

November 21, 1995     [NOT FOR PUBLICATION]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-
