Vacated and remanded, 440 U.S. 942, 99 S.Ct. 1417, 59 L.Ed.2d 631 (1979)
How later courts described this case
- Vacated and remanded, 440 U.S. 942, 99 S.Ct. 1417, 59 L.Ed.2d 631 (1979)
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge,
dissenting:
The court, after rejecting the legal principles relied on by the District Court in granting summary judgment to appellees, analyzes the evidence itself and comes to the same result. While the temptation to avoid jury trials in antitrust cases is understandable, I would resist that temptation in this case since I believe the evidence of *277 fered by both sides on the motion for summary judgment was sufficient to have a jury resolve, on proper instructions, the issues raised relating to the business of insurance, conspiracy, and boycott. The Supreme Court has cautioned against affirming summary judgments in antitrust cases by drawing inferences from the evidence that should have been reserved for the jury. See, e. g., Poller v. CBS, Inc., 368 U.S. 464, 473 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962). This caution applies, in my judgment, with particular emphasis where the District Court has granted summary judgment after applying the wrong legal principles to its appraisal of the evidence.
Most of the evidence offered by both sides on appellees’ motion for summary judgment is fairly outlined in the court’s opinion. On that evidence a jury could reasonably have found, as appellants suggest, that the conspiracy consisted of an agreement among appellee automobile insurers to gain an advantage over their competitors by limiting appellees’ cost of car repairs through boycott of car repairmen who refuse to make car repairs at the dictated prices.
In addition, other evidence fairly shows that the automobile repair industry is one marked by competition as to both price and quality of service. It would also support a finding that insurers were concerned that poor service caused by paying too low a rate for repairs would lead to dissatisfaction among insureds. Accordingly, it is not unreasonable to suggest, as appellants have done, that a jury could conclude that concerted action was needed if appellee insurance companies were to achieve both low cost repairs and adequate service. The record would also support a finding that appel-lee insurance companies sought to attain that objective by communicating among themselves on such matters as the most effective use of the insurers’ drive-in claim service where claims would be adjusted and checks drawn for presentation to “captive” repair shops. In addition, there is evidence that some insurers issued two-party settlement checks naming as payees the insured and a “captive” body shop. Obviously the effect of this activity was to steer customers away from disfavored shops and would, in my opinion, justify a finding of boycott, especially since such steering would seem an integral part of effectuating the insurers’ plan to direct volume business to their “captive” shops, thereby putting price pressure on independents. 1
By sketching the evidence favorable to appellants, I do not mean to suggest that a reading of boycott or conspiracy in restraint of trade is inevitable on the evidence in this case. Certainly the majority has a point in its observation that persons acting independently might have an incentive to adopt some of the elements of the claims adjustment scheme adopted by the appellee insurers. 2 My position, however, is simply that it is not the job of this court to put the best face possible on the evidence from appel-lees’ point of view. Under the law, on appellees’ motion for summary judgment precisely the opposite approach is required. E. g., United States v. Diebold, Inc., 369 U.S. 654, 655 , 82 S.Ct. 993 , 8 L.Ed.2d 176 (1962). Under the proper standard, I submit, appellants tendered sufficient evidence to go to the jury.
I respectfully dissent.
. While I do not concede the need to reach the question of the scope of the McCarran-Fergu-son Act’s boycott exception, I do agree with Part III of the majority opinion insofar as it rejects the narrow view of that exception adopted by the Fifth and Ninth Circuits.
. I find unpersuasive the majority’s suggestion that appellees were not trying to obtain a competitive advantage, but were just trying to keep the price of car repairs, and thus insurance premiums, down. Even though the object is beneficial, insurers may not seek to achieve it by conspiring to tamper with the economics of the car repair industry, or the insurance industry itself for that matter, by boycott. 15 U.S.C. § 1013 (b) (1970).