Personal Injury Resources

The St. Paul Fire & Marine Insurance Company v. Barry case on medical malpractice insurance deals with what information sole-source insurance companies may request.

The exemption has been controversial, and Lott is reviving an old debate. The issue is not (and this may disappoint Mr. Lott) whether nice distinctions between flood damage and storm damage after a hurricane reflect positively on the insurance industry. The problem is that much of the insurance industry is not effectively regulated. The exemption from federal antitrust laws goes much further than the state-action doctrine and ties only to the existence of a state statute, without requiring actual state regulation or effective oversight. This low standard (established in 1958 by the Supreme Court in FTC v. National Casualty Co.) means that purely private collusion that harms competition remains unchecked either by real state regulation and oversight or the federal antitrust laws. The “boycott, coercion or intimitadation” clause provides little or no protection, as it is accepted that insurances may coordinate in the development of forms—Section 1 of the Sherman Act does not apply, for example, if insurance companies agree among themselves to exclude flood damage from home-owners insurance policies. (The Supreme Court did consider it a boycott when three insurance companies agreed no longer to offer medical malpractice insurance at all, leaving a fourth insurance company in a position to dictate terms to the insureds. St. Paul Fire & Marine Ins. Co. v. Barry.) And who can seriously say that the modern insurance industry isn’t engaged in interstate commerce?

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