Laboy v. Rodriguez Gonzalez ( 1995 )

USCA1 Opinion

          November 21, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 92-2363

        No. 95-1531

                            SANTOS HUERTAS LABOY, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                         DR. LUIS RODRIGUEZ GONZALEZ, ET AL.,



                                Defendants, Appellees.



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                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
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                                        Before



                                 Lynch, Circuit Judge,
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                             Watson, Senior Judge,* and
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                           Campbell, Senior Circuit Judge.
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            Rafael A. Oliveras Lopez de Victoria on brief for appellants.
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            Gladys E. Guemarez and Carlos A. Ramos on brief for appellees.
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        * Of the United States Court of International Trade, sitting by

        designation.





























                      Per Curiam.  Appellant Santos Huertas Laboy brought
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            a  malpractice action in the United States District Court for



            the District  of Puerto Rico against  the physician allegedly



            responsible  for  his  mother's  death  and  the  physician's



            insurance  company.    The  insurance  company  was  declared



            insolvent and its responsibilities  were assumed by appellee,



            the Puerto Rico Miscellaneous Insurance Guaranty Association.



            The district  court held  that appellant's claim  against the



            insurance  company  was  time  barred  because the  insurance



            company  was  not notified  of  the claim  within  the policy



            period.  The physician's insurance policy was a "claims-made"



            policy which only provides coverage for claims brought to the



            attention of  the insurer during the duration  of the policy.



            On appeal,  appellant argues  that the  claims-made insurance



            policy violates  the Fifth  and Fourteenth Amendments  of the



            United States  Constitution  and their  counterparts  in  the



            Commonwealth of Puerto Rico Constitution.



                      Because appellant has no fundamental right to bring



            a claim against the physician's insurance company and because



            the  claims-made policy  at issue  did  not impair  any other



            fundamental   right   and   did    not   invoke   a   suspect



            classification,  we  apply  a  rational   basis  standard  of



            scrutiny.1  See  LCM Enters.  v. Town of  Dartmouth, 14  F.3d
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            1.  We need not decide whether there was the necessary "state

            action" to underpin appellant's Constitutional challenge.

            Assuming arguendo there was, we nonetheless affirm.
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            675, 679 (1st Cir.  1994).  The claims-made  insurance policy



            will  therefore withstand Constitutional  challenge if  it is



            rationally related to a legitimate state interest and neither



            arbitrary, unreasonable, nor irrational.  City of Cleburne v.
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            Cleburne Living Ctr., Inc.,  473 U.S. 432, 440 (1985).   Both
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            the  Supreme Court of Puerto  Rico and this  court have found



            that claims-made policies serve  public interests.  Torres v.
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            Estado  Libre  Asociado  de  Puerto Rico,  92  JTS  68 (1992)
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            (holding that  claims-made  policies do  not  violate  public



            policy);  DiLuglio v. New England Ins. Co., 959 F.2d 355, 358
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            (1st Cir. 1992)  ("The elimination of  'claims-made' coverage



            would   exacerbate  the   existing  crisis   in  professional



            liability insurance coverage,  or force significantly  higher



            premiums for assuming the increased risk").  We hold that the



            claims-made  policy  satisfies  rational basis  scrutiny  and



            therefore   affirm  the   district   court's   dismissal   of



            appellant's  claim  against  the  Puerto  Rico  Miscellaneous



            Insurance Guaranty Association.



                      We  have considered appellant's other arguments and



            find them to be similarly without merit.





                      Affirmed.  Costs to Appellee.
Affirmed.  Costs to Appellee
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