Duquesne Law Review


In Hartford Accident and Indemnity Co. v. Insurance Commissioner of Pennsylvania, the Pennsylvania Supreme Court held that automobile insurance rates based on the gender of the insured were "unfairly discriminatory" under Pennsylvania law. Though the court premised its holding on a finding that the Insurance Commissioner was correct in declaring gender-based insurance rates violative of the Pennsylvania Equal Rights Amendment, the author maintains that the court has committed a fundamental error in assuming that discrimination existed in the first place. The author rejects the notion that discrimination exists by the mere presence of sales of the same commodity to different buyers at different prices. Instead, the assertion is made that true discrimination exists only with "the sale of two or more similar goods [to different customers or in different markets] at prices which are in different ratios to marginal cost." In demanding that both men and women pay the same insurance rates, the author points out, the court has achieved precisely this form of discrimination: the same product (insurance) must now be supplied to different customers (gender groups with admittedly disparate safety records) with total disregard to the costs involved in supplying the product. The author thus concludes that the decision in Hartford will engender increased discrimination, and maintains that the court has merely created an irrational policy which treats unequals as equals in the name of equality of treatment.

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