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PREFERRED PHYSICIANS MUT. RISK RETENTION v. PATAKI

Nos. 1598, 2198, Dockets 94-9224, 94-9322.

85 F.3d 913 (1996)

PREFERRED PHYSICIANS MUTUAL RISK RETENTION GROUP and U.S. Physicians Mutual Risk Retention Group, Plaintiffs-Appellees, v. George E. PATAKI, Governor of the State of New York, Dr. Barbara De Buono, Commissioner of Health of the State of New York and Edward J. Muhl, Superintendent of Insurance of the State of New York, Defendants-Appellants, Physicians' Reciprocal Insurers, Medical Liability Mutual Insurance Company and Catholic Medical Center of Brooklyn & Queens, Inc., Defendants.

United States Court of Appeals, Second Circuit.

Decided May 30, 1996.

Attorney(s) appearing for the Case

Phyllis H. Weisberg, New York City (Kurzman Karelsen & Frank), for Plaintiffs-Appellees.

August L. Fietkau, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General of the State of New York and Frederic L. Lieberman, Assistant Attorney General, Jon G. Rothblatt, Associate Attorney, New York State Insurance Department, of counsel), for Defendants-Appellants.

Philip C. Olsson, Washington, D.C. (Olsson, Frank and Weeda, on the brief), for Amicus National Risk Retention Association.

Ellen Dollase Wilcox, Kansas City, Missouri, for Amicus National Association of Insurance Commissioners.

Before WINTER, LEVAL, and CALABRESI, Circuit Judges.

LEVAL, Circuit Judge:

Preferred Physicians Mutual Risk Retention Group ("Preferred"), plaintiff-appellee, is a risk retention group ("RRG") chartered under Missouri law, which offers insurance to doctors practicing in the State of New York.1 Preferred is not licensed by the State of New York's Commissioner of Insurance. It brought this action to challenge the lawfulness of New York's Excess Insurance Law ("EIL"),2

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