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Travelers Indem. Co. of Illinois v. DiBartolo

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


November 18, 1997

TRAVELERS INDEMNITY COMPANY OF ILLINOIS,

v.

JOSEPH N. DIBARTOLO, APPELLANT

On Appeal From the United States District Court

For the Eastern District of Pennsylvania D.C. Civ.No. 96-6238

Before: MANSMANN, NYGAARD, Circuit Judges, and BLOCH, District Judge. *fn*

MANSMANN, Circuit Judge.

Filed November 18, 1997

September 10, 1997

OPINION OF THE COURT

In this appeal, we are asked to predict whether the Pennsylvania Supreme Court would permit an employee injured in an on-the-job automobile accident to recover from both workers' compensation as well as from an uninsured motorist plan that his employer voluntarily purchased. The district court held that workers' compensation was the employee's exclusive remedy. Shortly after that ruling, the Pennsylvania Superior Court held that state law did not bar an employee's recovery from both workers' compensation and an uninsured motorist plan. Because the Superior Court's reasoning is persuasive, we will reverse.

I.

In May of 1994, Joseph N. DiBartolo was injured while occupying an automobile owned by his employer, Knight-Ridder, Inc. *fn1 At the time of the accident, DiBartolo was acting in the course and scope of his employment. Subsequently, DiBartolo recovered workers' compensation and medical benefits from Knight-Ridder's insurer, Travelers Indemnity Co. of Illinois. Thereafter, he sought uninsured motorist benefits under an automobile insurance policy issued by Travelers to Knight-Ridder, which had voluntarily purchased the policy. Travelers responded by bringing this action for declaratory judgment. Travelers asked the district court to hold that DiBartolo's recovery of workers' compensation benefits after an on-the-job automobile accident precluded his later recovery on the uninsured motorist plan purchased by his employer. In the alternative, Travelers asked the district court to hold that Knight-Ridder had waived uninsured motorist coverage in Pennsylvania. After a pre-trial conference, the district court instructed the parties to file motions solely on the issue of the exclusivity of workers' compensation in Pennsylvania. In its Amended Order of November 25, 1996, the district court granted Travelers' motion for summary judgment. The court did not issue an opinion, but it cited Ducjai v. Dennis, 636 A.2d 1130 (Pa. Super. Ct. 1994) (en banc), aff'd, 656 A.2d 102 (Pa. 1995), in its order. DiBartolo took a timely appeal. *fn2

II.

A.

This appeal requires us to determine the effect of the Pennsylvania legislature's 1993 repeal of Section 1735 *fn3 and Section 1737 *fn4 of the Motor Vehicle Financial Responsibility Law (MVFRL). Travelers argues that the repeal of these sections of the MVFRL indicated a clear legislative intent. Indeed, when these statutes are read, they seem to have clearly authorized the collection of both workers' compensation and uninsured motorist benefits. Therefore, the repeal of these statutes would seem to have unambiguously reinstated the general rule that workers' compensation is the exclusive remedy available to employees injured on the job. See 77 Pa. Cons. Stat. Section(s) 481(a). *fn5

The Pennsylvania Supreme Court's decision in Hackenberg v. Southeastern Pa. Transp. Auth., 586 A.2d 879 (Pa. 1991), suggests, however, that Travelers' isolated, straightforward reading of Sections 1735 and 1737 is misguided. First, according to the Court in Hackenberg, Section 1737--the statute that, of the two, seemed to extend unequivocally to employees the privilege of receiving both workers' compensation and uninsured motorist benefits--never affected employers such as DiBartolo's (Knight-Ridder, Inc.) who voluntarily purchased uninsured motorist plans. As the Court noted in Hackenberg, Section 1737 was enacted several years after Section 1735. Id. at 880 n.3. Prior to the enactment of Section 1737, the Court held, Section 1735 did not authorize employees of self-insured employers to receive both workers' compensation and uninsured motorist benefits. Id. at 885.

In its earlier resolution of Hackenberg, the Pennsylvania Superior Court had noted that state law differentiated between self-insured employers and employers who purchased uninsured motorist plans. Hackenberg v. SEPTA, 558 A.2d 860, 864 (Pa. Super. Ct. 1989). Under its view of the law, injured employees who had received workers' compensation benefits could also recover on uninsured motorist plans that had been purchased by their employers. Id. Nonetheless, injured employees were barred from recovering both types of benefits when their employers were self-insured. Id. The Supreme Court agreed with the Superior Court's analysis, holding that self-insured employers--in the absence of Section 1737--were under a different set of obligations than were employers who purchased plans. Hackenberg, 586 A.2d at 883-84. The clear implication of Hackenberg is that prior to the enactment of Section 1737, employees could receive workers' compensation and uninsured motorist benefits from employers' purchased plans. Id. at 883 (discussing insurance policies). If the Pennsylvania Supreme Court had thought the Superior Court erred in making the distinction that undergirded its opinion, surely the Supreme Court would have said so. It is clear, however, that the Supreme Court's majority accepted the distinction between self-insured employers and employers who purchased plans. See id. at 885-86 (Cappy, J., concurring and dissenting, arguing that the majority's distinction between self-insured and other employers was irrational and not dictated by law).

Therefore, we learn from Hackenberg that the ability of employees to recover both workers' compensation and uninsured motorist benefits via employers' purchased plans did not stem from Section 1737. Employees had that ability prior to Section 1737. Indeed, it may be that, if anything, Section 1737 was enacted to ensure that employees whose employers were self-insured would not be penalized by the distinction drawn in Hackenberg and other cases such as Lewis v. School Dist. of Phila., 538 A.2d 862 (1988) (holding that employees of self-insured employers could not, under the pre-MVFRL Uninsured Motorist Act, collect uninsured motorist benefits). See also Hackenberg, 586 A.2d at 883 n.9 (speculating that the legislative purpose behind Section 1737 was to ensure that all employees be able to receive both workers' compensation and uninsured motorist benefits). In any event, as Section 1737 did not affect employers who purchased uninsured motorist plans, Hackenberg suggests that the repeal of Section 1737 could not have had any impact on employees such as DiBartolo.

In Hackenberg, the Pennsylvania Supreme Court also made clear that Section 1735 was not the source of the ability of employees to recover from employers' purchased uninsured motorists plans as well as from workers' compensation. There the Court specifically rejected a suggestion that Section 1735 was designed to ensure an employee's access to both workers' compensation and

uninsured motorist benefits. Hackenberg, 586 A.2d at 883 & n.9. Instead, the Court held, Section 1735 was a restriction on what insurers could include in their uninsured motorist plans--plans that employers were then required by law to have, in the absence of self-insurance. Id. at 883. Therefore, the repeal of Section 1735 was required by the legislature's decision to make uninsured motorist plans optional. If, as the Hackenberg opinion suggests, Section 1735 was not the source of an injured employee's recovery of both workers' compensation and uninsured motorist benefits, its repeal could not have precluded DiBartolo's recovery of both types of benefits.

B.

Despite its analysis in Hackenberg, the Supreme Court offered a different view of the legislative repeal of Sections 1735 and 1737 in Ducjai v. Dennis, 656 A.2d 102 (Pa. 1995). There an employee filed negligence actions against a co-worker and the driver of another vehicle involved in an on-the-job accident. Ducjai, 656 A.2d at 103. In sweeping language, the Superior Court had held "that worker's compensation benefits are the sole and exclusive remedy available to employees injured in a motor vehicle accident in the course and scope of their employment." Ducjai, 636 A.2d at 1131.

On appeal, the Supreme Court affirmed the Superior Court's holding. Ducjai, 656 A.2d at 107. It phrased the final result in much narrower terms, however, holding "that an employee may not recover both workers' compensation benefits from her employer as well as damages at common law from her co-employee . . . when injured in an [on-the-job] automobile accident." Id. (emphasis added). Nevertheless, in the course of its opinion, the Supreme Court agreed with the Superior Court that the repeal of Sections 1735 and 1737 had greatly affected the ability of employees to collect from sources other than workers' compensation for on-the-job automobile accidents. Id. at 106. The Supreme Court approvingly cited the Superior Court's observation that "[t]he legislature has tried time and again to make it clear that worker's [sic] compensation benefits are to be the exclusive remedy for employment-related injuries, save for those intentionally inflicted." Id. Indeed, the Supreme Court specifically suggested that the legislative repeal had effectively overturned Superior Court decisions--Chatham v. Aetna Life & Cas. Co., 570 A.2d 509 (Pa. Super. Ct. 1989), and Ferry v. Liberty Mut. Ins. Co., 573 A.2d 610 (Pa. Super. Ct. 1990) -- which had permitted employees to recover both workers' compensation and uninsured motorist benefits. Ducjai, 656 A.2d at 106. In striking contrast to Hackenberg, Ducjai suggests that the repeal of Sections 1735 and 1737 should bar DiBartolo's recovery of both workers' compensation and uninsured motorist benefits.

C.

Although the pertinent observations in the Supreme Court's Ducjai holding were dicta, *fn6 the Court indicated its view that Pennsylvania law now completely precludes an employee's recovering both workers' compensation and uninsured motorist benefits. Despite Ducjai, two opinions of the Superior Court issued after the district court's ruling interpreted the legislative repeal of Sections 1735 and 1737 much differently. In Warner v. Continental/CNA Ins. Co., 688 A.2d 177, 179 (Pa. Super. Ct. 1996), allocatur denied, 698 A.2d 68 (Pa. 1997), the Superior Court held that an employee injured in an on-the-job automobile accident could collect both workers' compensation and underinsured motorist benefits. There the court concluded that the exclusivity provisions of the Workmen's Compensation Act ("WCA") could not, for several reasons, operate to bar claims on uninsured/underinsured motorist policies. First, the court noted that the WCA had always been interpreted to bar employees' claims for uninsured motorist benefits only from employers who were self-insured. Id. at 182. Employees' claims on uninsured motorist policies purchased by the employer had not been barred by the WCA. Id.

Secondly, the court rejected the suggestion that the legislature's repeal of Sections 1735 and 1737 indicated an intent to bar recovery of both workers' compensation and uninsured motorist benefits. Id. at 182-83. Instead, the Superior Court observed that the repeal of Sections 1735 and 1737 had taken place alongside the legislature's repeal of the portion of Section 1720 that had previously prevented subrogation against a claimant's tort recovery by a workers' compensation insurance carrier. Id. at 183. According to the court, these repeals should be understood as part of a single plan:

Thus, before the amendment, a claimant could not recover amounts paid or payable under workers' compensation and, balanced against that provision, a workers' compensation carrier had no right of subrogation for workers' compensation benefits. By contrast, after the 1993 amendments, a plaintiff 's recovery is not reduced by the amount of workers' compensation benefits, and the workers' compensation carrier has the right of subrogation for any benefits paid in connection with the action. Id. (quoting Schroeder v. Schrader, 682 A.2d 1305 (Pa. Super. Ct. 1996)). <--text-->

Finally, the Warner court noted that legislative intent must be especially clear for it to conclude the legislature had intended to forbid employers from buying optional uninsured/underinsured motorist policies for the benefit of employees. Warner, 688 A.2d at 183. The court noted that the Supreme Court has held that such fringe benefits are "voluntarily bargained for and have an independent contractual vitality." Id. at 184 (quoting Wagner v. National Indem. Co., 422 A.2d 1061, 1067 (Pa. 1980). See also Panichelli v. Liberty Mut. Ins. Group, 669 A.2d 930, 932-33 (Pa. 1996) (holding that an injured employee's recovery of workers' compensation as well as sick pay and social security benefits was not unlawful "double dipping").

Moreover, according to the Superior Court, a claim on a policy purchased by the employer is not a claim against the employer; therefore, the uninsured motorist carrier cannot "borrow" the employer's immunity from suit. Warner, 688 A.2d at 184 (quoting Boris v. Liberty Mut. Ins. Co., 515 A.2d 21, 24 (Pa. Super. Ct. 1986)).

The Superior Court did not discuss in Warner its prior Ducjai holding or the Supreme Court's affirmance, which contained the strong, pertinent dicta about uninsured motorist benefits. In a post-Warner case, however, the Superior Court narrowly read Ducjai as precluding only an employee's negligence action against a co-employee. Gardner v. Erie Ins. Co., 691 A.2d 459, 463-64 (Pa. Super. Ct. 1997). An action against the co-employee's uninsured motorist carrier, said the court, was not subject to the WCA's exclusivity provisions and was not precluded. Id. at 464. That was so because the injured employee's suit was not against the employer or any source attributable to the employer; instead, the suit was analogized to one against "a third-party tortfeasor's liability insurance." Id. See also id. at 464-65 (noting that a suit against even the employer's uninsured motorist carrier is not, under Warner, a suit against the employer). Under the Superior Court's analysis, as enunciated in Warner and Gardner, *fn7 there is no legal barrier to DiBartolo's receipt of both workers' compensation and uninsured motorist benefits.

III.

A.

As a federal court sitting in diversity, we must apply the substantive law as decided by the state's highest court. *fn8 Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1373 & n.15 (3d Cir. 1996). Because the Pennsylvania Supreme Court has not directly addressed the issue before us now, we must forecast how the Supreme Court would resolve the issue. Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993). Applicable decisions of the Superior Court must be accorded significant weight. Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir. 1991). The "carefully considered statement[s]" of the Supreme Court in dicta in Ducjai also inform our prediction. McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 n.21 (3d Cir. 1980). Although it is a close case, we are ultimately persuaded by the Superior Court's compelling reasoning in Warner. *fn9

B.

First, we note with approval that the Warner court considered the larger context surrounding the repeal of Sections 1735 and 1737. In particular, the Superior Court saw the repeal of Section 1735 as directly related to the contemporaneous repeal of Section 1720. Warner, 688 A.2d at 183. Thus, the Superior Court understood the legislature to have been exchanging one comprehensive system for another. In the previous arrangement, a workers' compensation carrier had no right to subrogate against an employee's claim and the employee could not recover from the uninsured motorist carrier any amounts payable under workers' compensation. Id. In the new arrangement, the employee's recovery from the uninsured motorist carrier is not to be reduced by the amount of any workers' compensation benefits payable, but the workers' compensation carrier is given the right of subrogation for any benefits paid to the employee under workers' compensation. Id.

According to the Warner court, the repeal of Sections 1735 and 1720 effected a single plan. Under the post-repeal law, the injured employee is permitted to recover both workers' compensation and uninsured motorist benefits, including a possible recovery from each of these two sources for the same injury. The collection by the employee of the uninsured motorist benefits, however, merely creates a fund against which the workers' compensation carrier can exert a subrogation lien for amounts it paid the employee for the already-recompensed injury. Id.; Gardner, 691 A.2d at 465. Understood in this broader context, the repeal of Section 1735--like the repeal of Section 1737--did not affect the ability of employees to recover both workers' compensation and uninsured motorist benefits. *fn10 Indeed, the repeal of Section 1735 permitted the injured employee to recover more from these sources, although the workers' compensation carrier may ultimately be the beneficiary--by the use of its subrogation lien--of any double recovery. See Gardner, 691 A.2d at 466 (Hudock, J., concurring).

We note that the Superior Court's interpretation of Section 1735 in Warner is consistent with the Supreme Court's statement in Hackenberg that 1735 was only a limitation on what kinds of policies uninsured motorist carriers could write. Hackenberg, 586 A.2d at 883. Travelers argues that Section 1735 actually authorized the employee's recovery of both workers' compensation and uninsured motorist benefits. This is not an outrageous claim, given the Supreme Court's dicta in Ducjai that the repeal of Sections 1735 and 1737 ended the recovery of both types of benefits. Ducjai, 656 A.2d at 106. This interpretation, however, is inconsistent with the Court's prior treatment of Section 1735 in Hackenberg. Given this unexplained inconsistency and the fact that the Supreme Court did not have the issue directly before it in Ducjai (as did the Supreme Court in Hackenberg and the Superior Court in Warner), we are persuaded by the Superior Court's analysis of the repeal of Sections 1735 and 1737.

Thus, we conclude that neither Section 1735 nor Section 1737 was the source of the ability of employees to collect both workers' compensation and uninsured motorist benefits. Although it is not clear when employees began to be able to collect both types of benefits, it is clear that the ability to collect both types was judicially recognized and was independent of Sections 1735 and 1737. See, e.g., Chatham, 570 A.2d at 512 (Pa. Super. Ct. 1990), aff'd, 605 A.2d 329 (Pa. 1992) (noting that an employee could apparently have collected both types of benefits even in the absence of Section 1735). See also State Farm Ins. Cos. v. Ridenour, 646 A.2d 1188, 1190-91 (Pa. Super. Ct. 1994) (collecting cases). Given this case law *fn11 and the inapplicability of Sections 1735 and 1737, we view the repeal of Sections 1735 and 1737 as irrelevant to the issue we must decide. See Warner, 688 A.2d at 183 (noting that "[i]n light of the prior case law which the legislature was well aware of when it enacted [the repeals], we are unable to conclude that the legislature intended that the [exclusivity] provisions of the WCA would preclude recovery"). To end the recovery of both types of benefits, the legislature would have to take clearer action than the silent repeal of inapplicable sections.

C.

We also find convincing the Superior Court's emphasis in Warner on the fact that uninsured motorist coverage is now optional, and we predict the Supreme Court would adopt the Superior Court's analysis. Because uninsured motorist coverage is no longer mandated by the state, the Warner court viewed an employer's voluntary purchase of such coverage as a decision to provide employees with a fringe benefit. Id. at 184. We agree. When viewed as a fringe benefit that employers provide their employees (or that employees demand as a condition of employment), uninsured motorist coverage cannot be subject to the exclusivity provisions of the WCA. Wagner, 422 A.2d at 1067 (the Supreme Court noting that an employer or insurance carrier is "precluded from asserting" immunity for fringe benefits because of their "independent contractual vitality"). *fn12 Since the coverage is purchased for the employee's benefit and not to protect the employer from any of its own wrongdoing, there is no immunity for the workers' compensation carrier to borrow from the employer. Warner, 688 A.2d at 184. Moreover, as the Supreme Court recently noted, an employee's collection of a fringe benefit does not "result in double dipping," the harm the exclusivity provision of the WCA is designed to prevent. Panichelli, 669 A.2d at 932. *fn13

Travelers suggests that employers likely purchase uninsured motorist plans only to protect (i) their clients and customers who ride in company vehicles and (ii) their employees when they drive company vehicles outside the course and scope of their employment. While it is obvious that employers might well purchase uninsured motorist plans for the reasons Travelers lists, there is no reason why employers might not also purchase plans to benefit their on-the-job employees. Indeed, employers may do so because workers' compensation covers only a small portion of the types of damages an injured worker might suffer. Selected Risks Ins. Co. v. Thompson, 552 A.2d 1382, 1388 (Pa. 1989); Chatham, 570 A.2d at 512. Uninsured motorist plans can cover pain and suffering, wage loss, and consequential damages that are unavailable under workers' compensation. Selected Risks, 552 A.2d at 1388. Travelers does not offer any explanation why Pennsylvania would wish to bar employers from attempting to shield their employees from all of the types of on-the-job injuries the employees might suffer. Since DiBartolo's employer voluntarily purchased uninsured motorist coverage, we are satisfied that this fact would cause the Supreme Court to view the insurance policy as a fringe benefit. As a fringe benefit, the policy has "independent contractual vitality," and DiBartolo's recovery under the policy is not barred by the exclusivity provisions of the WCA. Wagner, 422 A.2d at 1067.

IV.

In this appeal, we are faced with a difficult choice. On one hand, there is the clear, recent dicta in Ducjai, suggesting the Supreme Court would view the repeal of Sections 1735 and 1737 as dispositive. On the other hand, there is the even more recent Superior Court opinion, Warner, that places the legislative repeal in a larger and much different context. We are persuaded by the Superior Court's opinion, both because of the depth of its analysis and because Warner is consistent with the Supreme Court's own discussion of the repealed sections in Hackenberg. We find particularly persuasive the Warner court's reasoning that uninsured motorist coverage is best viewed as a fringe benefit now that uninsured motorist plans are optional.

Because we predict that the Pennsylvania Supreme Court would hold that Pennsylvania law does not preclude an employee's recovery under both worker's compensation and an employer's voluntarily-purchased uninsured motorist plan, we will reverse and remand this matter to the district court for further proceedings.

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, 656 A.2d 102 (Pa. 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 case 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 case 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 its 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 (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., 688 A.2d 177 (Pa. Super. Ct. 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. 570 A.2d 509 (Pa. Super. Ct. 1989)(declined to follow by Ducjai); Ferry v. Liberty Mut. Ins. Co., 573 A.2d 610 (Pa. Super. Ct. 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: compensable 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 Protestant 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 in before us; therefore I would affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals for the Third Circuit


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