                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2000

Nationwide Mutl Ins v. Buffetta
Precedential or Non-Precedential:

Docket 99-1832




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Recommended Citation
"Nationwide Mutl Ins v. Buffetta" (2000). 2000 Decisions. Paper 225.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/225


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Filed October 20, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-1832

NATIONWIDE MUTUAL INSURANCE COMPANY

v.

ROSETTA BUFFETTA, ADMINISTRATRIX OF THE
ESTATE OF FRANCESCO MIRIELLO

       Rosetta Miriello Buffetta, Administratrix
       of the Estate of Francesco Miriello,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-06200)
District Judge: Honorable Robert F. Kelly

Argued July 17, 2000

Before: MANSMANN, RENDELL, and STAPLETON,
Circuit Judges

(Filed October 20, 2000)

       Vincent A. Guarna, Esq. [ARGUED]
       4620 Street Road
       Trevose Corporate
        Center
       Trevose, PA 19053
       Counsel for Appellant
       Rosetta Miriello Buffetta,
       Administratrix of the Estate
       of Francesco Miriello
       James C. Haggerty, Esq. [ARGUED]
       Swartz, Campbell & Detweiler
       1601 Market Street, 34th Floor
       Philadelphia, PA 19103
       Counsel for Appellee
       Nationwide Mutual Insurance
       Company

       David C. Harrison, Esq. [ARGUED]
       Law Offices of David C. Harrison
       2100 Arch Street, 5th Floor
       Philadelphia, PA 19103-1399
       Counsel for Amicus-Appellant
       Pennsylvania Trial Lawyers
       Association

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant challenges the District Court's ruling that
Nationwide Mutual Insurance Company ("Nationwide") was
not required to make payment of uninsured benefits to or
on behalf of appellant in excess of the $25,000 amount
stated in the policy limits after an earlier named insured
under the policy, her former husband, had elected that
amount in writing. An understanding of the facts is
necessary to our discussion.

I. STATEMENT OF FACTS

Appellant Rosetta Buffetta (also referred to as Rosetta
Miriello) was married to Saverio Buffetta in August 1979. In
1981, Mr. Buffetta obtained an automobile insurance
policy, No. 5837B93654, from Nationwide. Sometime
thereafter, appellant Rosetta Buffetta became a licensed
driver and was added to the policy as such. However, from
1981 to 1994, Mr. Buffetta was the sole named insu red
under the policy. The initial limits of liability under the
policy were $25,000/$50,000 for bodily injury and
$25,000/$50,000 for uninsured motorist coverage.

                                2
The parties have stipulated to several of the important
facts, and we recite them verbatim:1

       By the terms of a Property Settlement Agreement dated
       August 8, 1994, Saverio Buffetta retained the
       automobile insured under the Nationwide Mutual
       Insurance Company policy.

       In October 1994, Rosetta Buffetta filed for divorce from
       Saverio Buffetta. On October 22, 1994, Saverio
       Buffetta requested a change in the liability limits of
       coverage of the Nationwide Mutual Insurance Company
       policy from $25,000.00/$50,000.00 to $100,000.00/
       $300,000.00. On October 22, 1994, Saverio Buffetta
       signed and dated an Uninsured Motorist Coverage
       Authorization Form electing to continue and maintain
       the $25,000.00/$50,000.00 uninsured motorist
       coverage limit. Effective October 22, 1994, the coverage
       limits on the policy issued by the Nationwide Mutual
       Insurance Company were $100,000.00/$300,000.00 in
       liability coverage and $25,000.00/$50,000.00 in
       uninsured motorist coverage.

       Following the filing of the divorce and the entry of
       same, Saverio Buffetta and Rosetta Buffetta continued
       to live at 2343 S. Carlisle Street, Philadelphia,
       Pennsylvania. Saverio Buffetta and Rosetta Buffetta
       were divorced March 1, 1995. Saverio Buffetta
       continued to live at 2343 S. Carlisle Street,
       Philadelphia, Pennsylvania, until he moved to Italy in
       1995. Rosetta Buffetta continues to live at 2343 S.
       Carlisle Street, Philadelphia, Pennsylvania.

       Prior to moving to Italy, Saverio Buffetta transferred
       title of the automobile insured under the Nationwide
       Mutual Insurance Company policy to Rosetta Buffetta.
       The named insured/policyholder identified on the
       declarations pages of the Nationwide Mutual Insurance
       Company policy from October 22, 1981 until July 10,
       1995 was Saverio Buffetta.
_________________________________________________________________

1. The factual narrative is reproduced from paragraphs 12 through 31 of
the Stipulation of Facts submitted in the District Court, reprinted at
pages 23a-25a of the Appendix.

                               3
       Upon taking title to the car, Rosetta Buffetta notified
       the Nationwide Mutual Insurance Company of the
       divorce and requested that the policy be placed in her
       name. Effective July 10, 1995, the named
       insured/policyholder identified on the declaration
       pages of the Nationwide Mutual Insurance Company
       policy was changed to Rosetta Buffetta. Effective
       July 14, 1995, the underwriting/rating status of
       Rosetta Buffetta was changed from married to
       unmarried.

       Rosetta Buffetta never signed any written authorization
       requesting uninsured motorist limits lower than bodily
       injury limits. J. Ferullo was the Nationwide agent who
       handled all changes and endorsement to the Policy in
       1994 and 1995. Mr. Ferullo is deceased and
       unavailable to provide any testimony regarding this
       matter.

       On February 14, 1997, Francesco Miriello sustained
       fatal injuries in a motor vehicle accident. The motor
       vehicle which struck Francesco Miriello was uninsured.
       At the time of the accident, Francesco Miriello resided
       with his daughter, Rosetta Buffetta. Following the
       accident in question, the Estate of Francesco Miriello
       made claim upon the Nationwide Mutual Insurance
       Company for recovery of uninsured motorist benefits.

Buffetta contends that Nationwide's liability for
uninsured motorist coverage under the policy should not be
limited to $25,000, because she never executed a writing
for that amount, which is $75,000 less than her $100,000
coverage for bodily injury. She contends that section 1734
of the Pennsylvania Motor Vehicle Financial Responsibility
Law ("MVFRL") requires her, a "named insured," to have
signed a written reduction authorization and that, since she
never signed such a written authorization, the policy must
be "reformed" so as to permit the same limits for uninsured
motorist coverage as for bodily injury.

Nationwide, on the other hand, contends that there can
be no reformation because the applicable statutory
provision does not provide a remedy for violation of its
provisions. Nationwide also argues that the statute has

                               4
been complied with because a written authorization for the
reduction of the uninsured motorist coverage had been
executed by the "named insured" of the policy, namely, Mr.
Buffetta.2

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over this action based
upon 28 U.S.C. SS 2201 and 1332(a). Nationwide is a
foreign corporation organized and existing under the laws of
Ohio. Ms. Buffetta resides in Pennsylvania. We have
jurisdiction over this appeal based upon 28 U.S.C.S 1291.

The District Court, exercising diversity jurisdiction in this
declaratory judgment action, was obliged to apply the
substantive law of Pennsylvania. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78-80 (1938). Because there was no
reported decision by the Pennsylvania Supreme Court or
any other Pennsylvania court addressing the precise issue
before it, it was the duty of the District Court to predict
how the Pennsylvania Supreme Court would interpret
section 1734 of the Pennsylvania MVFRL if presented with
this case. See, e.g., Pennsylvania Glass Sand Corp. v.
Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981).
In so doing, a federal court can also give due regard, but
not conclusive effect, to the decisional law of lower state
courts. See, e.g., Burke v. Maassen, 904 F.2d 178, 182 (3d
Cir. 1990). The opinions of intermediate appellate state
courts are "not to be disregarded by a federal court unless
it is convinced by other persuasive data that the highest
court of the state would decide otherwise." West v. AT&T
Co., 311 U.S. 223, 237 (1940).

We exercise plenary review over the District Court's
prediction of Pennsylvania law. See, e.g., Companie des
Bauxites de Guinee v. Insurance Co. of N. Am., 724 F.2d
369, 371-72 (3d Cir. 1983). In predicting how the highest
_________________________________________________________________

2. We note that amicus curiae briefs were filed in support of the position
of appellant by the Pennsylvania Trial Lawyers Association, and in
support of the position of appellee by the Pennsylvania Defense Institute.
Since they echo essentially the same arguments made by the parties, we
will not specifically comment on or refer to their submissions.

                                5
court of the state would resolve the issue, we must consider
"relevant state precedents, analogous decisions, considered
dicta, scholarly works, and any other reliable data tending
convincingly to show how the highest court in the state
would decide the issue at hand." McKenna v. Ortho Pharm.
Corp., 622 F.2d 657, 663 (3d Cir. 1980).

III. DISCUSSION

The District Court framed the issue before it as follows:

       Does the failure of the insurer to obtain new uninsured
       motorist election forms upon the change of the named
       insured from the husband to the wife following divorce
       require the reformation of the uninsured motorist
       coverage limits to the higher liability limits of coverage?

Opinion, September 20, 1999, at 2.

The District Court recited the facts relevant to its
discussion, emphasizing Mrs. Buffetta's conduct af ter the
policy was changed to her name:

       Nationwide was requested to maintain the same policy
       for the same vehicle at the same address, but with
       Rosetta Buffetta now listed as the named insured. She
       continued to receive billings with coverage listings. She
       paid the premiums and the policy was renewed at least
       three times before the accident. At no time did Rosetta
       Buffetta request any coverage changes.

Id. at 2-3.

The District Court noted that the provisions of the
MVFRL relating to the waiver of uninsured motorist ("UIM")
coverage, and reduction in coverage amounts, were
amended in 1990. The previous provisions had provided
that, without a written election, UIM coverage limits would
automatically default to the higher liability limits. The 1990
amendments, however, made only the failure to comply
with the requirements for total waiver of UIM coverage
subject to an automatic default provision, without providing
any automatic default or remedy in the section providing
for reduction of UIM coverage amounts. The statutory
provisions regarding total waiver of UIM coverage, and
reduction in coverage, now read as follows:

                                6
       (c.1) Forms of waiver. -- Insurers will print the
       rejection forms required by subsections (b) and (c) on
       separate sheets in prominent type and location. The
       forms must be signed by the first named insured and
       dated to be valid. The signatures on the form may be
       witnessed by an insurance agent or broker. Any
       rejection form that does not specifically comply with
       this section is void. If the insurer fails to produce a
       valid rejection form, uninsured or underinsured
       coverage, or both, as the case may be, under that policy
       will be equal to the bodily injury liability limits . On
       policies in which either uninsured or underinsured
       coverage has been rejected, the policy renewals must
       contain notice in prominent type that the policy does
       not provide protection against damages caused by
       uninsured or underinsured motorists. Any person who
       executes a waiver under a subsection (b) or (c) shall be
       precluded from claiming liability of any person based
       upon inadequate information.

75 Pa. Cons. Stat. S 1731(c.1) (1996) (emphasis added).

       Request for lower limits of coverage:
       A named insured may request in writing the issuance
       of coverages under section 1731 (relating to
       availability, scope and amount of coverage) in amounts
       equal to or less than the limits of liability for bodily
       injury.

Id. S 1734.

The District Court examined section 1734 in light of the
parties' arguments. Both parties characterized the issue as
one of "reformation" of the policy so as to provide Rosetta
Buffetta with $100,000 in uninsured motorist coverage
rather than the $25,000 of coverage that had been
authorized in writing by Mr. Buffetta.

The District Court expressed skepticism as to its ability
to reform the policy to the higher UIM limits absent a
statutory provision to that effect. It noted that in Salazar v.
Allstate Insurance Co., 702 A.2d 1038 (Pa. 1997), and
Donnelly v. Bauer, 720 A.2d 447 (Pa. 1998), the
Pennsylvania Supreme Court construed certain notice
provisions relating to UIM coverage and held that an

                               7
insured could not obtain reformation of coverage unless the
MVFRL specifically provided that remedy. The District
Court noted that, while the Pennsylvania legislature
provided that a total waiver of uninsured motorist coverage
would be ineffective in the absence of a valid rejection form
and would automatically default to the bodily injury limits
-- thus providing a remedy in that situation -- the
statutory section applicable to the instant situation,
namely, section 1734, contains no such remedy. However,
the District Court did not resolve the matter on this basis,
but proceeded to address Nationwide's other argument: that
there had been no violation of section 1734 because the
section only requires a written authorization request for the
lower UIM limits, and Saverio Buffetta, a named insured,
had signed such an authorization form. The District Court
credited this argument, concluding:

       I find that the change which actually listed her on the
       declaration pages after the divorce did not require a
       new election of coverage to be signed in order to
       continue the same policy coverage. As in the case of
       Kimball v. Cigna Ins. Co., 660 A.2d 1386 (Pa. Super.
       1995), Rosetta Miriello Buffetta was initially listed as a
       driver under the policy. Under the policy terms, she
       enjoyed the same status as a named insured. Saverio
       Buffetta was initially the named insured on the policy
       when he elected, in writing, the lower limits of
       uninsured motorist coverage. When Rosetta Miriello
       Buffetta assumed the policy and became the listed
       insured, she took no steps to change the policy
       provisions for more than three years. During that time,
       she received premium and overage notices and paid
       premiums every six months. In doing so, she
       acquiesced in the coverage that had been selected.

Opinion, at 6.

We will affirm the District Court's order essentially for the
reasons stated therein.3 We note that while the issue of
_________________________________________________________________

3. We note, while not necessary to our ruling, that we do not subscribe
to the District Court's view that Ms. Buffetta enj oyed "named insured"
status when she was merely a driver under the policy. The policy clearly

                               8
"reformation" of the policy is implicated by the parties'
arguments and that the pronouncements of the
Pennsylvania Supreme Court on this issue appear to favor
Nationwide's position, we agree with the District Court's
analysis that there was no section 1734 violation, and thus
we need not add our voice to the ongoing discussion of
policy reformation in the Pennsylvania courts.4 We base our
affirmance on the unique set of facts presented and the
absence in the statutory language of any requirement for a
new written authorization to be submitted by Ms. Buffetta
in this factual setting.

We start with the statutory language we have quoted
above. The statute, by its terms, does not require anything
to be done by an insurer to permit the reduction in the
amount of UIM coverage under a policy. Rather, section
1734 provides that "a named insured may request in
writing the issuance of coverages . . . in amounts equal to
or less than the limits of the liability for bodily injury."
Unlike section 1731, section 1734 does not dictate that the
opportunity for reduction, or a form to that effect, be
presented when a policy is issued. It merely provides that
_________________________________________________________________

provides that she was an "insured," but she was not listed as a "named
insured," and does not appear to even be a "policyholder," as defined.
However, the policy was addressed to her insofar as coverage and other
obligations are concerned, because she was included in the concept of
"you" or "your" under the policy as spouse of the named insured. We
view the District Court's statement as incorrect, but do not view it as
pivotal to its, or our, reasoning or conclusion.

4. Even as the parties were proceeding toward argument in this case,
they provided us with an opinion of the Pennsylvania Superior Court,
which in May determined that the absence of a remedy in the section
before us, section 1734, prevents reformation, consistent with the
Pennsylvania Supreme Court's rulings in Salazar and Donnelly. See
Lewis v. Erie Ins. Exch., 753 A.2d 839 (Pa. Super. Ct. 2000). In addition,
the parties filed a motion jointly requesting that we certify to the
Supreme Court of Pennsylvania the issue of whether there is a remedy
for the alleged failure of the insurer to obtain an election of the lower
limits of uninsured motorist coverage pursuant to section 1734 under
the court's analysis in Donnelly and Salazar. Because our basis for
affirmance does not involve resolution of that issue, we will decline to
certify the issue as requested.

                               9
a reduction of this kind may be accomplished, but only by
a writing which constitutes a request by a named insured.

Interestingly, the case law that has developed regarding
this section, which Ms. Buffetta relies upon, has arisen in
a different context. In each case, the insurer has claimed
that a reduction was authorized, but the argument has
focused on whether there was in fact a signed writing that
constituted a valid, effective request of a named insured for
the reduction. In the instances in which the insured has
been successful, it has been based upon the absence of a
valid written request for reduced coverages signed by a
named insured. See Nationwide Ins. Co. v. Resseguie, 980
F.2d 226 (3d Cir. 1992) (no reduction where there was no
written request signed by a named insured); Motorists Ins.
Cos. v. Emig, 664 A.2d 559 (Pa. Super. Ct. 1995) (agent's
completion of form did not satisfy statutory requirement for
written request of insured); Botsko v. Donegal Mut. Ins. Co.,
620 A.2d 30 (Pa. Super. Ct. 1993) (written request for lower
coverage ineffective where no evidence that insured was
advised of coverage mandated by statute before signing
authorization in favor of lesser coverage).

Here, there was a valid written request executed by
Saverio Buffetta. The only issue is whether it is binding on
Rosetta Buffetta. Given this setting, we agree with the
District Court that the Pennsylvania Superior Court's ruling
in Kimball v. Cigna Insurance Co., 660 A.2d 1386 (Pa.
Super. Ct. 1995), provides the best insight into the
probable resolution of this issue by the Pennsylvania
courts.

In Kimball, plaintiff was listed as a driver under her
father's policy, but her mother was the only "named
insured." Her mother executed a form reducing the
uninsured motorist coverage limits in 1990. In 1991,
plaintiff purchased a vehicle, and the "endorsement"
portion of the policy added her as a "named insured."
Plaintiff was injured by an uninsured motorist in 1992 and
contended that she was not bound by the election that her
mother had made for reduced coverage and that, when she
was added to the policy after the election, she should have
been informed as to the amount of coverage available and
required to execute a written request for lower coverage

                               10
under section 1734. The Pennsylvania Superior Court cited
authority from common pleas courts and federal court
cases to the effect that one in plaintiff 's position was bound
by the writing signed by another named insured. The court
noted that one in plaintiff 's position, upon becoming a
named insured and receiving an endorsement amending the
policy that listed her as a named insured and indicated the
amount of coverage, had an obligation to act:

       At bar, albeit the plaintiff was not listed as a"named
       insured" at the time her mother executed a "sign down"
       form to reduce uninsured/underinsured coverage, she
       was a "named insured" when the "endorsement"
       amending the policy and listing her as a "named
       insured" was received at the Kimball household.
       Specifically, the amendment indicated in clear
       language that the uninsured motorist coverage stood at
       $100,000 and no higher. However, no action was taken
       by the plaintiff to rectify this level of coverage. She
       could have increased coverage under her mother's
       policy (with accompanying premium increases) or
       secured her own separate policy should her mother not
       be amenable to the increased coverage and additional
       cost associated therewith. The plaintiff took no action
       on either front.

       Moreover, the policy limits remained in effect for two
       renewal periods without any effort on the plaintiff 's
       part to increase coverage beyond the $100,000.00 limit
       for uninsured/underinsured insurance. Rather, the
       premiums (at the lower rate) continued to be paid
       without question or complaint to the Cigna agent about
       the level of coverage. Under this scenario, as is
       consistent with 75 Pa. C.S.A. S 1791, the payment of
       the renewal premiums (which here occurred at least
       twice while the plaintiff was a "named insured")
       evidences [the plaintiff 's] actual knowledge and
       understanding of the availability of these benefits and
       limits as well as the benefits and limits . . . selected.

       Accordingly, if the plaintiff did not accept her
       mother's election, upon receipt of the policy with the
       lower limit and lower premiums, she could have
       contacted the insurance company, informed them of

                               11
       the dissatisfaction with the amount of
       uninsured/underinsured coverage and requested it be
       corrected or obtained another policy on her own.
       Instead, the plaintiff accepted the policy with the lower
       limits without complaint and permitted payment of the
       lower premium without incident. To find that the
       plaintiff is not bound by her mother's election and
       remaining silent on the issue of increased coverage,
       while reaping the benefits of reduced rates, would be to
       reward inaction. Here, the plaintiff had the means and
       opportunity to avoid any insurance shortfall, but she
       took no action to remedy the matter.

Kimball, 660 A.2d at 1388-89.

We realize that the issue before us is not precisely the
situation in Kimball, but, drawing on the Pennsylvania
Superior Court's repeated references to a later named
insured's being bound by having understood the policy
limits and acquiesced in them by paying lower premiums,
we conclude that the instant factual setting is sufficiently
analogous to Kimball to require the same result.5 Ms.
Buffetta asked for the policy to be in her name and received
notices referencing policy limits. She paid premiums based
on those limits that were obviously less than if the
_________________________________________________________________

5. Interestingly, the reasoning of one of the cases relied upon by the
Pennsylvania Superior Court could have led it to a different result
(although not one that would follow here). In Groff v. Continental
Insurance Co., 741 F. Supp. 541 (E.D. Pa. 1990), Judge Huyett held that
where one named insured had executed a reduction authorization, but
the other had not, a third person insured under the policy, not a named
insured, would be bound by the reduction. However, the court noted
that a dilemma would be presented if the one actually claiming under
the policy was one of the named insureds. See id. at 548-49. In Kimball,
the Pennsylvania Superior Court did not concern itself at all with the
fact that the plaintiff who was injured and was seeking to be relieved of
the reduction was in fact a named insured who had not executed a form
authorizing the reduction. Here, since the injury was to Ms. Buffetta's
father, the Groff situation is presented. The court in Kimball also relied
upon a case decided by the Court of Common Pleas of York County that
references a "one policy, one coverage" reality, noting that if different
insureds desire different coverages, they should opt to have separate
policies. See Kimball, 660 A.2d at 1387-88 (discussing Liberty Mut. Fire
Ins. Co. v. Lindsey, 3 Pa. D. & C.4th 659 (C.P. York County 1989)).

                                12
uninsured motorist coverage had been $100,000 instead of
the stated $25,000.

While we concede that a policy argument could be made
to the effect that a new named insured should always have
his or her voice count as to whether a reduced uninsured
motorist coverage is requested, this is not evident in the
statutory language, nor was it expressed in Kimball. As we
noted above, the statute requires only that a waiver form be
provided upon issuance of a policy. There is no statutory
requirement that an insured be given a reduction
authorization form without the insured's having requested
one. The statute is written in permissive terms, leaving it to
a named insured, who "may" request reduced coverage. The
option exists to request such a reduction and, we submit,
Kimball was decided on the basis that a later named
insured, upon being added to the policy, could have notified
the insurance company that she did not want to be bound
by another's election of reduced coverage.

We also view the Pennsylvania Supreme Court's
reasoning in its recent opinions in Salazar and Donnelly
regarding the issue of "reformation" to support the way in
which we approach the statute before us. Even where
defendant insurance companies have violated the policy
notice requirements of the Pennsylvania MVFRL, the
Pennsylvania Supreme Court has declined to provide a
remedy for the insured by, for example, construing the
policy against the insurer. Instead, the court has adhered
strictly to the statutory language, and, where no remedy is
provided, it has refused to create one. See Salazar, 702
A.2d at 1044; Donnelly, 720 A.2d at 454. 6 As a federal court
_________________________________________________________________

6. Judge Caputo of the District Court for the Middle District of
Pennsylvania recently examined the difference between the requirements
for waiving, and for reducing, UIM coverage and noted this trend as well:

         Recent decisions by the Supreme Court of Pennsylvania have
         suggested an unwillingness on the part of the State's high court to
         entertain statutory interpretations that depart from the letter of
the
         text, even where the plaintiff is left without redress for an
injury
         under the statute.

Leymeister v. State Farm Mut. Auto. Ins. Co., 100 F. Supp. 2d 269, 272
n.3 (M.D. Pa. 2000) (citing and discussing Donnelly, 720 A.2d at 453-54,
and Salazar, 702 A.2d at 1044).

                                 13
sitting in diversity, we should be especially reluctant to
create new rights that neither the state legislature nor the
state courts have seen fit to recognize. See , e.g., Keystone
Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146, 147
(3d Cir. 1974) (noting that "our assigned role is to predict
and not to form state law").

We note, in addition, that the Salazar and Donnelly
opinions express concern for policies implicated by the
issue before us, namely, the legislative concern over the
increasing costs of automobile insurance, which the
Pennsylvania Supreme Court in Donnelly characterized as
"the public policy which is to be advanced when
interpreting the statutory provisions of the MVFRL."
Donnelly, 720 A.2d at 452. In reasoning that it would not
provide a remedy not specifically set forth in the MVFRL,
the Donnelly court relied in part on policy considerations:

       If this Court were to fashion a remedy not expressly
       provided for in the MVFRL, this Court would
       essentially contravene the cost containment policy
       behind the MVFRL because allowing appellants the full
       tort coverage they seek would result in giving appellant
       something for which no individual has paid, which in
       turn, would result in insurance companies passing on
       this extra cost to all other insureds.

Id. at 454. As we have noted, the Pennsylvania Superior
Court in Kimball was similarly concerned, as we must be
here, with this policy by ruling that the insured should
receive the coverage for which she paid.

Accordingly, we predict that the Pennsylvania Supreme
Court would hold that where the new named insured was
covered by the existing policy when the written reduction
was effected, and became a named insured with ample
opportunity to alter the coverage under the policy, having
received ongoing notice of the amount of coverage under
her policy, and having paid premiums that took such
coverage limits into account, she was bound by the
coverage choices made by the previous named insured
under the policy.

Accordingly, we will AFFIRM the order of the District
Court.

                                14
STAPLETON, J., dissenting:

I respectfully dissent.

In order to fashion a rational scheme from the
Pennsylvania statutes pertaining to voluntary
uninsured/under insured motorist coverage, I predict that
the Supreme Court of Pennsylvania would hold that
"[u]nder 75 Pa. Cons. Stat. S 1731(a) (1997), the amount of
UM coverage is automatically equal to the bodily injury of
a policy unless the insured effectively exercises the option
to lower or waive such coverage." Travelers Indem. Co. of
Illinois v. DiBartolo, 171 F.3d 168, 170 (3d Cir. 1999).
Further, I think it clear that in order for there to be an
effective exercise of the option to lower the UM coverage,
there must be a written request signed by "a named
insured." 75 Pa. Cons. Stat. Ann. S 1734 (1999). The more
difficult issue presented is how these principles would be
applied by the Pennsylvania Supreme Court in the factual
setting of this case, one that must be quite common.

Prior to July 10, 1995, Saverio Buffetta was the sole
named insured under Nationwide's policy No. 5837B93654.
While he was the named insured, he elected in writing to
have UM coverage lower than his bodily injury limits. On
July 10, 1995, he ceased to have any interest in the policy,
and Rosetta Buffetta, having purchased a car from Saverio
and having orally requested continuation of the insurance
coverage on that vehicle, became the sole named insured.
Because a central purpose of the statutory scheme is to
focus the attention of a real party in interest on the issue
of how much UM coverage should be secured, I believe the
Pennsylvania Supreme Court would hold that Nationwide's
responsibilities to Rosetta were the same as they would
have been had she applied for a new policy, given that she
signed neither a waiver nor a reduction form. I would hold
that Rosetta's UM coverage is equal to her bodily injury
coverage.

I find this situation materially different from that involved
in Kimball, where a daughter became an additional named
insured on her mother's policy and her mother's earlier
election of reduced UM coverage continued to be the
effective UM coverage limits of the mother's policy.

                               15
A True Copy:
Teste:

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

                               16
