IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION _____________________________ INSURANCE SOCIETY, **Plaintiff,**VS. *CIVIL ACTION NO.:** CV-_________________________________; and *______________________, **Defendants.* BRIEF IN SUPPORT OF DEFENDANTS=, ____________________AND
____________________S, MOTION TO DISMISS _________ COMPLAINT AND
PETITION TO COMPEL ARBITRATION
I.Pertinent FactsThe __________ filed a complaint in the Mobile County Circuit Court on November 12,
_______against _______ and ________s agents, ______and ______. The __________ alleged
claims of fraud and conspiracy against the defendants based on the sale and servicing of
____________adjustable life insurance policies (and the surrendering of their older policies) in
1984. The___________ assert in their complaint that they met with _______ agent _______at
their home in October of 1984 to discuss their insurance coverage with _______. The
____________already had policies with _______ with built-up cash value, that ______
suggested they surrender and put into two new policies. ______ told the __________ that Mr.
_________ could purchase a 150,000 policy for $102.00 per month and ______________ could
purchase a policy for approximately $20-$30 per month. The __________ had told ______ that
2 they only wanted permanent type of coverage where the insurance was guaranteed for life for the
premium paid. The __________ did not want term or term-like insurance where the policy runs
out at a certain age. _______told them that she had just the policy for them. She stated that as
long as the premiums quoted were paid, the insurance coverage would exist. She further told the
__________ that these policies had a savings fund where money would continue to build up for
the __________= retirement. The __________ were told that the savings and the insurance were
separate parts of the same product, except that they could use the savings fund to pay premiums
on the policies if they ever needed or wanted to do that. ______ showed the __________ illustrations with the current rates only (no guarantees),
which reflected that Mr. ___________could have $58,114 he could withdraw at age 65, and Mrs.
_________ would have around $10,000 she could withdraw. ______ told the __________ that taking these amounts out would not affect the insurance coverage. ______ told the __________
that _______ was paying 8%-10% interest on the money in the savings fund because of the
money________ was saving on not advertising this policy to the public. ______ convinced the
__________ to exchange their older policies for these new policies. Consequently, close to
$6,000 dollars was taken from Mr.__________= s policy ($5,922.73) and put into his new policy,
and $447.05 was taken from Mrs. _________=s older policy and put into her new policy.______ did not inform the __________ that these new policies were actually a type of
term insurance where the cost of insurance goes up each year, and that the premium_______
quoted the __________ for each policy would not carry the policies to maturity or even through
the __________= life. The policies will lapse within a few years, leaving the __________
without insurance coverage they thought they had purchased or the retirement money
guaranteed.
3 Upon the Rainwaters discovering in 1998 through counsel the actual type of policy sold
to them, and the problems with those policies, they filed their Complaint. Upon being served,
_______ filed a Removal to this Court. _______ did so without the Alabama resident ______
being served. The __________ promptly filed a Motion for Remand, with which ______, after
being served at her home in Baldwin County, Alabama, agreed. The case was then remanded to
the Circuit Court of Mobile County on _____________. _______ thereafter filed this Complaint
and Petition under 9 U.S.C. ''3 and 4 with this Court. The Arbitration provision that _______ seeks to force the ___________to follow instead
of their suit in the Mobile County Circuit Court was not a part of the applications they signed to
purchase the policies in 1984 (or the earlier ones), and was not a part of the policies. Indeed, no
reference is made to arbitration in any of the documents given to the ________by _______,
except of course document sent subsequently to the amendment. _______ claims that simply
because it is allowed to amend its Constitution and Laws at any time if certain requirements are
met, and that the amendments are supposed to be binding on its policyholders (as a Fraternal
Benefit Society), retroactively, that it can make any amendment it wants, even where as here, the
amendment violates established federal and state law and constitutional rights of the
__________. This interpretation by _______ of the statutes relating to Fraternal Benefit
Societies issuing insurance policies is erroneous. The __________= 1984 policies in Part
Two(2), starting on page six (6), define that the contracts between them and _______ consist of
the policy with all applications, endorsements, etc., the written application attached to the policy,
the Articles of Incorporation of _______, and the Constitution and Laws of _______. _______
fails to include within the definition any amendment to the Constitution, Laws, or Articles of
Incorporation. Page seven (7) of each of the policies provides that the terms of the policy are
4 governed by the laws of the state where it is delivered. (See the __________= policies attached
to _______=s Complaint as Exhibit B). In this case, the state is Alabama. It was not until approximately twelve (12) years after the __________ purchased the
policies that _______ decided to amend its Constitution to include an alternative dispute
resolution procedure for all claims brought by insureds against ________ This amendment was
made in December of 1996. The final step of the procedure is arbitration. _______ unilaterally,
without the knowledge or vote of its policyholders, held a quick telephonic Ameeting@ of the
Board of Directors of _______ and voted to amended its constitution to take away its insureds=
rights to trials by juries. II.Analysis of Law A.The McCarran-Ferguson Insurance Regulation Act, 15 U.S.C. '' 1011-1012
(1945), in conjunction with the Alabama (Insurance) Code ' 27-14-22, and
Alabama's Anti-Arbitration Statute, Ala. Code ' 8-1-41(3), prohibit
enforcement of arbitration clauses in insurance policies purchased in
Alabama._______ has asserted that it should be allowed to force the __________ to arbitrate their
disputes pursuant to the FAA, and the alternative resolution/arbitration provisions amended into
its Constitution and laws recently in December of 1996. The __________= policies and
applications to purchase the policies contain no clause relating to arbitration or make any
reference to arbitration whatsoever. The __________ did not agree to arbitration of any of their
claims against _______, and further and most importantly, arbitration agreements in insurance
contracts are prohibited in Alabama by the McCarran-Ferguson Insurance Regulation Act, 15
U.S.C. '' 1011-1012 (1945) and Ala. Code ' 8-1-41(3). Section 2 of the FAA relied upon by _______ provides in pertinent part:
5 A written provision in any ... contract evidencing a transaction
involving interstate commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction ... shall be
valid, irrevocable, and enforceable....9 U.S.C. ' 2.Historically, the United States Supreme Court has held that the business of insurance is
not "commerce" within the meaning of the United States Constitution's Commerce Clause.
Thus, insurance was beyond the scope of federal control via statutes such as the FAA or
otherwise. Then, the United States Supreme Court's 1944 decision in United States v.
Southeastern Underwriters Assoc., 322 U.S. 533 (1944), declared that the "business of
insurance" was interstate commerce subject to the Sherman Antitrust Act. Congress responded
quickly to this case by enacting the McCarran-Ferguson Insurance Regulation Act, 15 U.S.C. ''
1011-1012 (1945). This Act reserved to the states the sole right to regulate the business of
insurance. Indeed, Congress enacted this statute for the specific purpose of giving each State
broad and primary responsibility for regulating the insurance industry. S.E.C. v. National Sec.,
Inc., 393 U.S. 453, 458 (1969); Barnhardt v. Marine Ins., Inc., 961 F.2d 529, 531 (5th
Cir. 1992).
In relevant part, the Act provides:Regulation by state law, federal law relating specifically to insurance; applicability of certain federal law after June 30th, 1948.(a) the business of insurance, and every person engaged
therein, shall be subject to laws of several states which relate to the
regulation or taxation of such business.(b) 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; PROVIDED, that after June 30th, 1948, theAct of July 2, 1890, as amended, known as the Sherman Act, and
6 the Act of October 15, 1914, as amended, known as the Federal
Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not
regulated by state law.15 U.S.C. '1012(a) and (b). Ordinarily, federal law preempts conflicting state law due to the
Supremacy Clause in the United States Constitution, Art. VI, Cl. 2. The McCarran-Ferguson
Act, however, reverses that rule in situations involving state regulation of the insurance industry.
While the Act specifically reserves the application of certain federal provisions to the regulation
of insurance companies, the FAA is not one of them. The McCarran-Ferguson Act allows a state
law to reverse preempt a federal statute where: (1) the federal statute does not specifically relate
to the business of insurance; (2) the state law was enacted for the purpose of regulating the
business of insurance, and (3) the federal statute operates to invalidate, impair, or supersede the
state law. The recent United States Supreme Court case of Humana, Inc., et al. v Forsyth, et al.,
119 S.Ct. 719 (January 20, 1999) directly addresses the issue of whether or not the McCarran-
Ferguson Act preempts and precludes federal law in certain situations. The Humana case held
that The McCarran-Ferguson Act precludes the application of a federal law, where state and
federal laws directly conflict and the application of the federal law would frustrate state policy.
Id.The FAA is unquestionably not an AAct of Congress@ that Aspecifically relates to the
business of insurance. @ The legislative history of the FAA clarifies that it was never intended to
apply to or regulate the business of insurance. In December 1922, the United States Senate and House of Representatives submitted
7 simultaneous Bills in regard to the passage of what we now know as the FAA. Bills S. 4214 and
H.R. 13522 were introduced and debated by the members of Congress in regard to establishing
the FAA. In 1922, the Senate Judiciary Committee held a hearing on S. 4212 and focused much
of their attention on the arbitration provision=s effect on consumers and a citizen's constitutional
right to a trial by jury. Senator Walsh and Mr. W. H. H. Piatt1
were two proponents who argued
in favor of passage of S. 4212. The following is an excerpt from their discussion of the FAA in
the Senate Judiciary Sub-Committee:Senator Walsh of Montana. The trouble about this matter
is that a great many of these contracts that are entered into are
really not voluntarily things at all. Take an insurance policy, there
is a blank in it. You can take that or you can leave it. The agent
has no power at all to decide it. Either you can make the contract
or you cannot make any contract. It is the same with a good many
contracts of employment. A man says "these are our terms. All
right, take it or leave it." Well, there is nothing for the man to
do except to sign it; and then he surrenders their right to have
their case tried by the Court, and has to have it tried before a
tribunal in which he has no confidence at all.Mr. Piatt. That would be the case in that kind of case I
think; but it is not the intention of this Bill to cover insurance
cases. 1
W.H.H. Piatt was a representative of the American Bar Association serving as Chairman of
the Committee of Commerce, Trade, and Commercial Law.
8 Sales and Contracts to Sale in Interstate and Foreign Commerce, and Federal Commercial
Arbitration, hearing on S. 4212 and 4214 before a subcommittee of the Committee on the
Judiciary, 67th Cong., 4th Sess. 9-10 (1923) (emphasis added).; see also Allstar Homes, Inc. v.
Waters, 711 So.2d 924 (Ala. 1997).The original legislative intent of the FAA was not to govern insurance contracts. There
can be no other meaning derived from the language of the senator who sponsored passage of the
FAA other than the FAA does not govern insurance contracts. There is no need for the FAA to
govern an insurance contract because the McCarran-Ferguson Act explicitly reserves that right
to the several states.As to Ala. Code ' 8-1-41 being a state statute relating to the business of insurance, at least
one Federal Circuit has interpreted a similar statute to be relating to insurance. See Mutual
Reinsurance Bureau v. Great Plains Mutual Ins. Co., Inc., 969 F.2d 931 (10th
Cir. 1992). The
insured in that case argued that the McCarran-Ferguson Act precluded application of the FAA to
an insurance agreement because the FAA conflicted with a law of that state (Kansas) that
discouraged arbitration clauses. Id. 969 F.2d at 934. The Kansas statute stated that arbitration
agreements are enforceable except in contracts of insurance. Alabama=s anti-arbitration statute is stronger than the Kansas statute in that it is a blanket
prohibition to pre-dispute arbitration clause. Ala. Code ' 8-1-41(3) regulates business in general,
including the business of insurance. This Code Section in pertinent part, is as follows:' 8-1-41. Obligations which cannot be specifically enforced.The following obligations cannot be specifically enforced: * * *
9 (3) An agreement to submit a controversy to arbitration; * * * This statute is part of Title 8 of the Code entitled ACommercial Law and Consumer Protection@
(emphasis added). It is the public policy of this State, for protection of consumers such as
purchasers of life insurance, that pre-dispute arbitration agreements are not enforceable. As stated by the United States Supreme Court, the category of law enacted Afor the
purpose of regulating the business of insurance @ is broad and consists of those laws Athat
possess to end, intention, or aim@, of adjusting, managing, or controlling the business of
insurance. In determining what constitutes the Abusiness of insurance@ The McCarran-
Ferguson Act contemplated the focus being on the relationship between the insurance company
and the policyholder. AStatutes aimed at protecting or regulating this relationship, directly or indirectly, are laws governing the Abusiness of insurance.@ United States Treasury Dept. v.
Fabe, 508 U.S. 491 (1993); Union Labor Life Ins. Co. v. Pirenzo, 458 U.S. 119 (1982); S.E.C. v.
National SEC, Inc., 393 U.S. 453 (1969); Mutual Reinsurance Bureau, 969 F.2d at 933. It is not
necessary that the state statute be in the form itself of an insurance code or an act relating only to
insurance. Mutual Reinsurance Bureau, 962 F.2d at 934. Ala. Code ' 27-14-22, an Ainsurance@ statute, specifically incorporates Alabama= s anti-
arbitration statute ' 8-1-41 by providing that Alabama contract law must apply to any and all
insurance agreements made in the State of Alabama. The Act states:All contracts of insurance, the application for which is taken within this
state, shall be deemed to have been made within this state and subject to the laws
thereof. Ala. Code ' 27-14-22. (emphasis added). The language of ' 27-14-22 is unambiguous. Alabama
law consequently specifically references Alabama=s anti-arbitration statute as being applicable
10 to insurance contracts.Lastly, the FAA, in providing for the enforcement of arbitration agreements, thus directly
Ainvalidates and impairs@ Ala. Code ' 27-14-22 and ' 8-1-41(3) governing arbitration as to
insurance contracts in Alabama. Because of this direct conflict, and the frustrating affect the
FAA would have on Alabama statutory law, the McCarran-Ferguson Act combined with '' 8-1-
41 and 27-14-22 prevents application of the FAA.2Based on the authority cited herein, it is clear that Alabama's Anti-Arbitration Statute
found at ' 8-1-41(3) and incorporated in the Alabama Insurance Code via ' 27-14-22, reverse
preempts the FAA under the McCarran-Ferguson Act, and prohibits the enforcability of an
arbitration clause in an insurance contract in Alabama. 2.The Federal Arbitration Act, 9 U.S.C. ' 1 et. seq., is not applicable in the present
case and can not be used to force arbitration on The __________ where there is
no evidence of a signed voluntary agreement to arbitrate by The ___________ 2
On March 6, 1998, the Alabama Supreme Court released Ex parte Hagan, 1998 W.L.
96550 (Ala., March 6, 1998). That opinion includes language inviting the argument that the anti-
arbitration statute regulates the business of insurance within the meaning of The McCarran-
Ferguson Act so that The McCarran-Ferguson Act does not allow the FAA to invalidate
Alabama=s Anti-Arbitration Statute as to insurance matters. Assuming arguendo, this Court finds that an arbitration clause is allowable in Alabama
contracts of insurance, the prerequisites to enforcing an arbitration clause have not been met in
this case because the___________ did not voluntarily enter into or sign a written agreement
calling for arbitration. _______ simply unilaterally amended its Constitution to include
arbitration more than twelve (12) years after the Rainwaters = policies were purchased. Under Alabama law, pre-dispute arbitration agreements in contracts are prohibited and
nonenforcable on the basis that it violates public policy. Ala. Code ' 8-1-41; Jim Burke
11 Automotive, Inc. v. Beavers, 674 So.2d 1260 (Ala. 1995); Lopez v. Home Buyers Warranty
Corp., 670 So.2d 35 (Ala. 1995); Old Republic Ins. Co. v. Lanier, 644 So.2d 1258 (Ala. 1994). The only instance in which an arbitration clause is enforceable in Alabama is if the FAA
preempts Alabama law in a given fact situation. And, the FAA would only preempt Alabama
law and apply to render an arbitration clause enforceable if the arbitration clause is (1) an
agreement voluntarily entered into by all parties and signed by the plaintiff, and (2) the
arbitration agreement is contained in a contract that involves interstate commerce. Electrical
Box & Enclosure, Inc. v. Comeq, Inc., 626 So.2d 1250, 1251-1252 (Ala. 1993). The FAA does
not make all arbitration clauses enforceable; rather, it makes arbitration agreements enforceable.
Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615, 617 (Ala. 1997). The determination of
whether the parties agreed to arbitrate is judged by state law principles governing the formation
of contracts. Id.; First Options of Chicago v. Kaplan, 514 U.S. 938, 13 L.Ed2d 985, 993 (1995). In the present case, it is clear that The __________ did not voluntarily enter into or sign a
written arbitration agreement with _______. Hence, one of the requirements of the FAA is not
met and Alabama law controls, prohibiting pre-dispute arbitration clauses/agreements. Under Alabama contract law, the language of the contract is to be given its clear meaning
and determines whether a dispute is to be submitted to arbitration. Shadrick v. Johnston, 581
So.2d 805, 810 (Ala. 1991). The duty to arbitrate is a contractual obligation and a plaintiff
cannot be required to submit to arbitration any dispute that he did not agree to arbitrate. Ex parte
Pope, 706 So.2d 1156 (Ala. 1997); A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 361
(Ala. 1990). The purpose of a signature from plaintiff is to show ?mutuality and assent @ which
are required for a contract to be binding. The absence of a signature of the plaintiff under an
arbitration clause shows a lack of mutuality and assent. Lawler Mobile Homes, Inc. v. Tarver,
12 492 So.2d 297, 304 (Ala. 1986). Further, the addition of an arbitration clause after an agreement
between the parties that establishes the fundamental bargain, constitutes a material alteration of
the contract. Coastal Industries, Inc. v. Automatic Steam Products Corp., 654 F.2d 375, 378 (5th
Cir. Unit B, 1981). In Coastal Industries, Inc., supra, the issue was whether an arbitration clause
was part of the contract of sale of four commercial pressing machines from the defendant to the
plaintiff Alabama corporation. In finding that the plaintiff did not voluntarily and expressly
accept the arbitration clause, the court stated that the addition of the clause unilaterally by the
defendant in this case constituted a material alteration, which is defined as an addition or change
to the contract which would result in surprise or hardship if incorporated without express
awareness by the other party. Id., 654 F.2d at 378. By requiring evidence of an express
agreement permitting the inclusion of an arbitration provision into a contract, the court protects
the plaintiff who will be unwillingly deprived of a judicial forum in which to air their grievance.
Id. The addition of the arbitration clause after an agreement had already been reached by the
parties as in Coastal Industries, Inc., supra, has been specifically reaffirmed by the Alabama
Supreme Court to be a material alteration. See Electrical Box & Enclosure, Inc., 626 So.2d at
1252.In the recent case of Ex parte Hopper, [Ms. 1970259] ____ So.2d ____ (Ala. 1/15/99),
this Court specifically held under facts similar to those in this case, that Woodmen could not
force arbitration upon the Hoppers because the Hoppers did not assent to the arbitration
procedure adopted by Woodmen. The Court cited Allstar Homes, Inc. v. Waters, 711 So.2d 924
(Ala. 1997) for this holding. As the Alabama Supreme Court so aptly stated:When the Hoppers signed their original contract for insurance, none of the documents
mention in that original contract contained an arbitration provision. Although the
Hoppers= certificate of insurance did incorporate future amendments to the governing
13 laws of the Society, a provision of this kind is not enough to put the Hoppers on notice
that by signing their application for insurance they were agreeing to mandatory, binding
arbitration. The Hoppers= agreement to allow the Society to make certain unilateral
changes to their insurance agreement does not provide the clear and unmistakable
evidence required to show that the Hoppers voluntarily waived their constitutional rights
to a judicial resolution. (Citations omitted).When a court is addressing the scope of an arbitration provision, it resolves every
question in favor of arbitration, but the opposite is true when a court is addressing the
threshold issue whether a party has voluntarily waived the right to a judicial resolution by
entering into an agreement to arbitrate. (Citations omitted). . . . It is a central tenet of
constitutional law that Acourts indulge every reasonable presumption against waiver.@
Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 (1936). A[A] waiver of
constitutional rights in any context must , at the very least, be clear.@ Fuentes, 407 U.S.
at 95.This Court has consistently recognized the requirement that, in order to be required to
arbitrate, the parties must have expressed an intent to arbitrate. In the recent case of Ex
parte Beasley, 712 So.2d 338, 341 (Ala. 1998), this Court stated that >[a]bsent [the
plaintiff=s] signature on a document [containing] a valid arbitration clause, we cannot
hold that [the plaintiff] agreed to arbitrate her claims against [the defendant].@ This case
presents a similar situation. The Hoppers were never asked to sign a document
containing or referencing an arbitration agreement. In addition, the Hoppers received no notice when the Society adopted the amendment 11 years later. In short, the Hoppers
were never given the option of considering whether or not to agree to arbitration.
Without this option, we cannot find a valid agreement to arbitrate. In the present case, as already stated previously, The __________= contracts of insurance
purchased in 1964 and in 1987, did not contain any arbitration clauses, and certainly not any
agreements. The policies themselves define the entire contracts as including the certificate, any
endorsements, applications, and amendments, the written application, the Articles of
Incorporation and Constitution and Laws of Woodmen. The written applications were the only
documents mentioned above which were signed by the __________. The policies themselves
were not signed. Further, this section includes as part of the contract, the Articles of
Incorporation and Constitution and Laws of ________as they existed at the time the contracts
were entered into by the __________. At all material times mentioned, the Articles of
14 Incorporation, the Constitution, and Laws of Woodmen, did not contain an arbitration clause or
provision. The arbitration clause at issue in this case was not ?born@ into the _______ Constitution
until December, 1996. At that time, the Constitution was amended to include an arbitration
clause and was not put to a vote by _______ policyholders, nor was it required to be voluntarily
agreed to by the insureds. Indeed, the Board of Directors meeting was only briefly held
telephonically for the purpose of quickly adopting the dispute resolution/arbitration procedure.
No signature of any policyholder was required when accomplishing this amendment. The
insureds did not learn of the amendment until _______ sent brochures to insureds subsequent to
the amendment being made. Clearly, there is no voluntarily, signed, written agreement by The
__________ as to an arbitration clause, and same is thus not binding upon the __________. See
Ex parte Bentford, 719 So.2d 778 (Ala. 1998). Because the prerequisites of the FAA are not met in this fact situation, the FAA does not
apply to preempt Alabama=s state law. Under controlling Alabama law, this arbitration clause,
unilaterally drafted by Woodmen, is not enforceable.3.The arbitration provision purported by _______ to be a part of The __________'
policies violates their right to trial by jury under Amendment VII of the United
States Constitution and Ala. Const. Art. I, '' 10, 11 and 13._______=s attempted forcing of the __________ to pursue their claims through arbitration
violates the __________' right to trial by jury provided in Amendment VII of the United States
Constitution and in Ala. Const. Art. I ' 10, 11 and 13 (1901 amended 1943). Petitioner's right to
trial by jury under United States and the Alabama Constitutions is "inviolate". The United States
Constitution, Amendment VII provides:
15 Trial by Jury in Civil Cases.In suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-
examined in any court of the United States, than according to the rules of the common
law. As stated in the Alabama Constitution:Sec. 10. Right to Prosecute Civil Case.That no person shall be barred from prosecuting or defending
before any tribunal in this state, by himself or counsel, any civil
cause to which he is a party.Sec. 11. Right to Trial by Jury.That the right of trial by jury shall remain inviolate.Sec. 13. Courts to be Open; Remedies for all Injuries;
Impartiality of Justice.That all courts shall be open; and that every person, for any injury
done him, and their lands, goods, person, or reputation shall have a remedy by due process of law; and right and justice shall be
administered without sale, denial, or delay.Ala. Const. Art. I ' 10, 11 and 13 (1901 amended 1943).The arbitration provision before this Court strips away the __________' right to trial by
jury by unilaterally forcing arbitration upon the __________ without an agreement, without
signatures, and without any type of authorization from the __________ as the policyholder.Ala. Code ' 8-1-41(3) as applicable to insurance contracts through Ala. Code ' 27-14-22,
was an attempt by the Alabama Legislature to insure preservation of every Alabama citizen's
right to trial by jury. The framers of ' 8-1-41(3) did not want Petitioner's right to trial by jury to
be terminated by arbitration clauses. _______=s attempt to unilaterally insert an Aunbargained
for@ arbitration provision into the __________' policies is a violation of the __________' right
16 to trial by jury. This kind of act is prohibited by the United States federal law, by Alabama state
law, and the McCarran-Ferguson Act.As can be seen, every Alabama citizen who enters into an insurance contract in the State
of Alabama, has the inherent right and benefit to a trial by jury should they seek such redress.
To hold otherwise would absolutely violate the policyholders= constitutional rights under both
the United States Constitution and the Constitution of the State of Alabama. Justice Kennedy,
writing for the Supreme Court of Alabama, recently stated in Ex parte Bentford, supra:It would be fundamentally unjust for this Court to articulate a standard whereby
the citizens of this state, when entering contracts, would be required to leap from
document to document searching for provisions that, in amongst the fine print and
voluminous documentation, might operate to deprive them of their fundamental
rights without their acknowledged consent.Ex parte Bentford, 719 So.2d 781.Thus, _______ seeks to have this Court violate the __________= right to trial by jury
through application of _______= s unilateral adoption of an arbitration provision in its
Constitution.III.ConclusionThe foregoing arguments and legal authority clearly reflect that arbitration clauses in
contracts of insurance are prohibited in Alabama; even if, for arguments sake, the FAA is
applicable to contracts of insurance, the requirement of a voluntary, signed arbitration agreement
is not present. _______=s Complaint and Petition to Compel Arbitration is due to be dismissed.
17 JOHN DOE & ASSOCIATES, P.C.Attorneys for DefendantsPost Office Drawer ______, Alabama (334) ________BY:____________________________________Plaintiff=s attoreny(Fed. number for attorney) CERTIFICATE OF SERVICE I do hereby certify that I have on this _____ day of ___________, served a copy of the
foregoing pleading by mailing same by United States mail, properly addressed and first class
postage prepaid, to the following:Defense counsel listed here____________________________________Plaintiff=s attorney
