David M. Barry, M.D. v. St. Paul Fire & Marine Insurance Company

LEVIN H. CAMPBELL, Circuit Judge

(dissenting in part).

The court seems to me to be straining mightily to reinterpret the legal relationship ordinarily understood to have been established under the McCarran-Ferguson Act, perhaps because it has some doubts about the policies of that Act.

*14 The McCarran-Ferguson Act declares that “the continued regulation and taxation by the several States of the business of insurance is in the public interest”, 15 U.S.C. § 1011 , and “shall be subject to the laws of the several States which relate to the regulation or taxation of such business”, § 1012(a). 1 The Act goes on to say that no Act of Congress shall invalidate, impair or supersede state regulatory laws, § 1012(b). Finally, it provides that the various antitrust statutes, including the Sherman Act, shall apply only to the extent a state does not exercise its right to regulate, § 1012(b). The court concedes, as do the parties, that Rhode Island has exercised its right to regulate all material aspects of the business of insurance and that the actions complained of relative to withholding malpractice insurance were all part of such regulated business. Thus, under the clear implication of § 1012, neither the Sherman Act nor the other antitrust laws apply except insofar as the § 1013(b) exception permits. That exception provides, “Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” Significantly this language does not track the broad “contract, combination . . . or conspiracy” language of the Sherman Act which Congress reasonably might have chosen had the intent been, as my brothers state, to encompass in the exception virtually all activities in violation of the Sherman Act involving more than an individual monopolist.

While the precise scope of the exception language may be less than crystal clear, given the statutory scheme, I have no difficulty understanding why two circuit courts and six district courts—every court except, now, ourselves — have held that the § 1013(b) exemption is to be read narrowly as describing boycotts, coercion or intimidation directed against other companies and agents rather than, broadly, as also encompassing the gamut of company-policyholder relations. See, e. g., Meicler v. Aetna Casualty & Surety Co., 372 F.Supp. 509, 513-14 (S.D.Tex.1974), aff’d, 506 F.2d 732 (5th Cir. 1975). The legislative history indicates that the former problem was what worried Congress when it enacted the exception, and a narrow reading is more consistent with § 1012 and with the purpose and structure of the act generally. 2 Indeed, to read § 1013(b) expansively is to hold that what Congress gave with one hand it took with the other, since while my brothers’ reading does not introduce the entirety of federal antitrust law into the business of insurance, it introduces a very major part thereof and does so with no clear explanation of why *15 Congress should first take pains to eliminate the antitrust laws and then reintroduce by the back door most of the Sherman Act. Only if, like all other courts, we read § 1013(b) as dealing with a limited type of problem which troubled Congress does the exception fit sensibly into the statute as a whole.

The central thread running through the McCarran-Ferguson Act is that regulation of insurance rates and policies — both of them matters falling under the general heading of relations between companies and policyholders — is left to the states. The present litigation brought by physicians who believe that they have been deprived, unfairly, of insurance on terms that are economically favorable focuses precisely upon company-policyholder matters. My brothers are now putting the federal courts in the same arena as the State of Rhode Island, contrary, I believe, to the purpose of the McCarran-Ferguson Act. Doubtless the federal perspective is somewhat different but the potential for conflict between state regulation and federal antitrust policies is real and the decision has the effect of substantially undercutting § 1012(b) of the Act.

This is, I think, a most unfortunate decision. It not only introduces a new category of federal antitrust suit which will be very difficult to manage at a time when federal courts are strained to the limit, but it could have unforeseeable effects upon state regulatory policies. Plaintiffs may see this case as another string to their bow in attempting to deal with the crushing malpractice burdens being imposed as the result not only, perhaps, of predatory insurance practices but of inflated claims and verdicts. We might sympathize with them without going this far. The State of Rhode Island has apparently now enacted regulatory legislation dealing with some or all of the problem — a means of redress which seems far more responsive to the problem than any likely to be achieved through reinterpreting the McCarran-Ferguson Act thirty years after enactment.

I shall not attempt to deal with the legislative history which my brothers make much of, beyond saying that, like most legislative history, it is capable of being argued both ways depending on which legislator one reads and to whose views one ascribes final authority. Certainly, in the expressed concerns of the legislators there is explicit support for the view which all other courts have adopted to date. More important to me, however, is the statutory scheme which suggests in the positioning of the exception, and in the very fact that the exception is just that, that § 1013(b) should be construed in a manner complementary to, rather than subversive of, the major premises of the Act. Under my brothers’ reading, the tail now wags the dog.

I would affirm the district court which acted, I think, correctly and in accordance with all existing law.

. The Supreme Court has said that “[t]he relationship between insurer and insured, the type of policy which [can] be issued, its reliability, interpretation, and enforcement—these [are] the core of the ‘business of insurance’ ” covered by the McCarran-Ferguson Act. SEC v. National Securities, Inc., 393 U.S. 453, 460 , 89 S.Ct. 564, 568 , 21 L.Ed.2d 668 (1969).

. I do not question that the boycott-coercion-intimidation language might in some other context be pushed to the limits which the court approves. But these words are hardly so focused as to permit only the broadest, most general meaning. A more limited interpretation, besides comporting with the statutory structure and the legislative history, squares with the Supreme Court’s definition of a group boycott as “concerted refusals by traders to deal with other traders”, Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 , 212, 79 S.Ct. 705 , 709, 3 L.Ed.2d 741 (1959). See L. Sullivan, Antitrust § 90 at 257 (1976).

Furthermore, even reading the boycott exception to include the complained of behavior does not wholly solve the question of plaintiffs’ standing. If St. Paul is attempting to comer the malpractice market, the more obvious harm is to those companies that are being closed out. It can be argued that the higher prices to doctors are only an indirect consequence and that the physicians have not suffered the sort of direct injury necessary to bring suit. See Battle v. Liberty National Life Insurance Co., 493 F.2d 39, 49 (5th Cir. 1974), cert, denied, 419 U.S. 1110 , 95 S.Ct. 784 , 42 L.Ed.2d 807 (1975) (plaintiff must show himself to be in sector of economy in which violation threatens to break down competitive conditions). This sort of problem suggests that the doctors’ ostensible antitrust action is aimed less at protecting the free market system than at consumer protection goals left by Congress to state regulation. See generally SEC v. National Securities, Inc., 393 U.S. 453, 460 , 89 S.Ct. 564 , 21 L.Ed.2d 668 (1969).