N.D. Cal. on Insurance Safe Harbor

New on westlaw (but not for free on the web): In Neily v. California Public Employees' Retirement System, 2004 WL 3030069 (N.D. Cal. Dec. 21, 2004), the District Court for the Northern District of California ruled that the ADA's insurance safe harbor warranted summary judgment for the defendant who refused to provide long-term care insurance to two plaintiffs, one with post-polio syndrome and the other with diabetes. The court, per Judge Whyte, ruled that the defendant had made its decision based on the risks attendant to the *extent* of the plaintiffs' disabilities, not on the mere *fact* of those disabilities. Such risk-based decisions, the court ruled, are exactly what the safe harbor allows insurers to make (even though the defendants relied on no actuarial data, and seemed not to account for other, non-disability-related risk factors in their underwriting decisions).