Highmark and UPMC argued on Monday that a federal judge should throw out an antitrust case filed by insurance premium payers because even if they could prove collusion between the insurer and hospital system, the plaintiffs can’t win damages.

Royal Mile Co., a Whitehall property management company, Cole’s Wexford Hotel Inc. in Pine and an individual contend in the lawsuit that Highmark Inc. and UPMC agreed to keep competing insurers and health providers out of Western Pennsylvania.

Margaret Zwisler, an attorney for Highmark, said the only damages Royal Mile and other plaintiffs identify is that they paid the insurer too much in premium because of the conspiracy.

“The complaint is doomed for a very simple reason — the filed rate doctrine,” she said.

The Supreme Court repeatedly has ruled that ratepayers can’t succeed on an antitrust claim if the rates they target are filed with a government agency, she said. In this case, Highmark files its rates with the state Insurance Department.

Leon DeJulius, an attorney for UPMC, said that even if the plaintiffs could find another type of damages, their motion to dismiss the lawsuit should be based “on the complaint they filed, not the complaint they could have filed.”

Hamish Hume, an attorney for Royal Mile, said the complaint adequately details that Highmark and UPMC gouged customers by keeping out competitors. Hume said the filed rate doctrine doesn’t exempt them from consequences of that antitrust action.

If competing health care providers and competing insurers had made it into Western Pennsylvania’s market, “the cost of everything would have come down,” he said.
U.S. District Judge Joy Flowers Conti took the arguments under advisement.

She heard arguments on other legal points, including Highmark’s argument that it can’t be faulted if UPMC refused to contract with other insurers and UPMC’s argument that Royal Mile and the other plaintiffs can’t sue UPMC over high insurance costs because they buy insurance from Highmark, not UPMC.

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