                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/444


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                                                      NOT PRECEDENTIAL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

                                              2
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.




                                              3
TO THE CLERK:

          Kindly file the foregoing opinion.



                                      /s/ Edward R. Becker
                                             Circuit Judge




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