$10M question at issue in Blues sale

BANGOR – Did the Maine superintendent of insurance twice count a $10 million entry, and if he did was the act a violation of law, when he valued Blue Cross Blue Shield of Maine at $81.69 million in May 2000?

This was one of several questions posed to the Maine Supreme Judicial Law Court sitting in Bangor on Thursday. In a complex appeal case, Consumers for Affordable Health Care claims Superintendent of Insurance Al Iuppa determined Blue Cross Blue Shield was worth $20 million less than an independent appraisal by the firm of Houlihan, Loukey, Howard and Zukin in July 1999.

Reducing the value of the Blues, as Blue Cross and Blue Shield of Maine is sometimes called, resulted in its being bought by Anthem Insurance Co. for $81.5 million instead of the $120 million that Anthem had agreed to pay in 1999.

The reduced sale of the Blues had the net effect of reducing the amount of money earmarked for a trust for underinsured and uninsured Mainers.

Peppering attorneys with questions, the seven-member Law Court appeared to have trouble deciding its role in the matter, especially if the concern merely amounted to a mathematical miscalculation. Chief Justice Leigh I. Saufley remarked that the Legislature has “set it up so that court oversight is circumspect” in these matters.

“We have to be very restrained” in insurance-impropriety rulings, Saufley said.

But verbal restraint went out the window on occasion as the justices analyzed the case.

“So the superintendent’s decision wasn’t quite right but it’s close enough for government work?” asked Justice Donald Alexander, prompting chuckles in the half-filled courtroom. Alexander questioned defense attorney Peter Brann, who contended the appeal, “by any reasonable standard,” was without merit. At another point, Alexander asked if Arthur Andersen had worked with the reported $10 million miscalculation. In fact, the beleaguered financial firm played a role in the Blues sale to Anthem.

Consumers for Affordable Health Care, through lawyer Patrick Ende, argued that while reviewing courts are required to show deference to an administrative agency’s decision, such deference does not permit the agency to “count wrong.”

At issue in the Blue Cross Blue Shield matter is $10 million that was described as part of an $18.1 million financial loss to the company in 1999. Consumers for Affordable Healthcare claimed the $10 million, set aside for Y2K expenses at the turn of the century, was accounted for in the independent evaluation in July 1999. That valuation by Joulihan, Loukey, Howard and Sukin valued the Blues at $102.5 million.

“The superintendent then double-counted those same expenses when he reduced the value by $10 million,” Ende said.

The case was one of six heard by the group sitting at the Penobscot County Superior Court. The Supreme Judicial Court justices are Alexander, Saufley, Howard H. Dana Jr., Susan Calkins and Jon D. Levy, all of Portland; Robert W. Clifford of Auburn, and Paul L. Rudman of Bangor.