No. 19-1343 ___________________________

Guardian Flight LLC

Plaintiff Appellant

v.

Jon Godfread, in his capacity as North Dakota Insurance Commissioner; Wayne Stenehjem, in his capacity as North Dakota Attorney General

Defendants Appellees

------------------------------ America's Health Insurance Plans; National Association of Insurance Commissioners

Amici on Behalf of Appellee(s) ___________________________

No. 19-1381 ___________________________

Guardian Flight LLC

Plaintiff Appellee

v.

Jon Godfread, in his capacity as North Dakota Insurance Commissioner; Wayne Stenehjem, in his capacity as North Dakota Attorney General

Defendants Appellants ------------------------------ National Association of Insurance Commissioners; America's Health Insurance Plans

Amici on Behalf of Appellant(s) ____________

Appeals from United States District Court for the District of North Dakota - Bismarck ____________

Submitted: June 16, 2020 Filed: March 17, 2021 ____________ Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges. ____________ WOLLMAN, Circuit Judge.

Two provisions of North Dakota Senate Bill 2231 (SB 2231) are at issue in this case. The first prohibits air ambulance providers from directly billing out-of-network insured patients for any amount not paid for by their insurers (the payment provision). N.D. Cent. Code § 26.1-47-09(3). The second prohibits air ambulance providers or their agents from selling subscription agreements (the subscription provision). N.D. Cent. Code § 26.1-47-08. Guardian Flight LLC filed this declaratory judgment action, claiming that both provisions are preempted under the Airlines Deregulation Act (ADA). Defendants Jon Godfread, in his capacity as North Dakota Insurance Commissioner, and Wayne Stenehjem, in his capacity as North Dakota Attorney General, responded that, even if preempted, the provisions were saved under the McCarran-Ferguson Act.

-2- Ruling on cross-motions for judgment on the pleadings, the district court concluded that although the ADA preempted both provisions, the McCarran-Ferguson Act saved the subscription provision. We agree with the court’s ADA preemption analysis. We hold that the McCarran-Ferguson Act does not apply, however, because the provisions were not enacted “for the purpose of regulating the business of insurance.” Accordingly, we affirm in part, reverse in part, and remand with instructions to enter judgment in favor of Guardian Flight.

I. Background

Guardian Flight is a federally licensed air carrier that provides air ambulance services in North Dakota. Air ambulances transport critically ill or injured patients to hospitals that are able to provide the level of care that the patients require. First responders, attending physicians, and hospital emergency departments may call on air ambulances to transport patients and to provide in-flight medical care. Because air ambulances are used in emergencies, patients usually do not choose the provider.

In accordance with federal and state law, Guardian Flight provides air ambulance services regardless of whether the patients are insured or