The opinion of the court was delivered by: Stengel, J.
This is a diversity insurance contract action brought by Mr. & Mrs. Eric Reinert, citizens of Pennsylvania, against Nationwide Insurance Company for insurance proceeds stemming from an automobile accident which occurred in North Carolina.*fn1 The parties have filed cross-motions for partial summary judgment, limited to the issue of whether Pennsylvania or North Carolina substantive tort law applies for purposes of determining damages. For the reasons that follow, I will grant the defendant's motion and deny the plaintiff's motion.
In the afternoon of August 21, 2010, the Reinerts were travelling in their 1999 Toyota Sienna in North Carolina. Eric Reinert was driving and Brenda, his wife, was a passenger. A car operated by Andrea Slusher, a citizen of North Carolina, slammed into the Reinerts' car from the rear, which caused the Reinerts' car to strike the car in front of it. The impact caused Mr. Reinert to lose control of the car, leave the roadway, strike a guardrail, and come to rest facing the opposite direction of the highway. Mr. Reinert suffered serious injuries which include injuries to his leg, neck, back, jaw, ankle, thigh, Achilles tendon, and anxiety and depression. He required medical and surgical treatment and is likely to require ongoing treatment in the future.
The complaint alleges that Miss Slusher's negligence was the sole cause of the accident. Miss Slusher is insured by Allstate and the policy provided liability insurance coverage with a $100,000 limit per person. The plaintiff's liability claims against Miss Slusher were settled, with Nationwide's consent, by a tender of the full available liability limits.
At the time of the accident, the Reinerts had a multi-vehicle insurance policy in full force and effect with Nationwide. That policy included underinsured*fn2 motorist's coverage in the amount of $250,000 per person on a full tort and non-stacked basis. Mr. Reinert brought this action for underinsured motorist coverage pursuant to the terms of his insurance contract with Nationwide for any sums awarded him as damages that are in excess of the insurance coverage paid to Mr. Reinert under Miss Slusher's Allstate policy.
Mr. Reinert has incurred medical expenses and wage loss, which have been covered by payment of first party benefits under the Nationwide policy, which exceed the gross amount billed of $163,229 for medical benefits and the gross amount of $92,000.00 for wage loss. N.T. 11/02/12 at 14. Specifically, medical benefits in the amount of $65,316 have been paid, and wage loss benefits in the amount of $74,150.40, representing 80% of lost wages, have been paid. Id.
A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials. FED.R.CIV.P. 56(c)(1)(A). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has exceeded the mere scintilla of evidence threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The central issue in the parties' motions for partial summary judgment is whether Pennsylvania or North Carolina substantive tort law applies for purposes of determining damages. It is well established that a district court in a diversity action will apply the choice of law rules of the forum state in determining which state's law will be applied to the substantive issues before it. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941); Huber v. Taylor, 469 F.3d 67, 73 (3d Cir. 2006).
Prior to Griffith v. United Airlines, Inc., 203 A.2d 796 (Pa. 1964), Pennsylvania choice-of-law rules were the laws of lex loci contractus (place of contract) and lex loci delicti (place of injury). Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227 (3d Cir. 2007). In Griffith, the Pennsylvania Supreme Court abandoned the strict lex loci delicti rule, and adopted a "more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." Griffith, 203 A.2d at 805-806. The Court of Appeals for the Third Circuit noted that the flexible Griffith rule combines the "approaches of both [the] Restatement II (contacts establishing significant relationships) and 'interests analysis' (qualitative appraisal of the relevant states' policies with respect to the controversy).'" Hammersmith, 480 F.3d at 231 (quoting Melville v. Am. Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir. 1978)); see also Berg Chilling Systems, Inc. v. Hull Corp., 435 F.3d 455, 463 (3d Cir. 2006).
Although Griffith, which dealt with a tort action, abandoned the lex loci delicti rule, the Pennsylvania Supreme Court has not yet applied the Griffith standard to a contract action. Hammersmith, 480 F.3d at 228 (citing Budtel Assocs., LP v. Cont'l Cas. Co., 915 A.2d 640 (Pa. Super. 2005)). It is thus not apparent whether the lex loci contractus rule is still considered Pennsylvania law. Id. at 227. The majority of authorities at both the state and federal level, however, have applied the Griffith standard to contract actions. Id. at 227-228 (citing Gen. Star Natl. Ins. Co. v. Liberty Mut. Ins. Co., 960 F.2d 377 (3d Cir. 1992); Compagnie des Bauxites de Guinee v. Argonaut-Midwest Ins. Co., 880 F.2d 685 (3d Cir. 1989); Am. Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71 (3d Cir. 1985); Wilson v. Transport Ins. Co., 889 A.2d 563 (Pa. Super. 2005)); McCabe v. Prudential Prop. & Cas. Ins. Co., 514 A.2d 582 (Pa. Super. 1986); but see Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 434 (3d Cir. 2006) (citing Crawford v. Manhattan Life Ins. Co., 221 A.2d 877, 880 (1966) (an ...