Enforcing Forum Selection Provisions Legal Considerations Brian S. Inamine, Esq. LeClairRyan - Los Angeles Office

The Legal Dispute Typical scenario You are a travel health insurer, cost- containment company, or related entity Your insured-patient needs emergency medical care in the U.S. She is hospitalized for several days

The Legal Dispute The hospital Bill You receive the hospital bill, and it is outrageous In your and other countries, the hospital bill for similar services is much less The travel health insurance policy requires only that reasonable hospital charges will be paid, and you dispute the bill

The Legal Dispute The Realities The hospital will not be in your network or not have a fee agreement with you The hospital will offer you a minimal discount unless you can provide some assurance of volume The hospital sues you in a U.S. court U.S. litigation is expensive

Sued in the United States Can you get out of the U.S. legal system, and have the dispute resolved in your or another country? Look for a forum selection provision in the insurance policy

Sued in the United States Check the Policy Does it contain a forum selection provision – a clause requiring that policy disputes be resolved in another country? Does the policy need to be translated first?

Sued in the United States Check the Lawsuit – Does it Allege: The hospital is suing, has an assignment of policy benefits; thus, is suing under the policy as if it were the insured, OR A collection agency is suing, has an assignment of benefits from the hospital, including an assignment under the policy?

Sued in the United States Identify the Forum Selection Provision: “Arising under,” “All disputes,” OR “Arising out of or relating to”

Sued in the United States “Arising under” clauses Narrowly construed– weakest Applies only to claims relating to interpretation or performance of the policy - e.g., breach of contract, rescission Other types of claims do not fall under the “Arising under” clause –e.g., quantum meruit, fraud Might have to defend abroad and in U.S.

Sued in the United States “All disputes” clauses Broadly interpreted - strongest clause Applies to more than just interpretation or performance of the policy Should cover non-contract legal claims - e.g., negligence, fraud, unfair business practice statutes, etc.

Sued in the United States “Arising out of or relating to” clauses Middle interpretation – between “Arising under” (weakest) to “All disputes (strongest) Covers breach of contract and perhaps other claims having a significant relation to, or having its origins in, the contract Might have to defend abroad and in U.S.

Sued in the United States Enforcing the Forum Selection Provision File a motion to dismiss the lawsuit so that the dispute may be resolved elsewhere The motion must have evidence –The policy must be translated –You must authenticate the policy – prove that the policy is, in fact, real and applies to this insured

Sued in the United States What do you argue to the court? Persuade the court that your forum selection clause is the “All disputes” type

Sued in the United States What to argue to the court ? (cont.) Show that the provision is not unreasonable or unjust: (1) no fraud or overreaching, (2) not deprived of day in court, and (3) not violate a strong public policy

Sued in the United States What do you want the court to do? If the provision is the “All disputes” type and not unreasonable or unfair, Then tell the court to dismiss the entire lawsuit so that the dispute can be resolved elsewhere, under the terms of the policy (e.g., mandatory arbitration, mediation, application of foreign laws, etc.)

Consequences What to Expect if the Court Enforces the Forum Selection Provision The other side might appeal the decision –But costly, delay, establish “bad” law The other side will be pressured to settle –Costly to litigate in another country –Foreign laws might be less favorable

THANK YOU! Brian S. Inamine, Esq. LeClairRyan – Los Angeles