Before MILLER and DANAHER, Circuit Judges, and MADDEN, Judge, United States Court of Claims.*
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT.
May 22, 1958. 1958.CDC.85
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MADDEN
The District Court dismissed the complaint, and the plaintiffs have appealed from that judgment. The original defendant and the intervening defendant sell the same kinds of contracts or policies. Those of VALIC will be discussed in this opinion.
The appellees contend that the contracts which they sell and which are the subject of this controversy are annuity policies and are therefore covered by the law relating to insurance, and not by the law relating to securities. They point to section 3(a) (8) of the Securities Act of 1933, 15 U.S.C.§ 77 (c) (a) (8) which says:
SEC. 3. (a) Except as hereinafter expressly provided, the provisions of this title shall not apply to any of the following classes of securities:
(8) Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia;
They point to section 3(c) (3) of the Investment Company Act of 1940, 15 U.S.C. § 80a-3(c) (3), which says that an insurance company is not an investment company within the meaning of the Act, and to section 2(a) (17) of that Act, 15 U.S.C. § 80a-2 (a) (17) which says:
(a) When used in this title, unless the context otherwise requires -
(17) "Insurance company" means a company which is organized as an insurance company, whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies, and which is subject to supervision by the insurance commissioner or a similar official or agency of a State; or any receiver or similar official or any liquidating agent for such a company, in his capacity as such.
They point to the McCarran-Ferguson Insurance Regulation Act of March 9, 1945, 59 Stat. 33; 15 U.S.C. §§ 1011-1015, which says:
. . . That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
SEC. 2. (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the ...