Feinstein v. Nettleship Co.

714 F.2d 928
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 1, 1983
DocketNos. 77-3998, 82-5698
StatusPublished
Cited by10 cases

This text of 714 F.2d 928 (Feinstein v. Nettleship Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feinstein v. Nettleship Co., 714 F.2d 928 (9th Cir. 1983).

Opinion

SCHROEDER, Circuit Judge.

This is a protracted antitrust action by physicians against the insurance agent and carriers who provided medical malpractice insurance to members of the Los Angeles County Medical Association. The question is whether the defendants’ alleged domination of the medical malpractice insurance market in Southern California, through an agreement with the medical association, is immune from antitrust attack. The district court held that the defendants’ conduct was the business of insurance and was regulated by the state. It therefore concluded that [930]*930the antitrust claims were barred by the MeCarran-Ferguson Act exemption to the antitrust laws, 15 U.S.C. § 1012. In addition, the court held that defendants’ conduct did not fall within the boycott exception to that Act, 15 U.S.C. § 1013(b). It granted summary judgment in favor of the defendants. We affirm for the reasons set forth below.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs-appellants Walter Feinstein, Jack Kriegsman, Leo Miller, Morton H. Pastor, and Jason I. Green, are doctors in Los Angeles County who at various times between 1963 and 1969 purchased medical malpractice insurance through defendantappellee Nettleship Company. Nettleship was an underwriting manager for medical malpractice insurance, and was the approved agent for the Los Angeles County Medical Association (LACMA) throughout the relevant period. Defendant Pacific Indemnity was one of the insurance carriers. The other companies named in the complaint were reinsurers.

It is undisputed that at the time this lawsuit began, most professional medical liability insurance in California was written on a group basis. The doctors negotiated with the insurance company through local medical associations. The insurance company issued a master policy to the association, and the participating physicians, in turn, received certificates of insurance.

The facts in this case reflect that pattern. In a written agreement LACMA designated the Nettleship Company the “sole and exclusive agent approved by the association.” Nettleship issued a master policy to LAC-MA and certificates of insurance to the covered doctors. In exchange for exclusive agency, Nettleship agreed not to limit coverage to low risk areas, but to include high risk specialties as required by the members. The agreement also addressed claims handling and provided for the revision of rates, pursuant to annual reports regarding Nettleship’s net profits.

In order to buy insurance through Nettle-ship, a physician was required to be a member of LACMA, but LACMA members were free to purchase medical malpractice insurance elsewhere if they chose. For part of the period in issue, the “exclusivity” provision was not respected, for LACMA used an additional insurance agent. Nettleship, however, gained an increasing share of the medical malpractice insurance market in Southern California, and, during the late sixties it imposed substantial, successive rate increases. In 1969, plaintiffs filed their complaint in this case alleging conspiracy to monopolize and monopolization, price-fixing and tied sales, as well as boycott, fraud and coercion.

In 1971, the district court granted the defendants summary judgment on price-fixing and related claims, on the ground that insurance rate-setting was regulated by state law and thus fell within the exemption of the MeCarran-Ferguson Act. 15 U.S.C. §§ 1011-15. In 1977, the district court granted summary judgment on the remaining antitrust claims, holding that the entire action was barred by the McCarranFerguson Act and that the plaintiff-physicians, as policyholders, lacked standing to raise the boycott exception in 15 U.S.C. § 1013(b). The district court’s holding on standing was dictated by our decision in Addrisi v. Equitable Life Assurance Society of the United States, 503 F.2d 725 (9th Cir.1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975). After the 1977 district court decision in this case, however, that aspect of Addrisi was overruled by St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978) which held that policyholders may invoke the boycott exception. In 1979, this court therefore remanded for reconsideration in light of Barry.

Following remand the district court in 1980 granted partial summary judgment for the defendants on plaintiffs’ tying claims. In 1982, the district court granted summary judgment to defendants on all remaining issues on the ground that the action was barred by the MeCarran-Ferguson Act and that the defendants’ conduct did not consti[931]*931tute a boycott under 15 U.S.C. § 1013(b). There is no factual dispute and we review solely to determine whether defendants were entitled to judgment as a matter of law. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, 690 F.2d 1240, 1250 (9th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

II. DISCUSSION

The McCarran-Ferguson Act provides that:

(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the 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 .... Provided, that ... the Sherman Act, and ... the Clayton Act, and ... the Federal Trade Commission Act ... 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.

Section 1013(b) of the McCarran-Ferguson Act provides that

Nothing contained in this act shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.

The McCarran-Ferguson Act creates an antitrust exemption for the business of insurance which was prompted by the Supreme Court’s departure in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944) from prior holdings that insurance is not a transaction in interstate commerce. See Barry, 438 U.S. at 538-39, 98 S.Ct. at 928-29. The Act was passed in response to widespread concern that the states should be permitted to continue regulating and taxing the insurance industry.

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Feinstein v. Nettleship Co. Of Los Angeles
714 F.2d 928 (Ninth Circuit, 1983)

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Bluebook (online)
714 F.2d 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feinstein-v-nettleship-co-ca9-1983.