Travelers Indemnity Company of Illinois v. Joseph N. Dibartolo

NYGAARD, Circuit Judge,

dissenting.

The Pennsylvania Supreme Court addressed the issue before us in well-reasoned dicta: “the repeal of Sections 1735 and 1737 of the MVFRL in 1993 has assured that the double recovery ... is no longer permitted.” Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995). The district court cited Ducjai in its order. I see no reason why this is not a conclusive statement of Pennsylvania law. Indeed, I suggest that to do otherwise does violence to a consensus reached by a majority of the Pennsylvania Supreme Court. I respectfully dissent.

DiBartolo argues that a single Pennsylvania Superior Court ease is compelling, and should be the basis of our construction of state law despite the clear statement of the Pennsylvania Supreme Court in Ducjai. This conclusion is not supported by casé law that dictates our obligations when reviewing a diversity case.

.As a federal court sitting in diversity, we are bound to either follow the pronouncement of the state’s highest court, or forecast *352its position if no holding directly addresses the issue before us. City of Philadelphia v. Lead Industries Assn. Inc., 994 F.2d 112, 119 (3d Cir.1993); Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir.1993). Carefully considered, relevant statements by a state supreme court, even if technically dicta, provide a federal court with reliable indicia of how the state tribunal would rule on a particular question. Nolan v. Transocean Air Lines, 365 U.S. 293, 296, 81 S.Ct. 555, 557, 5 L.Ed.2d 571 (1961); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir.1980). The Pennsylvania Supreme Court has discussed the precise issue before us, so we need not speculate or forecast how it would hold on this issue.

The court in Ducjai discussed whether an employee can collect benefits under workers’ compensation and uninsured motorist insurance in strongly-worded dicta that should be controlling. Ducjai, 656 A.2d at 106. Ducjai prohibited double recovery in the exact fact pattern presented here.

DiBartolo relies upon Warner v. Continental/CNA Insurance Co., 455 Pa.Super. 295, 688 A.2d 177 (1996), to argue that he can obtain benefits under workers’ compensation and uninsured driver benefits. Warner analyzes the same fact pattern presented here. Warner’s conclusion regarding double recovery is at odds with the dicta in Ducjai; yet it does not discuss Ducjai.

The Pennsylvania Supreme Court opted not to review Warner. Our task remains to predict whether, in light of Ducjai, the Pennsylvania Supreme Court would approve of Warner’s rationale. I think it would not.

DiBartolo contends that we should use Warner to construe Pennsylvania law because it is a more persuasive consideration of the effect of the repealed statutes. I disagree, not for the substance of his argument, but because our standard of review limits our interpretation of Pennsylvania law. We cannot simply ignore the state supreme court and cite one intermediate appellate court case to the contrary.

The central conflict between Ducjai and Warner concerns the effect of the legislature’s repeal of two provisions of the motor vehicle financial responsibility law. These two provisions supported case law allowing an individual to obtain worker’s compensation and uninsured motorist benefits for an on-the-job accident. See Chatham v. Aetna Life & Cas. Co. 391 Pa.Super. 53, 570 A.2d 509 (1989) (declined to follow by Ducjai); Ferry v. Liberty Mut. Ins. Co., 392 Pa.Super. 571, 573 A.2d 610 (1990) (same).

In Ducjai, the Pennsylvania Supreme Court concluded that by repealing Sections 1735 and 1737, the Pennsylvania legislature intended to preclude double coverage and instead treat work-related car accidents like all other employment-related accidents: com-pensable under workers’ compensation only. Ducjai, 656 A.2d at 106. However, Warner held that exclusivity provisions of the Worker’s Compensation Act do not prevent a claimant from recovering uninsured motorist benefits, despite the repeal of the statutory provisions that would support this argument. 688 A.2d at 183.

As a federal court sitting in diversity we predict the state supreme court’s position on an issue by examining, in order of priority: the decisional law of the highest state court in analogous cases; the dicta of that court; and to a lesser degree, the decisional law of lower state courts. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir.1980). Decisions of lower state courts should be accorded proper regard, but not conclusive effect in interpreting state law, especially when the highest court has already addressed the issue in dicta. Id.

In this case, the dicta in Ducjai should carry great weight. Ducjai is a recent case; there has been no subsequent change in the statute; and there are no indications that the court is about to abandon this view. See Cowgill v. Raymark Industries, Inc., 780 F.2d 324, 331 (3d Cir.1985). We should only diverge from precedent with caution, and then only when we are given convincing evidence of a doctrinal trend that the highest state court is substantially certain to follow. W.A. Wright, Inc. v. KDI Sylvan Pools, Inc., 746 F.2d 215, 218 (3d Cir.1984). I suggest that one lower state court case, even if it is well reasoned, does not constitute a trend. See Scotts African Union Methodist Protes*353tant Church v. Conference of African Union First Colored Methodist Protestant Church, 98 F.3d 78, 92 (3d Cir.1996) (five cases from lower appellate courts are sufficient to show the doctrinal trend required by McKenna).

In sum, the Pennsylvania Supreme Court decided the effect of the repeal of Sections 1735 and 1737 on double recovery in Ducjai. Even though it discussed the issue in dicta, it is a clear manifestation of the sentiments of the court regarding the issue in this case: the repeal of Sections 1735 and 1737 prevents an employee from recovering benefits from workers’ compensation and an uninsured motorist policy. That is the precise issue before us; therefore I would affirm.