Well it wasn't a vacation but we did spend the week defending an attack against New York State Insurance Law §3420(g) alleged to be a Bill of Attainder in violation of Article 1, Section 9 of the United States Constitution. This was certainly something different than the usual coverage questions and third party actions we deal with on a daily basis. In this case the plaintiff is seeking a declaration that the spousal immunity voiding coverage found in New York State Insurance Law §3420(g) effectively singles out a particular group (married persons) inflicting a punishment of voiding their insurance liability policy. In Acorn v. The United States, 618F 3rd 125 (2010) the Second Circuit set forth three elements of a constitutional challenge to a Bill of Attainder: (1) Specification of the effective persons; (2) Punishment; and, (3) Lack of a judicial trial. The United States Supreme Court has also addressed the issue of "Punishment" indicating in Nixon v. The Administrator of General Services, et al., 433 US 425 (1977), "the classic example is death, but others include imprisonment, banishment, the punitive confiscation of property, and prohibition of designated individuals or groups from participation in specified employments or vocations". (Consolidated Edison Company of New York, Inc. v. Pataki, 292 F 3rd 338.)
 
The New York State Court of Appeals addresses the Constitutionality of this provision in the 1993 decision of Samuel Yankelevitz v. Royal Globe Insurance Company,  59 NY 2nd 928 (1983), however the Federal Court Challenge, under the U.S. Constitution  is a case of first impression. The legislative intent for the enactment of Insurance Law §3420(g) was to, "Protect insurance carriers against loss through collusive actions between husband and wife". New Amsterdam Casualty Company v. Stecker, 3 NY 2nd 1, 5-6 (1957).  We argue prohibiting collusive insurance claims is clearly within the state interest of the New York State Legislature.  In fact, the spousal exclusion set forth in Insurance Law §3420(g) was amended by the New York State Legislature in 2002 (L.2002, Ch. 584 Sec. 2) to provide for the coverage, if an additional premium was paid.  The "punishment" could easily have been alleviated by the plaintiff paying the applicable premium and obtaining the offered coverage.
 
Nevertheless we enjoyed the week with the Constitution, and we now know more about the history of a  Bill of Attainder than we did before the week began. For those Constitutional scholars amongst our readers, we began with a quote from Chief Judge Warren in  United States v. Brown, 381 US 437 (1965), "A  logical starting place for an inquiry into the meaning of the prohibition is its historical background.  The Bill of Attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in 16th, 17th and 18th Century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.  In addition to the death sentence, attainder generally carried with it a "Corruption of blood", which meant that the attained party heirs could not inherit his property.  The "Bill of Pains and Penalties" was identical to the Bill of Attainder, except that it prescribed a penalty short of death, e.g., banishment, deprivation of the right to vote, or exclusion of the designated parties' sons from parliament.  Most Bills of Attainder and Bills of Pains and Penalties name the parties to whom they were to apply; a few, however, simply described them. While some left the designated parties a way of escaping the penalty, others did not.  The use of Bills of Attainder and Bills of Pains and Penalties was not limited to England.  During the American Revolution, the legislatures of all 13 states past statutes directed against the Tories; among those statutes were a large number of Bills of Attainder and Bills of Pains and Penalties."  Stay tuned for the decision on this case; oral argument is scheduled for May 2, 2012 before Judge Bianco in the Eastern District.