitration a controversy” that
the party seeks to enforce. Accordingly, unless [the objec-
tor] challenged the delegation provision specifically, we
must treat it as valid under § 2, and must enforce it under
§§ 3 and 4, leaving any challenge to the validity of the
Agreement as a whole for the arbitrator.
[21] In Rent-A-Center, West, Inc. v. Jackson, supra, the
Court determined that under the FAA, a challenge to a del-
egation provision must be directed specifically to the delega-
tion before the court will assume authority over the matter.
In examining the objector’s challenge, the Court determined
that he had raised his challenge to the delegation provision
too late in appellate litigation and that thus, the Court would
not consider it in light of clear contract language delegating
arbitrability. Id. In the instant case, the district court grounded
its decision on Rent-A-Center, West, Inc. and determined, inter
alia, that Citizens’ challenge was directed to the entire arbitra-
tion agreement and that due to a lack of specificity, the resolu-
tion of the threshold issue of arbitrability was to be arbitrated
before the arbitrator.
(c) National Litigation of Delegation
We are aware of cases around the country challenging the
delegation feature of the RPA, inter alia, on the grounds of state
antiarbitration insurance laws similar to § 25-2602.01(f)(4).
See, Minnieland Private Day Sc. v. Applied Underwriters, 867
F.3d 449 (4th Cir. 2017), cert. denied ___ U.S. ___, 138 S.
Ct. 926, 200 L. Ed. 2d 203 (2018); South Jersey Sanitation v.
Applied Underwriters, 840 F.3d 138 (3d Cir. 2016); Citizens
Humanity v. Applied Underwriters, 17 Cal. App. 5th 806, 226
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Cal. Rptr. 3d 1 (2017); Milmar v. Applied Underwriters, 58
Misc. 3d 497, 68 N.Y.S.3d 645 (2017); Milan Exp. Co., Inc.
v. Applied Underwriters Captive Risk Assur. Co., Inc., 590
Fed. Appx. 482 (6th Cir. 2014); Jade Apparel, Inc. v. United
Assurance, Inc., No. A-2001-14T1, 2016 WL 5939470 (N.J.
Super. Oct. 13, 2016) (unpublished opinion); Mountain Valley
Property, Inc. v. Applied Risk Services, Inc., No. 1:15-CV-187-
DBH, 2016 WL 755614 (D. Me. Feb. 25, 2016) (unpublished
order); Randazzo Enterprises, Inc. v. Applied Underwriters
Captive Risk Assurance Company, Inc., No. 5:14-CV-02374-
EJD, 2014 WL 6997961 (N.D. Cal. Dec. 11, 2014) (unpub-
lished order). A circuit split has arisen between the Third
and Sixth Circuits and the Fourth Circuit in which the Third
and Sixth Circuits have ordered arbitration and the Fourth
Circuit has allowed the court to consider a challenge to the
RPA’s delegation clause. See, Minnieland Private Day Sc.
v. Applied Underwriters, supra; South Jersey Sanitation v.
Applied Underwriters, supra; Milan Exp. Co., Inc. v. Applied
Underwriters Captive Risk Assur. Co., Inc., supra.
Relying primarily on Rent-A-Center, West, Inc. v. Jackson,
561 U.S. 63, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010), as
did the district court in this case, the Third and Sixth Circuits
concluded that when a challenge could apply equally to the
arbitration agreement as a whole and the delegation provision,
the challenge is not specific to the delegation provision and
the delegation provision must be enforced. See, South Jersey
Sanitation v. Applied Underwriters, supra; Milan Exp. Co., Inc.
v. Applied Underwriters Captive Risk Assur. Co., Inc., supra.
Based on the reasoning discussed below, and contrary to the
Third and Sixth Circuits, we favor the approach taken by the
Fourth Circuit, because it did not erroneously conflate a chal-
lenge to the validity of the RPA’s delegation clause and the
nature of the inquiry necessary to resolve that challenge. See
Minnieland Private Day Sc. v. Applied Underwriters, supra.
See, also, Citizens Humanity v. Applied Underwriters, supra;
Milmar v. Applied Underwriters, supra.
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5. Citizens Specifically Challenges the Validity
of the Agreements to A rbitrate, I ncluding
the A rbitration P rovision Delegating
A rbitrability Issues, Distinguishing
This Case From R ent-A-Center,
West, Inc. v. Jackson
AUCRA contends that this action for declaratory judgment
is based in substantive law and is a challenge to the entire
agreement to arbitrate. Given the record, we reject this con-
tention. Instead, we read Citizens’ challenge in its amended
complaint and in oral arguments at the district court to be a
sufficiently specific challenge to the validity of the delegation
clause under Rent-A-Center, West, Inc. v. Jackson, supra, and
a challenge which should have been considered by the dis-
trict court.
As noted above, in Rent-A-Center, West, Inc. v. Jackson,
561 U.S. at 73, an employee challenged “‘the entire agree-
ment’” as unconscionable and did not raise a more specific
challenge to the delegation provision until later on appeal.
(Emphasis in original.) In contrast, Citizens’ amended com-
plaint addressed the RPA’s arbitration provisions in addition
to the underlying RPA. Paragraph 32 alleges: “[AUCRA]
cannot compel [Citizens] to arbitrate because the RPA is
governed by Nebraska law and under Nebraska law, specifi-
cally Neb. Rev. Stat. § 25-2602.01(f)(4), mandatory arbitration
provisions . . . are . . . unenforceable.” In its prayer for relief,
Citizens requested the court to “declare that there is no valid
and enforceable agreement to arbitrate the parties’ dispute.”
The parties’ dispute, according to the amended complaint,
included whether Citizens could be compelled to arbitrate.
At the hearing on AUCRA’s motion to stay pending arbitra-
tion, Citizens made clear at the trial level that its challenge
to arbitration included the delegation of arbitrability. Contrary
to the type of challenge made in Rent-A-Center, West, Inc.
v. Jackson, supra, here, Citizens specifically challenges the
validity of the arbitration clauses, including the arbitration
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provision which delegates arbitrability to the arbitrator, based
on § 25-2602.01(f)(4).
[22] As part of resolving Citizens’ challenge, we must inquire
whether the RPA’s delegation clause could be enforced under
Nebraska law. However, this additional inquiry necessary to
address Citizens’ challenge does not make it a challenge to the
entire agreement. A court must consider a contract as a whole
and, if possible, give effect to every part of the contract. Brozek
v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). At paragraph
16 of the RPA, the parties chose to apply Nebraska law, includ-
ing Nebraska’s Uniform Arbitration Act and necessarily the
antiarbitration provision in § 25-2602.01(f)(4). We must apply
the Nebraska choice-of-law provision to the challenge to the
delegation clause in order to determine whether the delega-
tion clause could be enforced. See, also, Citizens Humanity
v. Applied Underwriters, 17 Cal. App. 5th 806, 226 Cal. Rptr.
3d 1 (2017). Compare Pinela v. Neiman Marcus Group, Inc.,
238 Cal. App. 4th 227, 190 Cal. Rptr. 3d 159 (2015). In this
regard, we note that an arbitration agreement contrary to policy
and unenforceable under statute is just as unenforceable as
any other illegal contract that is contrary to public policy. See
Prima Paint v. Flood & Conklin, 388 U.S. 395, 87 S. Ct. 1801,
18 L. Ed. 2d 1270 (1967). The unenforceability of a contract
which is contrary to public policy is a “generally applicable”
doctrine, not one specifically applied to disfavor arbitration.
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341, 131 S.
Ct. 1740, 179 L. Ed. 2d 742 (2011).
Even though resolving Citizens’ challenge may require this
court to ask whether the RPA includes an “agreement concern-
ing or relating to an insurance policy” under § 25-2602.01(f)(4),
this inquiry does not transform the § 25-2602.01(f)(4) chal-
lenge into one implicating the RPA as a whole under Rent-
A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct.
2772, 177 L. Ed. 2d 403 (2010). See Milmar v. Applied
Underwriters, 58 Misc. 3d 497, 68 N.Y.S.3d 645 (2017).
Compare South Jersey Sanitation v. Applied Underwriters,
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840 F.3d 138 (3d Cir. 2016). Citizens’ challenge to arbitra-
tion based on the preemptive effect of the McCarran-Ferguson
Act and § 25-2602.01(f)(4) goes to the validity of the arbitra-
tion agreement, including its arbitration provision delegat-
ing arbitrability, but not the validity of the RPA as a whole.
See, Rent-A-Center, West, Inc. v. Jackson, supra; Milmar v.
Applied Underwriters, supra. See, also, Minnieland Private
Day Sc. v. Applied Underwriters, 867 F.3d 449 (4th Cir. 2017),
cert. denied ___ U.S. ___, 138 S. Ct. 926, 200 L. Ed. 2d 203
(2018); Citizens Humanity v. Applied Underwriters, supra.
Under Rent-A-Center, West, Inc. v. Jackson, supra, where
properly presented, the court must consider the threshold arbi-
trability issue before it can order arbitration. See, also, Nitro-
Lift Technologies, L. L. C. v. Howard, 568 U.S. 17, 133 S. Ct.
500, 184 L. Ed. 2d 328 (2012). The district court erred when it
failed to inquire about arbitrability.
6. The RPA Is an “[A]greement [C]oncerning
or [R]elating to an [I]nsurance [P]olicy”
and Does Not Evade A pplication of
§ 25-2602.01(f)(4) or Fall Into
A ny of Its Exceptions
Having concluded that Citizens lodged a specific chal-
lenge against the validity of the delegation provision as con-
trary to the antiarbitration provision in § 25-2602.01(f)(4),
we next consider whether the RPA is within the scope of that
provision. Although AUCRA attempts to evade the ambit of
§ 25-2602.01(f)(4) by asserting that the RPA is not an insur-
ance policy, we note that § 25-2602.01(f)(4) requires us to
determine only whether the RPA is an “agreement concerning
or relating to an insurance policy.” The phrase “relating to”
is to be read broadly and should be interpreted as being com-
prehensive of the subject indicated. Central States Found. v.
Balka, 256 Neb. 369, 590 N.W.2d 832 (1999).
We note that in South Jersey Sanitation v. Applied
Underwriters, supra, the Third Circuit considered our dicta
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from Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788
N.W.2d 538 (2010), discussing the insurance policies there at
issue and determined that our comment suggested that appli-
cation of § 25-2602.01(f)(4) was limited to agreements in
insurance policies. But such an interpretation would render the
words “concerning or relating to an insurance policy” mean-
ingless. See § 25-2602.01(f)(4). The whole and every part of
a statute must be considered in fixing the meaning of any of
its parts. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d
73 (2016). Under the Nebraska statute, whether or not the RPA
is itself an insurance policy is not the determinative inquiry;
§ 25-2602.01(f)(4) applies to agreements which merely are
“concerning or relating to” insurance. Compare, Minnieland
Private Day Sc. v. Applied Underwriters, supra (remanding
factual question of whether RPA was “insurance contract”
under language of Virginia antiarbitration law); Minnieland
Private Day Sch., Inc. v. AUCRA, No. 1:15-cv-01695AJT-IDD
(E.D. Va. Nov. 9, 2017) (unpublished order) (concluding upon
remand as matter of law that RPA is insurance contract).
Notwithstanding the obvious facts, described in our
“Statement of Facts” section and repeated below, showing that
the RPA is an “agreement concerning or relating to an insur-
ance policy,” AUCRA contends that the RPA is reinsurance and
is a “contract between insurance companies including a rein-
surance contract,” and therefore excepted from the antiarbitra-
tion import of § 25-2602.01(f)(4). As discussed above, the RPA
has the hallmarks of a retrospective rating plan, albeit achiev-
ing that similarity through an unusual contractual arrangement.
Despite its billing as a “Reinsurance Participation Agreement,”
the RPA is a mandatory component of a program of work-
ers’ compensation insurance and sold with a minimum 3-year
term to add a retrospective pricing feature into a guaranteed
cost insurance policy. See, e.g., 5 Steven Plitt et al., Couch on
Insurance 3d § 69:16 (2012).
The fact that the RPA references a “Reinsurance Treaty,”
or an additional contract between AUCRA and its affiliated
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workers’ compensation insurers, does not for purposes of this
case convert the RPA into a “reinsurance contract” “between
insurance companies” even if the affiliated insurers partici-
pate in a pooling arrangement and act as billing agents for
the EquityComp program. See § 25-2602.01(f)(4). Citizens is
not an insurer, see Neb. Rev. Stat. § 44-102 (Reissue 2010),
and the RPA between Citizens and AUCRA is not reinsurance,
see Neb. Rev. Stat. § 44-103(16) (Reissue 2010). The RPA
was not executed between insurance companies. Contrary
to AUCRA’s assertion, the RPA is therefore not “a rein-
surance contract” nor “between insurance companies” under
§ 25-2602.01(f)(4). We decline here to characterize the RPA
as reinsurance, and, as reflected in other cases, we are not
alone in rejecting AUCRA’s varied characterizations of its
agreement. See, Citizens Humanity v. Applied Underwriters,
17 Cal. App. 5th 806, 820, 226 Cal. Rptr. 3d 1, 11 (2017)
(taking judicial notice of 2016 consent order entered into by
California Insurance Company and California Department of
Insurance defining term “RPA” as “‘ancillary or collateral to
a guaranteed cost workers’ compensation insurance policy that
covers claims by California workers’”); Milmar v. Applied
Underwriters, 58 Misc. 3d 497, 68 N.Y.S.3d 645 (2017) (con-
cluding RPA concerns or relates to insurance); Minnieland
Private Day Sch., Inc. v. AUCRA, supra (determining RPA is
insurance contract).
[23] Above, we noted the extensive relationship between the
RPA and affiliated policies of workers’ compensation insur-
ance throughout the marketing and sale of the EquityComp
program, its billing, the creation of a cell in which insurance
premiums would be placed, and a retrospective rate pric-
ing feature drawn from the insureds’ workers’ compensation
claims. The RPA was an integral part of the EquityComp
program, which provided workers’ compensation insurance
to Citizens. We conclude that the RPA is an “agreement con-
cerning or relating to an insurance policy other than a con-
tract between insurance companies including a reinsurance
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
CITIZENS OF HUMANITY v. APPLIED UNDERWRITERS
Cite as 299 Neb. 545
contract” and that thus, § 25-2602.01(f)(4) applies. Because
the RPA is within the ambit of Nebraska’s antiarbitration
statute, § 25-2602.01(f)(4), whereunder certain agreements to
arbitrate are prohibited, the RPA arbitration provision which
delegates arbitrability is an invalid agreement. Accordingly,
the trial court erred when it granted AUCRA’s motion to
stay the court case so that an arbitrator could decide issues
of arbitrability.
VI. CONCLUSION
In this case, we examine only the district court’s decision
enforcing the delegation clause in the RPA which had the
effect of referring the issue of arbitrability to the arbitrator.
Even if Citizens was required to challenge the delegation
clause of the RPA under a discrete and specific standard used
in the FAA, Citizens properly challenged the validity of the
delegation of arbitrability. Giving full effect to the parties’
choice of Nebraska law, we harmonize the FAA in conjunc-
tion with the McCarran-Ferguson Act and § 25-2602.01(f)(4)
and conclude that state law regulating the business of insur-
ance is not preempted by the FAA. Section 25-2602.01(f)(4)
invalidates the parties’ delegation provision in the RPA and
operates here to reserve issues of arbitrability for the court
to decide. The district court should have considered Citizens’
challenge to the validity of delegating arbitrability to the
arbitrator. See Neb. Rev. Stat. § 25-2603(b) (Reissue 2016).
Having concluded that questions of arbitrability should have
been determined by the district court, not an arbitrator, we
reverse the district court’s ruling that the issue of arbitrability
was delegated to the arbitrator and remand the cause for fur-
ther proceedings, including the enforceability of the remainder
of the arbitration provision.
R eversed and remanded for
further proceedings.
K elch, J., not participating in the decision.
Wright, J., not participating.