The application states:
"The Sixth Circuit's ruling that the WDCA does not involve the business of insurance is hardly a model of clarity, but it plainly rests on two central and essential elements. First, the court held that workers' compensation categorically is not insurance because, in the Sixth Circuit's view, workers' compensation does not involve a “contractual insurance relationship.” App., infra, 20a. Second, the court regarded as irrelevant Michigan's regulation of the nature of the workers' compensation benefits that must be provided by employers - including requirements imposed identically on employers who self-insure their workers' compensation risks and on those who purchase insurance of those risks - because Cassens self-insures and the court believed that self-insurance does not involve the business of insurance under the McCarran-Ferguson Act. Id. at 22a-24a. But both aspects of this analysis are wrong. They depart from this Court's precedent, will lead to inconsistent treatment of identically situated businesses, and will frustrate state policy regarding both insurance and workers' compensation."
"The issues presented here are ones of enormous practical importance: the court of appeals' holding reads significant limits into the McCarran-Ferguson Act, threatening to interfere with state insurance regulation and overturn the balance struck by States *31 in their workers' compensation systems. Most obviously, by categorically holding that state regulation of employers who self-insure their workers' compensation liability is outside the scope of the McCarran-Ferguson Act, the holding below invites a proliferation of RICO strike suits brought by aggrieved workers' compensation claimants. The attractiveness of RICO's remedies - including treble damages and attorney's fees, e.g., 18 U.S.C. § 1964(c) - and the extraordinarily burdensome nature of RICO discovery assures that an ever-increasing volume of workers' compensation litigation will find its way to federal court for decision under federal law. See, e.g., Cristin Schmitz, Employers Face RICO Claims For Workers Comp Denials, Inside Counsel (Feb. 1, 2009) (RICO permits “wide-open” discovery; plaintiffs' counsel states that if case goes to trial, “I am going to discover every single comp claim that ever existed in the past four years *** so it's going to open a real can of worms”). To the extent that settlements are not compelled in such suits, federal courts will have to pass on the merits of the underlying workers' compensation claims, creating the potential for overlapping (and possibly conflicting) adjudication of eligibility for workers' compensation benefits."
2009 WL 1265298 (U.S.) (Appellate Petition, Motion and Filing)
Supreme Court of the United States.
CASSENS TRANSPORT COMPANY, Crawford & Company, and Dr. Saul Margules, Petitioners,
Paul BROWN, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way, Respondents.
May 6, 2009.