Courtroom Case

Defending Right to Challenge Insurance Company Practices in Court (MacKay v. 21st Century)

Court of Appeal Opinion Seeks to Overturn Proposition 103 Provision Guaranteeing Citizens the Right to Challenge Illegal Practices by Insurance Companies.

Consumer Watchdog and more than a dozen civil and consumer rights organizations have urged the California Supreme Court to depublish the Court of Appeal Opinion in MacKay V. Superior Court (MacKay v. 21st Century).  Consumer Watchdog also asked the Court to review the case.  In addition to links to the letters Consumer Watchdog submitted in this case, this page is a resource for any groups interested in submitting their own letter to the Supreme Court.

As Consumer Watchdog explained in our request for depublication of the case:

According to the opinion, an insurance company that engages in an underwriting practice explicitly forbidden by the voters cannot be sued under the [California Unfair Competition Law] so long as the company can claim that the Insurance Commissioner or employees of the California Department of Insurance (DOI) approved a regulatory filing submitted by that company, whether or not the practice was properly disclosed to the Commissioner, the agency staff and the public in that filing, and notwithstanding the Commissioner’s explicit disclaimer to the contrary. The opinion even appears to confer immunity from a UCL action for illegal activity that occurred after the agency notified the insurer that its practices were objectionable and promulgated regulations to prevent subterfuge by the industry.

The opinion would permit insurance companies to evade judicial accountability for unlawful discrimination based on race, sex, religion, gender preference or disability.

The decision conflicts with the plain language of Proposition 103  (§ 1861 et seq.), long-settled, on-point precedent of [The California Supreme] Court, other appellate opinions, and the consistent position of the Commissioner over the preceding twenty-two years. In short, the decision resurrects the statutory immunity scheme that California voters rejected when they passed Proposition 103 twenty-two years ago.

Also submitting letters to the Supreme Court about this opinion were the following civil rights, consumer protection and public interest organizations:

ACLU of Northern California
ACLU of Southern California
ACLU of San Diego and Imperial Counties
Consumer Action
Consumer Federation of California
Consumers for Auto Reliability and Safety
Consumers Union of United States (the non-profit publisher of Consumer Reports)
Disability Rights Education and Defense Fund (DREDF)
Equal Justice Society
Impact Fund
Lambda Legal
MALDEF
Public Advocates
Public Counsel
SCLC-Los Angeles
United Policyholders