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November 21, 1980


The opinion of the court was delivered by: GILES


This is a diversity action arising from an accident in 1976 in which plaintiff's car was allegedly rear-ended by another car, causing injuries to his chest, back, and internal organs. Defendant has now filed two motions, one for reconsideration of a denial of a prior motion for partial summary judgment and the other in limine as to the admission as evidence at trial the fact that plaintiff was involved in prior accidents.

 The Motion for Reconsideration

 This motion poses the question whether an automobile owner covered by Pennsylvania no-fault insurance may recover punitive damages from his insurer in a basic contract action for payment of a claim. Count I of the complaint demands payment of medical expenses and lost wages. Count II demands punitive damages for alleged malicious refusal to pay the claims.

 Under the Rules of Decision Act, 28 U.S.C. § 152, and Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), state law controls in diversity cases. The United States Supreme Court has long ruled that in determining state law when the highest court of the state has not spoken, "an intermediate appellate state court. . . is a datum for ascertaining state law which is 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." Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 1782, 18 L. Ed. 2d 886 (1967) (quoting West v. AT&T Co., 311 U.S. 223, 237, 61 S. Ct. 179, 183, 85 L. Ed. 139 (1949)) (Bosch Court's emphasis). Therefore, plaintiff's argument that Smith not be followed because it was decided by an intermediate court amounts to but a plea that this court somehow overrule or ignore the dictates of Bosch. Plaintiff's argument that Smith be disregarded because it was a panel decision does not amount to "persuasive data."

 Further, it must be noted that subsequent to Smith, a different four-judge panel reached the identical result in Gurnick v. Government Employees Insurance Co., 278 Pa. Super. 437, 420 A.2d 620 1979 (Pa.Super.Ct.1980). (Judge Hoffman dissented on the ground that the issue was not appealable, inter alia, on the ground that "because this case presents the same issue as Smith, there is no need to reaffirm that decision." Id. dissent, n.5.)

 There being no genuine issue as to any material fact, this court adopts Judge McGlynn's post-Smith analysis in Allen v. Mic Life Insurance Co., No. 80-116, slip op. at 3 (E.D.Pa. May 2, 1980) (dismissing claims for punitive damages), and the holding that "such clear pronouncements of the law by Pennsylvania courts mandate dismissal" of the punitive damage claim. See Mazzula v. Monarch Life Insurance Co., 487 F. Supp. 1299 (E.D.Pa.1980). See also Bochner v. Quitman, 87 F.R.D. 621 (E.D.Pa. 1980) (order dismissing exemplary damage claim). For these reasons, defendant's motion for partial summary judgment is granted.

 The Motion to Admit Evidence

 Defendant also moves to admit as evidence at time of trial facts relating to other accidents involving plaintiff. Such evidence would be proffered in an effort to show that plaintiff is "claim-minded." Defendant alleges that plaintiff has made claims in seven other accidents in the last nine years. Three accidents were falls in plaintiff's house occurring in 1971. One was a rear-end collision in 1974. The remaining incidents occurred in 1972, 1977, and 1979. The details of these three incidents are unclear, but apparently one of these was yet another vehicular accident.

 Defendant asserts that, as in the present case, plaintiff was the only eyewitness to four of the incidents-the home falls and the 1974 rear-end collision-and also that, as here, there is no police report for the 1974 accident.

 Plaintiff counters that this proffered evidence does not show a pattern of similar claims. In particular, he states that there were several other eyewitnesses to the prior rear-end collision which involved circumstances significantly different from those in this action. Finally, plaintiff argues that such evidence would be irrelevant and prejudicial.

 Where it has been proved that a party brought previous claims which were similar in nature and fraudulent, most courts have admitted the evidence of the former claims on the ground that it is strongly relevant to falsity of the current claim. McCormick, supra, § 196 at 466. Here, inasmuch as there is no proof by defendants that the plaintiff's other claims were ...

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