dissenting:
I believe that the prediction of Pennsylvania law with respect to the liability of a primary to an excess carrier made by the district court in this case is at least as plausible as that made by the majority. I also believe that the court’s finding of bad faith is not clearly erroneous. Moreover the majority reads more into our decision in United States Fire Insurance Co. v. Royal Insurance Co., 759 F.2d 306 (3d Cir.1985) than I see there.1 Thus I would affirm the judgment appealed from.
. Judge Rosenn wrote:
Fire strongly urges that this court allow a direct cause of action by the excess carrier against the primary "thus obviating the need to struggle with the equitable subrogation theory.” Supp. brief, of appellee at 10. Fire has cited no Pennsylvania cases creating such a direct duty and no plausible legal or policy basis for so doing. We decline to do so in the instant case, without further guidance from the Pennsylvania Supreme Court. But see Puritan Ins. Co. v. Canadian Universal Ins. Co., 586 F.Supp. 84, 88 (E.D.Pa.1984).
759 F.2d at 309 n. 3. As I read United States Fire Ins. Co. v. Royal Ins. Co., supra, the panel intended to leave open the question that the district court decided in the instant case, because the panel relied on an equitable estoppel theory.