Appeal from an order of the District Court for the Southern District of New York, Robert J. Ward, Judge, dismissing plaintiff's complaint under 42 U.S.C. § 1983 against the New York State Superintendent of Insurance for failing to state a claim on which relief can be granted. Affirmed.
Before Friendly, Mulligan and Gurfein, Circuit Judges.
This is an appeal from an order of the District Court for the Southern District of New York dismissing an action under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), for failing to state a claim on which relief can be granted. The case is an example of the totally meritless § 1983 action which makes needless demands upon state law departments and federal judges and, by uselessly adding to the flood of such suits, may obscure others which call for relief. Compare Mr. Justice Jackson's observation on frivolous petitions for habeas corpus in Brown v. Allen, 344 U.S. 443, 536-37, 73 S. Ct. 397, 97 L. Ed. 469 (1953) (concurring opinion).
Plaintiff does not have the use of his legs and drives his automobile with the aid of special operating devices installed therein. The complaint alleges that he had applied to Colonial Penn Insurance Company (Colonial Penn) for an automobile liability insurance rate quotation; that it had declined to make one because of Mr. Shaw's disability; and that defendant Harnett, New York State's Superintendent of Insurance, had refused to direct a hearing under provisions of the New York Insurance Law §§ 180, 183 and 186, which require insurers to establish rates that are reasonable and non-discriminatory and authorize enforcement of this by appropriate means.*fn1 Exhibits attached to the complaint show that, after receiving the request of Mr. Shaw's counsel, Jonathan A. Weiss, of Legal Services for the Elderly Poor, the Superintendent had made inquiry of the insurer and had received a detailed answer wherein Colonial Penn explained that, although it insured drivers suffering from less serious handicaps without any discrimination in rate, Mr. Shaw's condition "presented an additional risk which we considered to be unacceptable." Colonial Penn considered the case to be one not of discrimination but of an exercise of underwriting judgment, to which §§ 183 and 186 did not apply. The Department forwarded a copy of Colonial Penn's letter to plaintiff's counsel and apparently concurred in its legal conclusion. Further demands on the Department of Insurance by Mr. Weiss were unproductive.
The complaint said nothing about what Mr. Shaw had done to obtain liability insurance after Colonial Penn had declined to quote a rate and the Superintendent had refused to pursue the matter. When we inquired about this at argument, plaintiff's counsel told us that Mr. Shaw had obtained insurance under New York's assigned risk plan, Insurance Law § 63, at a premium presumably higher than those charged by Colonial Penn for accepted risks, and considerable time was spent in discussing the legal effect, if any, of this. Counsel later advised us by letter that she had been mistaken in her answer and that Mr. Shaw had obtained insurance through another company. For aught that appears, therefore, plaintiff has suffered no financial loss from Colonial Penn's refusal to quote him a rate.*fn2
The Department's conclusion that Colonial Penn's refusal to quote a rate to Mr. Shaw did not come within §§ 183 and 186 was clearly correct, as explained by Judge Ward in his opinion below. This was both because on their face §§ 183 and 186 deal with discrimination in premiums for existing policies and not with a refusal to write a policy.*fn3 and because, when the New York Legislature has wished to prohibit discriminatory refusal to issue a policy, it has known how to say so. The three provisions on this subject that it has enacted, which we cite in the margin,*fn4 manifestly do not cover Mr. Shaw's case.
This case thus does not require us to enter into the controversy, prompted by recent decisions such as Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); and Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), whether the liberty and property protected by the due process clause of the Fourteenth Amendment are measured by state law if not explicitly protected by the Constitution or have some minimum content independent of such law. See Tribe, American Constitutional Law, §§ 10-10 and -11 (1978); Monaghan, Of "Liberty" and "Property", 62 Cornell L.Rev. 405 (1977); Glennon, Constitutional Liberty and Property: Federal Common Law and Section 1983, 51 S.Cal.L.R. 355 (1978). The staunchest advocates of the latter view would not argue that one person has a liberty or property interest deriving from the Constitution itself in forcing another to contract with him against the latter's will. Any liberty interest in this case would be in protecting the latter person, here Colonial Penn, from being compelled to contract when it does not wish to do so.*fn5 Looking also at rights of liberty and property created by New York law we cannot remotely discern what the Superintendent has done to deprive Mr. Shaw of any of them. Dismissal of the complaint for failing to state a claim upon which relief can be granted was thus abundantly justified.*fn6