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Insurers File Motion to Dismiss Antitrust Suit Brought by New York Glass Shop
12/15/2011

In a New York antitrust case that has many parallels to suits brought by body shops against insurers, the defendants (insurers and third-party administrators) have filed a motion to dismiss, claiming that the plaintiff’s antitrust claims fail because he “does not allege antitrust injury,” and that the injury he does claim is “lower prices.”

“Lower prices are, of course, good for consumers and are the consequences of competition, not the lack thereof,” the defendants wrote.

The suit was brought by David Harner, owner of Auto Glass of Westchester Windshield Doctor in Westchester, N.Y., and alleges failure to pay assigned claims, restraint of trade, unfair business practices and tortious interference.

The defendants argue that Harner’s antitrust claim fails to prove how market-wide competition is affected, and “this fundamental defect cannot be cured because plaintiff’s real complaint is that there is too much – not too little – competition, which may erode his profits but benefits consumers and other repairers that price competitively.”

“He seeks to protect his profit margins and objects to lower pricing that benefits consumers,” the defendants added.

In regard to short pays, the insurers argue that New York Insurance Law says that if the insured selects a repair facility other than the one recommended by the insurer, the insurer is not responsible for repair costs over the cost the recommended facility would have charged.

The original complaint filed by Harner last May alleges that “all the defendants’ actions, individually, combined, and in concert, are unreasonable under the circumstances, [and] have denied [him] the right to earn income, his ability to create a sound business reputation, and have denied him the right to continue to operate his business without interference, in a free, unfettered, and profitable manner, within the framework of the law.”



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