Commonwealth v. Pennsylvania Coal Mining Ass'n

Concurring and Dissenting Opinion by

Judge Crumlish, Jr. :

I am obliged to express my views on the procedure utilized for fixing rates for coal mine occupational disease insurance in general and, in particular, the calculation of those rates for surface coal mine operators.

The Court today has given its approval to the action of the Insurance Commissioner (Commissioner) who, upon recommendation of the Coal Mine Compensation Rating Bureau (Bureau), has approved a schedule of insurance premiums payable by surface coal mine operators doing business in Pennsylvania. In giving such approval, the Court does not deem signifi*367cant the fact that the major input to the rate-structuring decision is from the Bureau, which consists entirely of the insurers themselves and other industry-related persons such as professional actuaries.

It is well settled that we should defer to the expertise of the Bureau and the Commissioner in the area of rate making since it is they who are charged by statute with the rate-making responsibility. However, this general principle does not, in my view, authorize the setting of premium rates without some meaningful input from the affected surface coal mine operators. Although the Commissioner is authorized to receive testimony from the affected insureds, his decision to do so is discretionary as is his obligation to consider such testimony in reaching his decision. Therefore, the Court should not be hasty in resorting to the rubric of the substantial evidence rule such that judicial review becomes tantamount to a rubber-stamp process of approval of the Commissioner’s action.

Bather, we should carefully scrutinze the process underlying the Commissioner’s action. In so doing, we should assure ourselves that every affected insured was afforded the maximum possible opportunity to be heard. In addition, the Commissioner and his staff must employ great restraint in exercising discretion in rate making, especially where, as here, the empirical data has been supplied by the insurer-dominated Bureau and where the statutory standard1 governing the Commissioner’s exercise of discretion is so broad that it amounts to no standard at all.

Having examined the record in this case, I would agree with the Court that the Commissioner erred in adopting the Bureau’s assumption of a 75/25 split between State and Federal black lung claims. There*368fore, I would concur with the Court insofar as it has directed a remand on this issue. However, I would also remand for a re-determination of the percentage of the deep mine premium rates at which the rates for surface mine operators should be fixed. The Commissioner approved the Bureau’s estimate that the surface mine rates should be 75% of the rates paid by deep mine operators. Although all persons concerned seem to acknowledge that the surface mine rates should be less than the deep mine rates since surface mining has a lower black lung hazard potential than deep mining, I am of the view that the Commissioner disregarded evidence which could have justified a lower percentage. Instead, the Commissioner adopted the Bureau’s projections which were unsubstantiated by actual experience. In view of the great disparity of hazard between surface and deep mining, I would also remand on this issue.

Judge Kramer joins in this concurring and dissenting opinion.

Section 654 of The Insurance Company Law of 1921, Act of May 17, 1921, P.L. 682, as amended, 40 P.S. §814, defines the standard as “equitable and impartial.”