The Ninth Circuit today asked the Supreme Court to answer several state insurance law questions that the federal appeals panel said are “novel” ones affecting “nearly 200,000 California policyholders.” The questions, in Coleman v. United Services Automobile Association, concern “the interaction between various California Insurance Code provisions implicating insurance coverage for military servicemembers in California.”
The questions are:
(1) Does section 1861.16(b) of the California Insurance Code prohibit insurers that provide insurance under Code section 11628(f)(1) from offering lower rates to servicemembers of higher rank, but higher rates to those of lower rank? If not, does section 11628(f)(1) nevertheless constitute an invalid legislative amendment under Amwest Surety Insurance Co. v. Wilson, 11 Cal. 4th 1243 (1995), or other California law? (2) Do sections 1860.1 and 1860.2 of the California Insurance Code establish a filed-rate doctrine that impliedly limits the ability of plaintiffs to recover under the business laws identified by section 1861.03? If so, is the standard distinct from the one articulated for public utilities regulation in Waters v. Pacific Telephone Co., 523 P.2d 1161, 1162 (Cal. 1974), and does it preclude liability even where a challenge does not center on the appropriateness of the rates themselves?” (Links added.)
The questions arise in an appeal from the dismissal of a policyholders’ action claiming unlawful denials of a higher good-driver discount in their auto policies. Included is the issue whether the Legislature improperly amended Proposition 103, the 1988 initiative that enacted the Insurance Rate Reduction and Reform Act.
The second group of questions relate to a broader issue about whether the Insurance Code precludes policyholders from suing in cases like this. The Ninth Circuit says the California Courts of Appeal are in conflict on the issue, the Second District, Division Three, pro-carrier decision in MacKay v. Superior Court (2010) 188 Cal.App.4th 1427 [“The filed rate doctrine provides that rates duly adopted by a regulatory agency are not subject to collateral attack in court”] disagreeing with the Second District, Division Four, opinion in Fogel v. Farmers Group, Inc. (2008) 160 Cal.App.4th 1403.
There was no petition for review in McKay, but the Supreme Court denied a bunch of depublication requests. The court denied review in Fogel.
The Ninth Circuit June 25 oral argument is here.
The federal court has not made many requests of late. This one is only the fourth in the last 32 months. The last ask was in January of this year.
The Supreme Court should let the Ninth Circuit know by early November — give or take — whether it will answer the questions. The Supreme Court historically says “yes” in most cases, but it went through a short picky stage — denying two of three requests over an eight-month stretch — a few years back. (See here and here.) In the long run, however, the court has been extremely accommodating, having granted 24 of the last 27 requests, dating back to July 2018. Before the most recent two rejections, the lone denial in the past eight years had been in October 2019.
Related:
Another Ninth Circuit case that didn’t quite make it to the California Supreme Court
Asked and answered: California Supreme Court responses to Ninth Circuit questions
The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions
Ninth Circuit dissenter wanted to send insurance law question to the Supreme Court
Ask not what the Supreme Court can do for the Ninth Circuit
Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions
The shadow docket . . . of California’s Supreme Court, part 2
