7 F.

3d 349
62 USLW 2242, 17 Employee Benefits Cas.
1797, 4 NDLR P 252,
Pens. Plan Guide P 23887T

PAS
v.
TRAVELERS INSURANCE COMPANY, Petitioner
and
J.T. Baker, Inc. and Richardson-Vicks, Inc.
Honorable John C. Lifland, United States District Judge for
the District of New Jersey, Nominal Respondent.
PAS
v.
TRAVELERS INSURANCE COMPANY; J.T. Baker, Inc. and
Richardson-Vicks, Inc.
Travelers Insurance Company, Appellant.
Nos. 92-5510, 92-5512.

United States Court of Appeals,

Third Circuit.
Argued May 19, 1993.
Decided Oct. 14, 1993.

Zulima V. Farber, Public Advocate and William F. Culleton, Jr. (argued),

New Jersey Dept. of the Public Advocate, Camden, NJ, for PAS,
respondent/appellee.
Susan K. Hoffman (argued), Andrew R. Rogoff and Andrew E. Kantra,
Pepper, Hamilton & Scheetz, Philadelphia, PA, and Francis X. Ryan,
Green, Lundgren & Ryan, Haddonfield, NJ, for Travelers Ins. Co.,
petitioner/appellant.
John H. Widman (argued), McAleese, McGoldrick & Susanin, King of
Prussia, PA, for J.T. Baker, Inc. and Richardson-Vicks, Inc.
Before: STAPLETON, ALITO and SEITZ, Circuit Judges.OPINION OF

THE COURT
SEITZ, Circuit Judge.

I. BACKGROUND
1

The historical facts in this case are undisputed. Plaintiff, a woman who uses the
pseudonym "PAS," was hired by J.T. Baker, Inc., a subsidiary of RichardsonVicks, Inc. (collectively "Baker") in 1987. Approximately six months after she
was hired, plaintiff became disabled with bipolar disorder,1 a disability which is
apparently continuing. Plaintiff initially received disability benefits from a
health insurance plan paid for by Baker and supplied through the Travelers
Insurance Company ("Travelers"). Subsequently, Travelers terminated
plaintiff's benefits under a policy provision that generally limits coverage for
mental illnesses to two years.

Plaintiff brought a four-count action in the Superior Court of New Jersey

seeking, inter alia, to have the policy provision under which her benefits were
terminated declared void as contrary to New Jersey law and to have Travelers
ordered to restore her coverage. Travelers and Baker removed the action to
federal district court because it contained claims that they were undisputedly
entitled to have resolved in a federal forum under the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. 1001-1461.

Plaintiff concedes that Travelers and Baker are entitled to a federal forum for
resolution of three of her four claims. However, plaintiff moved for a remand to
state court of her claim that the termination of her insurance coverage violated
two New Jersey statutes. See N.J.Stat.Ann. 17:29B-4(7)(b) (West 1985);
N.J.Stat.Ann. 17B:30-12(d) (West 1985). Baker and Travelers opposed
plaintiff's request for remand, arguing that remand was unwarranted because
the two New Jersey statutes were preempted by ERISA.

In addressing plaintiff's motion for remand, the district court first concluded
that the New Jersey statutes were not preempted by ERISA. Next, the court
reasoned that, because it had only supplemental jurisdiction over the state law
claim, it was free to exercise its discretion under 28 U.S.C. 1367(c)(1) when
deciding whether to remand that claim to state court. It thereupon concluded
that, because the claim involved a "novel and complex issue of state law," it
should be remanded to the Superior Court of New Jersey. (J.A. at 113).

Subsequently, the district court concluded that the state court action "[might]

Subsequently, the district court concluded that the state court action "[might]
become dispositive of the [federal] litigation...." (J.A. at 127). Accordingly, it
ordered that the federal action be administratively terminated "without
prejudice to the right of the parties to reopen the proceedings at any time, for
good cause shown...." (J.A. at 127).
Travelers filed a motion for reconsideration of the district court's order of
remand. The district court denied that motion and Travelers thereupon filed
both a notice of appeal and petition for a writ of mandamus.2 This court ordered
that Travelers' appeal and petition for mandamus be consolidated for
disposition.

II. JURISDICTION
A. Bar of 28 U.S.C. 1447(d)
7

We must first consider whether we have jurisdiction to entertain the appeal or

the petition seeking a writ of mandamus directing the district court to vacate its
remand order. The remanded claim is based on state law. The first jurisdictional
issue is created by 28 U.S.C. 1447(d), which provides:

8 An order remanding a case to the State court from which it was removed is not
(d)
reviewable on appeal or otherwise, except that an order remanding a case to the
State court from which it was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise. [Section 1443 is not involved.]
9

In Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46

L.Ed.2d 542 (1976), the Supreme Court interpreted the limitations in
subsection 1447(d) to be restricted to cases remanded under 1447(c). Cases
may be remanded under 1447(c) for (1) lack of district court subject matter
jurisdiction or (2) a defect in the removal procedure. Clearly, the remand order
here was not based on either such ground. Rather, the district court, in the
exercise of its admitted discretion, remanded the claim under its supplemental
jurisdiction found in 28 U.S.C. 1367(c)(1): the claim raised a novel or
complex issue of state law. Thus, the statutory bar to appellate review does not
apply here. See Aliota v. Graham, 984 F.2d 1350, 1354-55 (3d Cir.1993); 1A
Moore's Federal Practice p 0.169[2.-1]. The Eleventh Circuit has similarly
concluded that remand orders premised on the district court's discretion under
1367(c) are reviewable under the Thermtron logic. In re Surinam Airways
Holding Co., 974 F.2d 1255, 1257 (11th Cir.1992).
B. Review by Direct Appeal or Mandamus

10

Travelers filed an appeal from the district court's order remanding plaintiff's
claim to state court and a petition for a writ of mandamus. "A court of appeals
may not 'engage in extraordinary review by mandamus "in aid of [its]
jurisdiction" when it can exercise the same review by a contemporaneous
ordinary appeal.' " United States v. Santtini, 963 F.2d 585, 590 (3d Cir.1992)
(quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 8 n. 6, 103 S.Ct. 927, 933 n. 6, 74 L.Ed.2d 765 (1983) (quoting 28 U.S.C.
1651)). "Therefore, we must first determine whether an appeal is available to
[Travelers] at this time and if not, whether a writ ... may issue on these facts."
Id.

11

All parties (plaintiff, Baker and Travelers) agree that we have jurisdiction over
Travelers' appeal. Nevertheless, we have a "special obligation" to decide the
jurisdictional question for ourselves "even though the parties are prepared to
concede it." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106
S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986); see Lewis v. International Bhd. of
Teamsters, Local Union No. 771, 826 F.2d 1310, 1312 (3d Cir.1987). We turn
to that jurisdictional analysis.

12

Early Supreme Court precedent provided that mandamus was the only avenue
for review of a federal court order remanding a claim to a state court. See
Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L.Ed. 103 (1875). In
Wiswall, the Court stated: "The order of the Circuit Court remanding the cause
to the State court is not a 'final judgment' in the action, but a refusal to hear and
decide. The remedy in such a case is by mandamus to compel action, and not by
a writ of error to review what has been done." Id.

13

Travelers concedes that the district court's remand order is not a final order in
the traditional sense. However, Travelers argues that the order is appealable
under the collateral order doctrine which developed after Wiswall. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528
(1949) (establishing collateral order doctrine).3 Nevertheless, years after the
collateral order doctrine was first established, the Supreme Court cited Wiswall
for the proposition that "an order remanding a removed action does not
represent a final judgment reviewable by appeal." Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 594, 46 L.Ed.2d 542
(1976). Thus, Thermtron indicates that the development of the collateral order
doctrine did not nullify Wiswall's holding that review in such cases should be
accomplished by mandamus.

14

We are aware that other courts of appeals have held that review in a case such
as this should proceed by direct appeal rather than by mandamus. See, e.g.,

McDermott Int'l, Inc. v. Lloyds Underwriters, 944 F.2d 1199, 1203 n. 5 (5th
Cir.1991). Nevertheless, we agree with those courts that have held that, when a
district court exercises its discretion to remand claims to a state court, review is
available, if at all, only through a mandamus proceeding. See, e.g.,
Westinghouse Credit Corp. v. Thompson, 987 F.2d 682, 684 (10th Cir.1993)
("Review of the remand of the pendent claims ... must be by mandamus."); In
re Surinam Airways Holding Co., 974 F.2d 1255, 1257 (11th Cir.1992) ("[A]n
order expressly remanding pursuant to 1367(c) is reviewable. As in
Thermtron, the appropriate basis for reviewing such an order is on petition for
writ of mandamus." (citation omitted)); Corcoran v. Ardra Ins. Co., 842 F.2d
31, 35 (2d Cir.1988) ("Thermtron's explicit ruling that review must be by
mandamus rather than appeal has recently been reinforced [by the Supreme
Court].").
15

We conclude that the proper method for review is by petition for writ of
mandamus. Accordingly, we shall dismiss Travelers' appeal. We next consider
whether Travelers has satisfied the requirements for the issuance of the writ.

III. AVAILABILITY OF MANDAMUS

A. Requirements for Mandamus
16

Mandamus is authorized by the All Writs Act, 28 U.S.C. 1651(a), which

provides:

17 Supreme Court and all courts established by Act of Congress may issue all writs
The
necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law.
18

Use of the writ is limited to extraordinary cases because of "the undesirability

of making a district court judge a litigant, and the inefficiency of piecemeal
appellate litigation." Mallard v. United States District Court, 490 U.S. 296, 309,
109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). "The traditional use of the writ
... has been to confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do so."
Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed.
1185 (1943). Thus, a writ is not available unless the district court has
committed a " 'clear abuse of discretion' " or engaged in "conduct amounting to
'usurpation of [the judicial] power.' " Mallard, 490 U.S. at 309, 109 S.Ct. at
1822 (quoting respectively Bankers Life & Casualty Co. v. Holland, 346 U.S.
379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) and DeBeers Consolidated
Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed.

1566 (1945)).
19

The Supreme Court imposes two other requirements before the writ may issue.
First, "petitioners must show that they lack adequate alternative means to obtain
the relief they seek." Mallard, 490 U.S. at 309, 109 S.Ct. at 1822. Second,
petitioners must "carry 'the burden of showing that [their] right to issuance of
the writ is "clear and indisputable." ' " Id. (quoting Bankers Life, 346 U.S. at
384, 74 S.Ct. at 148 (quoting United States v. Duell, 172 U.S. 576, 582, 19
S.Ct. 286, 287, 43 L.Ed. 559 (1899))). We must determine whether these
requirement are satisfied here. 4

20

Travelers contends that it has a clear and indisputable right to the issuance of
the writ because the district court erroneously concluded that the New Jersey
statutes were not preempted by ERISA. To address this contention, we turn to
an examination of the merits of the ERISA preemption issue.

B. ERISA Preemption
21

At the outset, we note that "[t]he question whether a certain state action is
preempted by federal law is one of congressional intent. The purpose of
Congress is the ultimate touchstone." Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987). This fundamental principle
of preemption jurisprudence controls our analysis.

22

In general, ERISA "supersede[s] any and all State laws" that "relate to" ERISAcovered benefit plans. 29 U.S.C. 1144(a). It is undisputed that the plan which
provided plaintiff's benefits is an ERISA-covered benefit plan and it is
similarly undisputed that the New Jersey statutes in question relate to that plan.
However, plaintiff contends that these statutes fall within a statutorily-carved
exception to ERISA's broad preemption language.

23

In what legal practitioners refer to as ERISA's "saving clause," ERISA saves

from federal preemption "any law of any State which regulates insurance." 29
U.S.C. 1144(b)(2)(A). To determine whether the New Jersey statutes relied
upon by plaintiff "regulate insurance" within the meaning of ERISA's saving
clause, we will apply the framework established in two decisions of the
Supreme Court. See Pilot, 481 U.S. 41, 107 S.Ct. 1549; Metropolitan Life Ins.
Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985).

24

In determining whether a state law regulates insurance, we employ a two-part

analysis.

25 we [take] what guidance [is] available from a "common-sense view" of the

First,
language of the saving clause itself. Second, we [make] use of the case law
interpreting the phrase "business of insurance" under the McCarran-Ferguson Act,
15 U.S.C. 1011 et seq., in interpreting the saving clause.
26

Pilot, 481 U.S. at 48, 107 S.Ct. at 1553 (citing Metropolitan Life ). We turn to
an application of this analytical framework to the facts of this case.

1. Common Sense Understanding of "Regulates Insurance"

27
28

Our first task is to determine whether "a common-sense understanding of the

phrase 'regulates insurance' ... support[s] the argument that the [New Jersey
statutes] ... fall[ ] under the saving clause." Pilot, 481 U.S. at 50, 107 S.Ct. at
1554. To make this determination we must consider the language of the state
statutes.

29

The New Jersey statute primarily relied upon by plaintiff provides:

30 person shall make or permit any unfair discrimination between individuals of the
No
same class and of essentially the same hazard in the amount of premium, policy fees,
or rates charged for any policy or contract of health insurance or in the benefits
payable thereunder, or any of the terms or conditions of such policy or contract, or in
any other manner whatever.
N.J.Stat.Ann. 17B:30-12(d) (West 1985).5
31

In Pilot, the Supreme Court suggested that, under a common sense approach, a
law regulates insurance if it "ha[s] an impact on the insurance industry [and is]
specifically directed toward that industry." 481 U.S. at 50. By its very terms,
Section 17B:30-12(d) is specifically aimed at the insurance industry. In
addition, it necessarily has an impact on that industry. Thus, a common sense
interpretation of the phrase "regulates insurance" tends to support the
conclusion that Section 17B:30-12(d) falls under the saving clause. We turn to
the second part of the framework, an analysis of federal caselaw applying the
McCarran-Ferguson Act.

2. Caselaw Under the McCarran-Ferguson Act

32

Our second task is to determine whether Section 17B:30-12(d) regulates the

"business of insurance" as that phrase has been interpreted in caselaw applying
the McCarran-Ferguson Act, 15 U.S.C. 1011-1015. The Supreme Court has

explained that "[t]hree criteria [are] used to determine whether a practice falls
under the 'business of insurance' for purposes of the McCarran-Ferguson Act."
Pilot, 481 U.S. at 48-49, 107 S.Ct. at 1553.
33
[F]irst,
whether the practice has the effect of transferring or spreading a
policyholder's risk; second, whether the practice is an integral part of the policy
relationship between the insurer and the insured; and third, whether the practice is
limited to entities within the insurance industry.
34

Hartford Fire Ins. Co. v. California, --- U.S. ----, ----, 113 S.Ct. 2891, 2901, 125
L.Ed.2d 612 (U.S. June 28, 1993) (quoting Union Labor Life Ins. Co. v. Pireno,
458 U.S. 119, 129, 102 S.Ct. 3002, 3009, 73 L.Ed.2d 647 (1982)).

35

Travelers does not dispute that Section 17B:30-12(d) satisfies the first criterion
by spreading the risk of health care coverage among the general population
(including those who have handicaps). Cf. Metropolitan Life, 471 U.S. at 743,
105 S.Ct. at 2391 ("[The state statute] obviously regulates the spreading of risk:
as we have indicated, it was intended to effectuate the legislative judgment that
the risk of mental-health care should be shared."). We turn to the second
criterion--whether the statute regulates an integral part of the policy
relationship between the insurer and the insured.

36

In Metropolitan Life, a somewhat analogous case, the Supreme Court held that
a law came within this second criterion because it "limit[ed] the type of
insurance that an insurer may sell to the policyholder." 471 U.S. at 743, 105
S.Ct. at 2391. Similarly, in this case, Section 17B:30-12(d) prohibits the
inclusion of discriminatory terms in insurance policies. Consequently, it would
appear to satisfy this criterion. Travelers argues, however, that Section 17B:3012(d) does not satisfy this criterion because, "[a]lthough [it] impose[s] a
standard of conduct, [it] do[es] not regulate the terms of insurance policies."
(Travelers' Br. at 20-21).

37

Travelers' argument ignores the express provision in the statute that prohibits
discrimination in "the terms and conditions of [a] policy." N.J.Stat.Ann.
17B:30-12(d). A law that prohibits certain policy provisions may be every bit
as integral to the insurer-insured relationship as one that mandates the inclusion
of certain terms. Cf. Metropolitan Life, 471 U.S. at 743, 105 S.Ct. at 2391
(concluding that statute which mandates inclusion of certain policy provisions
is integral to the insurer-insured relationship). Thus, we conclude that Section
17B:30-12(d) satisfies the second McCarran-Ferguson criterion. We turn to an
analysis of the third criterion.

38

Facially, Section 17B:30-12(d) appears to meet the third criterion that it be

"limited to entities within the insurance industry." Hartford, --- U.S. at ----, 113
S.Ct. at 2901 (quoting Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129,
102 S.Ct. 3002, 3009, 73 L.Ed.2d 647 (1982)). Travelers argues, however, that
Section 17B:30-12(d) is not technically limited to the insurance industry
because it prohibits discrimination by any "person" and the term "person" is
statutorily defined to include "any individual, insurer, company, association,
organization, society, partnership, syndicate, trust, business trust, corporation
[or] legal entity." In support of its position, Travelers notes that plaintiff has
named non-insurers (i.e. Baker and Richardson-Vicks) as defendants. Thus,
Travelers likens Section 17B:30-12(d) to a generic unfair trade practice statute
which would have equal application to any industry. We find Travelers'
argument unpersuasive.

39

We note that Section 17B:30-12(d) regulates only persons who provide "life
insurance, health insurance and annuities." N.J.Stat.Ann. 17B:30-1 (West
1985). We also point out that it speaks in terms that are largely unique to the
insurance industry (e.g. "premium," "policy fees," "rates," "benefits payable").6
We conclude that the statute is distinguishable from any generic unfair trade
practice statute and that it satisfies the third McCarran-Ferguson criterion.

40

We have concluded that the New Jersey statute satisfies each of the three
McCarran-Ferguson criteria. Our conclusion is further supported by the reason
given by the legislature for enacting the statute which contains Section 17B:3012(d). The statute's declaration of purpose states: "The principal purpose [of the
statute] is to regulate trade practices in the business of life insurance, health
insurance and annuities in accordance with the intent of Congress as expressed
in the [McCarran-Ferguson] Act...." N.J.Stat.Ann. 17B:30-1 (West 1985).7

41

Both our common sense reading of the phrase "regulates insurance" and our
application of the McCarran-Ferguson criteria support the conclusion that the
New Jersey statute regulates insurance within the meaning of ERISA's saving
clause. As such, the statute would appear to be saved from ERISA preemption.
Notwithstanding this conclusion, Travelers argues that Section 17B:30-12(d) is
preempted because it directly conflicts with ERISA. We now address that
argument.

3. Conflict Preemption
42

In several cases, the Supreme Court has stated that even if a statute is not
expressly preempted by ERISA, it is nevertheless preempted if "it conflicts

directly with an ERISA cause of action." Ingersoll-Rand Co. v. McClendon,

498 U.S. 133, 142-45, 111 S.Ct. 478, 484-86, 112 L.Ed.2d 474 (1990); see
Pilot, 481 U.S. at 57, 107 S.Ct. at 1558 (distinguishing a case where the Court
concluded that a state statute was not preempted as "not involv[ing] a state law
that conflicted with a substantive provision of ERISA"). Travelers argues that
such "conflict preemption" exists in this case because "[plaintiff's] cause of
action directly conflicts with the federal cause of action under ERISA 502(a)
(1)(B), which authorizes a participant in an employee benefit plan to bring a
civil action 'to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan.' " (Travelers' Br. at 15-16 (quoting 29
U.S.C. 1132(a)(1)(B))). We conclude that Travelers misapprehends the
requirements for conflict preemption.
43

In McClendon, the Supreme Court stated that conflict preemption occurs when
a state statute "purports to provide a remedy for the violation of a right
expressly guaranteed by [a section of ERISA] and exclusively enforced by
502(a) [of ERISA]." 498 U.S. at 145, 111 S.Ct. at 486. Section 17B:30-12(d)
purports to provide a proper plaintiff with a remedy for an insurance carrier's
violation of an insured handicapped person's right not to be unfairly
discriminated against in the terms and conditions of a health insurance policy.
Travelers does not, and could not reasonably, contend that any provision of
ERISA expressly guarantees this same right. Accordingly, we conclude that a
necessary requirement for conflict preemption is missing here.

44

We recognize that cases from other courts of appeals may be read to support
Travelers' position on conflict preemption. See, e.g., Donatelli v. Home Ins.
Co., 992 F.2d 763, 765 (8th Cir.1993) (affirming a district court's dismissal of a
state law claim; "If 'saved' from ERISA preemption, the Missouri ... statute will
govern the interpretation of [the] policy, but that does not affect the preemption
of state law remedies by 1132."); Ruble v. UNUM Life Ins. Co., 913 F.2d
295, 297 (6th Cir.1990) (concluding that case was removable to federal court
because, "[r]egardless of how Michigan's insurance code might have modified
the terms of the ... insurance policy ... any action brought by a beneficiary to
enforce the policy as so modified could only be brought under 502 of
ERISA...."). However, if we correctly read those cases as reaching a result
contrary to the one we reach here, our preference is understandably for our own
result.

45

We have concluded that the district court correctly determined that the New
Jersey statute was not preempted by ERISA. Accordingly, the district court had
supplemental, rather than original, jurisdiction over the state claim. Thus, the

district court had discretion to remand the claim to state court. We reject
Travelers' argument, unsupported by caselaw, that the district court was
required to determine certain choice of law issues (e.g., which state's laws
should be applied to interpret the insurance policy) before remanding the claim.
Accordingly, we find no evidence that the district court abused its discretion in
remanding the claim.8
IV. CONCLUSION
46

We conclude that the proper method of review in this case is by petition for
writ of mandamus. Accordingly, we will dismiss the appeal. We further
conclude that Travelers has not established that its "right to issuance of the writ
is 'clear and indisputable.' " In re Pruitt, 910 F.2d 1160, 1167 (3d Cir.1990)
(quoting Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct.
1814, 1822, 104 L.Ed.2d 318 (1989)). Accordingly, the writ will be denied.

"The essential feature of Bipolar Disorder is one or more Manic Episodes,

usually accompanied by one or more Major Depressive Episodes." American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders
225 (3d ed. rev.) (citations omitted)

Baker had earlier filed a petition for a writ of mandamus directing the district
court to vacate its remand order. Another panel of this court denied Baker's
petition without opinion. No party argues that the denial of Baker's petition by
a different panel of this court has any preclusive effect here
Although Baker is neither a petitioner nor an appellant, it nevertheless filed a
brief and argued in these cases. In its brief and at oral argument, Baker asked
this court to reconsider the earlier denial of its petition for mandamus.
However, a different panel of this court denied Baker's petition for mandamus
in an entirely separate proceeding. Accordingly, we do not think it is an
appropriate subject for consideration here.

Under this exception to the finality rule of [28 U.S.C.] 1291, an interlocutory
order may be appealed if it falls within "that small class which finally
determine claims of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case is
adjudicated."
In re Pruitt, 910 F.2d 1160, 1166 (3d Cir.1990) (quoting Cohen, 337 U.S. at
546, 69 S.Ct. at 1225-26).

The parties do not attach any significance to the fact that Travelers did not
request the district court to grant an interlocutory appeal of the issues under 28
U.S.C. 1292(b) before petitioning for mandamus. Nor do we under the
present circumstances. Cf. In re School Asbestos Litig., 977 F.2d 764, 774 (3d
Cir.1992)

Our preemption analysis focuses on Section 17B:30-12(d) though both statutes

relied upon by plaintiff contain essentially the same language. See
N.J.Stat.Ann. 17:29B-4(7)(b) (West 1985). Section 17:29B-4(7)(b) prohibits
any person from
[m]aking or permitting any unfair discrimination between individuals of the
same class and of essentially the same hazard in the amount of premium, policy
fees, or rates charged for any policy or contract of accident or health insurance
or in the benefits payable thereunder, or in any of the terms or conditions of
such contract, or in any other manner whatever.
No party argues that we would reach a different conclusion as to preemption if
we focused on Section 17:29B-4(7)(b).

Regulations issued under the authority of Section 17B:30-12(d) also focus

exclusively on issues unique to the insurance industry (i.e., actuarial
justification for rate setting). The regulations identify the following as acts of
"unfair discrimination between individuals of the same class":
Refusing to insure, or refusing to continue to insure, or limiting the amount,
extent or kind of coverage available to an individual, or charging an individual
a different rate for the same coverage solely because of blindness, partial
blindness or other physical or mental impairments, except where the refusal,
limitation or rate differential is based on sound, actuarial principles or is related
to actual or reasonably anticipated experience.
N.J.Admin.Code tit. 11, 11:4-20.2(a)(1) (1988).

Section 17:29B-4(7)(b), the other statutory section cited by plaintiff, was also
enacted for this same purpose. See N.J.Stat.Ann. 17:29B-1 (West 1985)

We recognize that there might be some doubt as to whether a private plaintiff

has standing to bring a cause of action in state court under the New Jersey
statutes relied upon by plaintiff. See, e.g., Pierzga v. Ohio Casualty Group of
Ins. Cos., 208 N.J.Super. 40, 504 A.2d 1200, 1204 (App.Div.), cert. denied,
104 N.J. 399, 517 A.2d 402 (1986); see also Pickett v. Lloyds, 131 N.J. 457,
621 A.2d 445, 451 (1993). However, after reviewing the pertinent caselaw and
the parties' supplemental briefing on this issue, we believe that the standing

issue is not sufficiently settled to support a conclusion that the district court
abused its discretion in remanding the claim