dissenting. The majority holds that the test for a change (increase) in subscriber rates under R. C. 1739.051 is satisfying the Superintendent of Insurance that such increase is “lawful, fair and reasonable.” In this case, the rate increase was denied because the superintendent determined that “Blue Cross had not acted to *82control hospital costs” and “that there has been an unjustifiable rise in the per diem costs of hospital rooms.” The superintendent further found that the one hundred per cent formulae acted as a spur to costs and that Blue Cross was aware of this incongruous arrangement. The majority opinion implies that while Blue Cross’ failure to attempt to control rising hospital costs may be relevant in the granting of authority or license to a hospital service association under R. C. 1739.05, its connection in the present circumstance “is not apparent.” It seems clear enough to this writer that where the evidence discloses that the applicant is making no effort to stem the tide of rampaging costs but by their admission is condoning them by the ‘ ‘ one hundred per cent reimbursement formulae” then their application to further increase subscribers rates is neither “fair” nor “reasonable” and is “unlawful.”
R. C. Chapter 1739 gives the Superintendent of Insurance broad regulatory powers over the subscription contracts between Blue Cross and its subscribers — the general public. It is the duty of the Superintendent of Insurance to protect the public interest because Blue Cross operates under a government franchise in a semi-monopolistic industry. When, other than in a rate making proceeding can the public interest be better protected?
Traditionally, in Ohio, the office of the Superintendent of Insurance has been treated as a “rate increase filing clerk” with little or no discretion but to act as a rubber stamp. It is truly unfortunate that, when a superintendent with fortitude comes along, his decision, sounding clearly in the public interest, is blithely discarded.
It is encouraging to see in the footnote of the majority opinion that the Insurance Department has adopted Rule IN-1739-01 which became effective during the pendency of this action. This rule contains some sound economical standards in the field of cost constraints that will slow the spiralling hospital expenses.