State Farm Mutual Automobile Insurance v. Flubacher , 69 F. App'x 528 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-23-2003
State Farm Mutl Auto v. Flubacher
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2849
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Recommended Citation
"State Farm Mutl Auto v. Flubacher" (2003). 2003 Decisions. Paper 444.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 02-2849
___________________
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
CATHERINE FLUBACHER,
Appellant
________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 01-cr-05012)
District Judge: Honorable Charles R. Weiner
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 20, 2003
Before: SCIRICA, Chief Judge, NYGAARD and BECKER,
Circuit Judges
(Filed: June 23, 2003)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an appeal from an order of the District Court granting summary judgment in
favor of State Farm Automobile Insurance Company in its declaratory judgment action
against Catherine Flubacher. State Farm asked the Court to determine that Flubacher, a
State Farm policyholder, was bound by her deceased husband’s written election of
uninsured/underinsured motorist limits in the amount of $15,000 per person/$30,000 per
accident, which limits are lower then the limits of bodily injury liability coverage on the
policy. The District Court held that she was. We affirm. The facts are well known to the
parties and need not be repeated here.
Flubacher’s argument is squarely precluded by the decisions in Nationwide Mutual
Insurance Company v. Rosetta Buffetta, Administratrix of the Estate of Francesco
Miriello, 230 F.3d 634 (3d Cir. 2000); Kimball v. CIGNA, 660 A.2d 1386 (Pa. Super.
1995); and Rupert v. Liberty Mutual Insurance Company, 291 F.3d 243 (3d Cir. 2002).
While the opinion writer is flattered that Flubacher’s counsel urges that his dissenting
opinion in Rupert is better reasoned than that of the majority, it remains a dissent, and we
are, of course, bound by the majority.
Finally, Flubacher looks to a decision by the Allegheny County Court of Common
Pleas, in which the Court, without citation to any cases, held that a wife was not bound by
the limited tort election made by her ex-husband. Kail v. Kalsek, Case No. GD99-15479
(Allegheny Cty. Ct. of Common Pleas May 31, 2001). Although the facts in Kail seem
identical to Buffetta (the wife was covered but not the named insured on her ex-husband’s
policy and only became the named insured after her ex-husband was removed from the
policy), the Court determined that a new policy was created and the ex-husband’s election
could not bind the wife. Despite this contradiction, we cannot revisit our conclusion in
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Buffetta simply on account of a Court of Common Pleas decision. See Smith v. Calgon
Carbon Corp., 917 F.2d 1338, 1341, 1343 (3d Cir. 1990) (holding that we are “required to
‘predict the position which [the Pennsylvania Supreme Court] would take in resolving this
dispute,’” and “in the absence of a clear statement by the Pennsylvania Supreme Court to
the contrary or other persuasive evidence of a change in Pennsylvania law, we are bound by
the holdings of previous panels of this court”) (quoting Robertson v. Allied Signal, Inc.,
914 F.2d 360, 364 (3d Cir. 1990)).
The judgment of the District Court will be affirmed.
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TO THE CLERK:
Kindly file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
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