
USCA1 Opinion

	




          November 21, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2363        No. 95-1531                            SANTOS HUERTAS LABOY, ET AL.,                               Plaintiffs, Appellants,                                          v.                         DR. LUIS RODRIGUEZ GONZALEZ, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                             Watson, Senior Judge,* and                                      ____________                           Campbell, Senior Circuit Judge.                                     ____________________                                 ____________________            Rafael A. Oliveras Lopez de Victoria on brief for appellants.            ____________________________________            Gladys E. Guemarez and Carlos A. Ramos on brief for appellees.            __________________     _______________                                 ____________________                                 ____________________                                    ____________________        * Of the United States Court of International Trade, sitting by        designation.                      Per Curiam.  Appellant Santos Huertas Laboy brought                      __________            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                        ___  ___________     __________________                                            ____________________            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.                     ________                                         -2-            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.                                                      ________________            Cleburne Living Ctr., Inc.,  473 U.S. 432, 440 (1985).   Both            __________________________            the  Supreme Court of Puerto  Rico and this  court have found            that claims-made policies serve  public interests.  Torres v.                                                                ______            Estado  Libre  Asociado  de  Puerto Rico,  92  JTS  68 (1992)            ________________________________________            (holding that  claims-made  policies do  not  violate  public            policy);  DiLuglio v. New England Ins. Co., 959 F.2d 355, 358                      ________    ____________________            (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                      ____________________________                                         -3-
