Alliance of Nonprofits for Ins v. Brett Barratt

The Liability Risk Retention Act (the “LRRA”) broadly preempts “any State law, rule, regulation, or order to the extent that such law, rule, regulation, or order would ... make unlawful, or regulate, directly or indirectly, the operation of a risk retention group.” 15 U.S.C. § 3902 (a)(1). This provision preempts the Order of the Nevada Commissioner of Insurance (the “Commissioner”), which prohibited Alliance of Nonprofits for Insurance, Risk Retention Group (“ANI”) from writing “first dollar” liability policies in Nevada. Therefore, we affirm the district court’s entry of declaratory and injunctive relief in favor of ANI. However, because the LRRA’s preemption provision does not unambiguously confer a right to be free from state law that can be enforced under 42 U.S.C. § 1983 , we vacate the fee award.

FACTS

ANI is a risk retention group (“RRG”), chartered in Vermont. In 2001, ANI registered with the Division of Insurance of Nevada’s Department of Business and Industry (the “Division”) to transact liability insurance in Nevada. By registering with the Division, ANI obtained a Certificate of Registration; however, the Division has not issued ANI a Certificate of…