The Holocaust Insurance Accountability Act of 2007, H.R. 1746, was amended during a House Financial Services Committee markup in late June and is awaiting further consideration by September 26, 2008 by the Committee on Foreign Affairs, the Committee on Oversight and Government and the Judiciary Committee. House Financial Services Committee Chairman Barney Frank (D-MA) introduced a Manager's Amendment June 25 designed to preserve the results achieved through the International Commission on Holocaust Era Insurance Claims (ICHEIC) and diplomacy while giving Holocaust survivors and their heirs an opportunity for judicial redress.
The amendment creates a federal cause of action for Holocaust survivors and their heirs for any claim arising out of or related to a covered policy. Claims must be asserted within ten years of the bill's effective date. The amendment also removed the bill's treble damages provision and provides a safe - harbor from suit for covered policies where:
- Payment has been made or a release has been granted;
- Payment has been received or denied under ICHEIC, a government-supported Holocaust claims process, the Holocaust Claims Processing Office or any process for resolution of Holocaust-era insurance claims established under a class-action settlement; or
- Suit was previously filed against the insurer on the covered claim.
There is no cause of action on claims for which payment from ICHEIC has been received, even when payment was made on behalf of an insurer that was not an ICHEIC participant. These changes avoid the constitutional issues presented in the bill's original provisions that authorized the reopening of previously adjudicated causes of action. The amendment also preserves the diplomatic agreements regarding immunity from suit made through the ICHEIC process to entice insurer participation.
Chairman Frank's amendment received broad support, with Ranking Member Spencer Bachus (R-AL) praising the amendment's careful balance and concern for fairness. Despite this bipartisan support, certain members favor a more aggressive bill. Rep. Brad Sherman (D-CA) introduced two such amendments. Rep. Sherman's first amendment, which was adopted, modified the penalty provisions to allow the collection of fines from subsidiaries of foreign insurers doing business in the U.S. for penalties assessed against foreign insurers that fail to respond to inquiries about covered policies. Sherman's second amendment sought to restore the creation of a Holocaust insurance registry to the bill that could be searched by Holocaust survivors and their heirs to locate potentially applicable insurance policies. That proposal had been removed from the bill in Chairman Frank's Manager's Amendment. This amendment failed, in part, due to concerns about the significant administrative burden on insurers and privacy laws. Rep. Sherman indicated that he would focus on bringing this and other amendments to the Judiciary Committee.
Given the number of committees that have a stake in this sensitive and politically significant legislation, the bill is likely to undergo additional changes before making it to the floor. Due to the relatively short legislative session and the impending elections, enactment during this Congress is very unlikely. The bill may well reappear on the national political scene during the run - up to the elections because of the reputational and financial vulnerability of insurers to such a difficult and emotional issue that resonates with the public consciousness.