Sunday, November 25, 2007

"Erie Guessing" In Federal Foreclosure Rescue Scam Litigation

Before I start, let me say that this post really addresses Federal court litigation involving any issue or claim which has its source in state substantive law, among which are some of the issues common to foreclosure rescue, sale leaseback (or sale buy back) arrangements (including, but not limited to, the doctrines of: equitable mortgage, substance over form, and constructive & resulting trusts, as well as statutory causes of action pursuant to state consumer protection, usury, and other statutes).

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Let's say you are an attorney representing a homeowner who got screwed over in a foreclosure rescue, sale leaseback (or buyback) transaction. Let's also say that, for whatever the reason, the case is being litigated in a Federal court (ie. maybe because you filed it there in the first place - you may have Federal Truth In Lending Act ("TILA") claims; maybe the homeowner filed for Federal bankruptcy protection and the case was filed as an adverserial proceeding in connection with the bankruptcy case; maybe because, although you filed the case in state court, the foreclosure rescue operator or other defendant successfully had the case transferred into a Federal court - possibly due to the Federal causes of action (ie. TILA) contained in the lawsuit).

Among the causes of action included in the lawsuit is a request that the court invoke the common law doctrines of "equitable mortgage" and/or alternatively, the "substance over form" doctrine and declare that the transaction is an equitable mortgage / disguised loan (and possibly, a usurious equitable mortgage / disguised loan if the recharacterized transaction violates the state usury statutes).

You've done all your research of the state case law from your home state applicable to this type of a transaction and, while you've found a number of equitable mortgage doctrine decisions from your state's judiciary (from the state high court and/or, where the state has (an) intermediate level appellate court(s), from that (those) courts), you can't find a case that involves either the exact fact pattern, or one that is reasonably analogous, to the fact pattern in your client's case.

However, you have found cases that are either directly on point or reasonably analogous from other states. Further, you have also found language supporting your position, contained in one of a number of legal treatises, scholarly works, etc. that are floating around out there in law schools, law libraries, etc. that are generally considered to be respected secondary sources of law by legal scholars.

Question:

When making your case that the arrangement your financially strapped, vulnerable homeowner / client entered into is an equitable mortgage / disguised loan, do you cite the cases from the other jusrisdictions and the language that you found in one of the many well-known and respected legal treatises, or do you simply limit yourself to the cases from your home state, even though they may not involve a fact pattern that is directly on point or closely analogous to the fact pattern your client is entangled in?

Rather than trying to come up with an answer to the question, I will simply provide the following information and hope that some may find it useful in arriving at your own conclusion.

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The Erie Doctrine

The Erie Doctrine, the legal doctrine that came from the U.S. Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), is a legal doctrine which, to this day, seems to be the subject of much commentary, debate, interpretation and (some may say) misinterpretation. Any attempt to fully discuss this doctrine is also far beyond the scope of this blog. However, the aspect of the Erie Doctrine that applies in the context of this post appears to be pretty straightforward.


Under Erie, in litigation that involves issues of state law, it has been said that the federal court's task is not to reach its own judgment regarding the substantive state law, but simply to ascertain and apply the state law (while the Federal courts are to apply state law to resolve substantive questions, they are to apply federal law to resolve procedural and evidentiary issues). Accordingly, when deciding whether or not a foreclosure rescue, sale leaseback transaction is an equitable mortgage / disguised loan, the Federal courts are duty bound to look to state law and apply it either in the way the issue has been determined by the highest court of the state or as it would be by that court if the present case were before it.

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Making An Erie Guess

What happens if there is no controlling state decision that is binding on the Federal courts. What is a Federal District or Bankruptcy Court supposed to do? (In order to keep this post simple, we'll assume that your client is in a state where the state law does not allow a Federal District or Bankruptcy court to certify an issue of state law directly to the highest court of the state for a determination of what the applicable state law is. We will also assume that the intermediate state appellate courts of your state (if any), like the state high court, have not spoken on the issue).

When there is no controlling state court decision to apply, it is up to the Federal court to attempt to predict what the state's highest court would do. It has been said that the court is to make an "informed prophecy" -- to discern the rule the state's highest court would be most likely to follow, even if the Federal court's independent judgment might differ. The making of this prediction, or "informed prophecy", is often referred to as making an "Erie guess."

In making the Erie guess, it has been said that the Federal courts are "to seek to eliminate inconsistency between federal and state courts in the application of state substantive law". Nationwide Ins. Co. v. Patterson, 953 F.2d 44, 47 (3d Cir. 1991). This elimination, along with the discouraging of forum shopping, have been said to be the dual aims of the Erie Doctrine.

Regarding the restrictions imposed on the Federal courts when making an Erie guess, one court said "What a federal court ... cannot do is simply substitute its judgment for that of the state court." Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002-03 (4th Cir. 1998) [citation omitted].

When a Federal court ventures on the making of an Erie guess, the excerpts from the following selected cases from the various Federal Courts of Appeals may offer some guidance as to what sources of law a federal court will look to in making its prediction of what the state law is. It will hopefully also give you and your aggrieved client who is stuck in a foreclosure rescue, sale leaseback or other similar arrangement some guidance as to whether or not to use the relevant case law from other jurisdictions, pronouncements made in treatises, scholarly works, etc. when there is no case law from one's home state that is either directly on point or very similar to the fact pattern being litigated.

Note: Most, if not all, of the following cases involved applying the Erie Doctrine in Federal diversity jurisdiction cases. While there may be a belief among some that Erie only applies in diversity jurisdiction cases, and only applies to Article III courts (the Federal bankruptcy courts, for example, are not Article III courts), others have concluded that Erie applies in any Federal case which has its source in state law. See, for example, Edwards v. Hovensa, LLC, 497 F.3d 355 (3rd Cir. 2007), in which the 3rd Circuit recently made the following observation regarding the application of the Erie Doctrine in Federal litigation (this case involved litigation in the Virgin Islands):

  • "The fact that the District Court of the Virgin Islands is an Article IV court rather than an Article III court does not preclude the application of Erie. For example, the Erie doctrine is applied by bankruptcy courts. See generally Thomas E. Plank, The Erie Doctrine and Bankruptcy, 79 Notre Dame L. Rev. 633 (2004). In Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540-41 n.1 (2d Cir. 1956), the court stated that "the Erie Doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in state law."

If one has any doubts about Erie's applicability to any issue or claim which has its source in state law, consultation with counsel expert in the Erie Doctrine may be necessary.

To find out which Federal appeals court has jurisdiction over appeals from the lower Federal courts in your state, you can check the Circuit Map.

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1st Circuit Court of Appeals:

1- North Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35 (1st Cir. 2001):

  • "In the absence of a definitive ruling by the highest state court, a federal court may consider 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 . . . ." Gibson v. City of Cranston, 37 F.3d 731, 736 (1st Cir. 1994) (citation and internal quotation marks omitted). Our duty is to make an informed prophecy -- to "discern the rule the state's highest court would be most likely to follow under these circumstances, even if our independent judgment might differ." Ambrose v. New Engl. Ass'n of Schs. & Colls., 252 F.3d 488, 497-98 (1st Cir. 2001).

2- Ambrose v. New Engl. Ass'n of Schs. & Colls., 252 F.3d 488 (1st Cir. 2001):

  • Our task, then, is to discern the rule the state's highest court would be most likely to follow under these circumstances, even if our independent judgment might differ. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996). In making this informed prophecy, we are guided, inter alia, by persuasive case law from other jurisdictions and relevant public policy considerations. Id.

3- Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996):

When attempting to make an "informed prophecy" as to how the state's highest court would rule in the same situation, the court observed:

  • [W]e seek guidance in analogous state court decisions, persuasive adjudications by courts of sister states, learned treatises, and public policy considerations identified in state decisional law. See Ryan v. Royal Ins. Co., 916 F.2d 731, 734-35 (1st Cir. 1990); Kathios v. General Motors Corp., 862 F.2d 944, 949 (1st Cir. 1988).

4- Gibson v. City of Cranston, 37 F.3d 731 (1st Cir. 1994):

In making an Erie guess as to the law of the State of Rhode Island in one case, the court made this observation:

  • [W]e believe that the proper analysis is informed by certain commentaries and decisions from outside Rhode Island. Michelin Tires (Canada), Ltd. v. First Nat'l Bank, 666 F.2d 673, 682 (1st Cir. 1981) ("In the absence of a definitive ruling by the highest state court, a federal court may consider 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, taking into account the broad policies and trends so evinced.") (citation and internal quotation marks omitted).

    The Restatement is an especially helpful source of guidance because Rhode Island courts frequently turn to the Restatement to fill gaps in state law. See, e.g., Bibby's Refrig., Heating & Air Cond. Inc. v. Salisbury, 603 A.2d 726, 729 (1992); Durapin, Inc. v. American Prods., Inc., 559 A.2d 1051, 1059 (1989).

5- Michelin Tires (Canada), Ltd. v. First Nat'l Bank, 666 F.2d 673, 682 (1st Cir. 1981):

In Erie guessing how Massachusetts law would be applied by the Supreme Judicial Court of Massachusetts, the court said:

  • In the absence of a definitive ruling by the highest state court, a federal court may consider "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," taking into account the broad policies and trends so evinced. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir. 1980).
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2nd Circuit Court of Appeals:

DiBella v. Hopkins, 403 F.3d 102 (2nd Cir. 2005):

In Erie guessing on how the New York Court of Appeals would determine state law in New York, the court said the following:

  • Our prediction is based on several sources. Principally, we consider the language of the state intermediate appellate courts to be helpful indicators of how the state's highest court would rule. See [Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000)]. Although we are not strictly bound by state intermediate appellate courts, rulings from such courts are a basis 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." West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 85 L. Ed. 139, 61 S. Ct. 179 (1940); Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317, 321 (2d Cir. 1999).

    We also look to the language of other jurisdictions on the same issue and other sources the state's highest court might rely upon in deciding the question, including scholarly writings. Michalski, 225 F.3d at 116.

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3rd Circuit Court of Appeals:

Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431 CA-3 (2006):

The court said the following when wrestling with Pennsylvania state law:

  • When there is no Pennsylvania Supreme Court decision directly on point, we are charged with predicting how it would resolve the question at issue. Travelers Indem. Co. of Illinois v. DiBartolo, 131 F.3d 343, 348 (3d Cir. 1997). In order to do so, we must take into consideration (1) what the Pennsylvania Supreme Court has said in related areas, (2) the decisional law of the Pennsylvania intermediate courts, (3) federal cases interpreting state law, and (4) decisions from other jurisdictions that have discussed the issue. Werwinski v. Ford Motor Co., 286 F.3d 661, 675 (3d Cir. 2002).

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4th Circuit Court of Appeals:

1- Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Bev. Co. of S.C., LP, 433 F.3d 365 (4th Cir. 2005):

In attempting to Erie predict South Carolina state law, the court commented:

  • In making that prediction, we may consider lower court opinions in South Carolina, the teachings of treatises, and "the practices of other states." Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999).

2- Wade v. Danek Med., Inc., 182 F.3d 281 (4th Cir. 1999):

In trying to Erie guess whether an equitable tolling rule is applicable in Virginia, the court said:

  • In predicting whether the Virginia Supreme Court would apply an equitable tolling rule, we are mindful of the general principle that, "in trying to determine how the highest state court would interpret the law, we should not create or expand that State's public policy." Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254, 260 (4th Cir.), cert. dismissed, 119 S. Ct. 634 (1998); see also St. Paul Fire & Marine Ins. Co. v. Jacobson, 48 F.3d 778, 783 (4th Cir. 1995) ("The federal courts in diversity cases, whose function it is to ascertain and apply the law of a State as it exists, should not create or expand that State's public policy.").

  • In the absence of any relevant Virginia law, we naturally look to the practices of other states in predicting how the Virginia Supreme Court would rule.

3- Wells v. Liddy, 186 F.3d 505, 528 (4th Cir. 1999):

  • To forecast a decision of the state's highest court we can consider, inter alia: canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state's highest court, well considered dicta, and the state's trial court decisions. See Liberty Mut. Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir. 1992).

4- Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997 (4th Cir. 1998):

Commenting on looking to the state intermediate appeals court for guidance when making an Erie guess at Maryland state law, the court said (in a diversity case):

  • When seeking such guidance we defer to a decision of the state's intermediate appellate court to a lesser degree than we do to a decision of the state's highest court. Nevertheless, we do defer. Indeed, the Supreme Court has specifically directed:

"where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other per suasive data that the highest court of the state would decide otherwise."

West v. A T & T, 311 U.S. 223, 237, 85 L. Ed. 139, 61 S. Ct. 179 (1940); accord, Hicks v. Feiock, 485 U.S. 624, 630 n.3, 99 L. Ed. 2d 721, 108 S. Ct. 1423 (1988); see also Stoner v. New York Life Ins. Co., 311 U.S. 464, 467, 85 L. Ed. 284, 61 S. Ct. 336 (1940) ("Federal courts, under the doctrine of Erie . . . must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently.").

  • Thus, a federal court must "present" persuasive data when it chooses to ignore a decision of a state intermediate appellate court that is directly on point. United States v. Little, 52 F.3d 495, 498 (4th Cir. 1995). What a federal court, sitting in diversity, cannot do is simply substitute its judgment for that of the state court. Id.

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  • Generally, only if the decision of a state's intermediate court cannot be reconciled with state statutes, or decisions of the state's highest court, or both, may a federal court sitting in diversity refuse to follow it.

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  • A federal court can depart from an intermediate court's fully reasoned holding as to state law only if "convinced" that the state's highest court would not follow that holding. West, 311 U.S. at 237.

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5th Circuit Court of Appeals:

Stanley v. Trinchard, 500 F.3d 411; (5th Cir. 2007):

The court stated the following when predicting what the applicable Louisiana state law is in one case (involving legal malpractice):

  • As no Louisiana case is directly on point, we must make an "Erie-guess" and predict how a Louisiana court would rule. In doing so, we may consult a variety of sources, including the general rule on the issue, and the rules in other states. Having now considered (1) the "general rule" evident from Louisiana court decisions in contexts other than legal malpractice, (2) decisions from other jurisdictions, and (3) general policy concerns, we predict that Louisiana would be more likely to follow the judgment rule than the payment rule when faced with a legal malpractice case like this one.

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6th Circuit Court of Appeals:

Combs v. Int'l Ins. Co., 354 F.3d 568 (6th Cir. 2004):

In considering how the Kentucky high court would decide an issue of state law, the court (in a diversity case) said that it must make:

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7th Circuit Court of Appeals:
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1- Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087 (7th Cir. 1999):
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When Erie guessing in a case involving the state substantive law of Wisconsin, the court observed:

  • [W]e attempt to predict how the Wisconsin Supreme Court would decide the issues presented here. Allen v. TransAmerica Ins. Co., 128 F.3d 462, 466 (7th Cir. 1997). Where the state supreme court has not ruled on an issue, decisions of the state appellate courts control, unless there are persuasive indications that the state supreme court would decide the issue differently. Id. In the absence of Wisconsin authority, we may consider decisions from other jurisdictions. Valerio v. Home Ins. Co., 80 F.3d 226, 228 (7th Cir. 1996).
2- Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630 (7th Cir. 2002):
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In commenting on how to approach deciding an issue of state substantive law, the court stated (in another diversity case):
  • Although we believe that the task of the federal court sitting in diversity is to ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now, we pause to emphasize that this determination in no way implies any erosion of our precedent that, in the absence of prevailing authority from the state's highest court, federal courts ought to give great weight to the holdings of the state's intermediate appellate courts and ought to deviate from those holdings only when there are persuasive indications that the highest court of the state would decide the case differently from the decision of the intermediate appellate court. See State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001); Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir. 1999); Allen v. Transamerica Ins. Co., 128 F.3d 462, 466 (7th Cir. 1997). See generally E. Chemerinsky, Federal Jurisdiction § 5.3 at 323-26 (3d ed. 1999) (discussing Supreme Court authorities); Yonover, supra 38 DePaul L. Rev. 1, at 5 n.21.
3- Harper v. Vigilant Ins. Co., 433 F.3d 521 (7th Cir. 2005):
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The court commented on its duty under Erie as follows involving a guess as to the applicable Missouri law (in a case involving insurance policy provision interpretation):
  • Where the Missouri Supreme Court has not confronted a particular issue (e.g., whether the term "household" as used in an insurance contract is ambiguous), we are called upon to predict how that court would decide if presented with the same question. See Smith v. Equitable Life Assurance Soc'y of the United States, 67 F.3d 611, 615 (7th Cir. 1995). In the absence of a Missouri Supreme Court ruling on an issue, the decisions of the Missouri Court of Appeals will control unless there is persuasive evidence that the Missouri Supreme Court would rule differently. See Clarin Corp. v. Mass. Gen. Life Ins. Co., 44 F.3d 471, 474 (7th Cir. 1994).

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8th Circuit Court of Appeals:
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Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705 (8th Cir. 2004):
This case involved Iowa state law:

  • As the Iowa Supreme Court has not directly answered the question, we must predict how that Court would decide this unresolved issue of state law, using decisions from other jurisdictions as aids. See Gravquick A/S v. Trimble Navigation Int'l. Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003).

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9th Circuit Court of Appeals:
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1- Gravquick A/S v. Trimble Navigation Int'l. Ltd., 323 F.3d 1219 (9th Cir. 2003):

  • A federal court applying California law must apply the law as it believes the California Supreme Court would apply it. Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1300 (9th Cir.), amended by 136 F.3d 1208 (9th Cir. 1997). In the absence of a controlling California Supreme Court decision, the panel must predict how the California Supreme Court would decide the issue, using intermediate appellate court decisions, statutes, and decisions from other jurisdictions as interpretive aids. Id.; see also Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1045-46 (9th Cir. 2001).
2- Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958 (9th Cir. 2001):

  • When interpreting state law, federal courts are bound by decisions of the state's highest court. In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. However, where there is no convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state's intermediate appellate courts. Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996) (internal quotations and citations omitted).

3- Lewis v. Tel. Employees Credit Union, 87 F.3d 1537 (9th Cir. 1996):

  • "When interpreting state law, federal courts are bound by decisions of the state's highest court. `In the absence of sucha decision, a federal court must predict how the highest statecourt would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance." Arizona Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995) (quoting In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)). However, where there is no convincing evidence that the state supreme court would decide differently, "a federal court is obligated to follow the decisions of the state's intermediate appellate courts." Kirkland, 915 F.2d at 1239.
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10th Circuit Court of Appeals:
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1- Wade v. Emcasco Ins. Co., 483 F.3d 657 (10th Cir. 2007):
The 10th Circuit recently described its responsibility under Erie as follows:

  • "Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do." [Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003)]. In doing so, it may seek guidance from decisions rendered by lower courts in the relevant state, Progressive Cas. Ins. Co. v. Engemann, 268 F.3d 985, 988 (10th Cir. 2001), appellate decisions in other states with similar legal principles, United States v. DeGasso, 369 F.3d 1139, 1148 (10th Cir. 2004), district court decisions interpreting the law of the state in question, Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100, 1104-05 (10th Cir. 2002), and "the general weight and trend of authority" in the relevant area of law, MidAmerica Constr. Mgmt., Inc. v. Mastec N. Am., Inc., 436 F.3d 1257, 1262 (10th Cir. 2006) (internal quotation marks omitted). Ultimately, however, the Court's task is to predict what the state supreme court would do.
2- MidAmerica Constr. Mgmt., Inc. v. Mastec N. Am., Inc., 436 F.3d 1257, 1262 (10th Cir. 2006):

  • When the highest court of a state whose law is being applied in a diversity case has not decided the issue presented, we must determine what decision the court would make if faced with the same facts and circumstances. See Progressive Cas. Ins. Co. v. Engemann, 268 F.3d 985, 987 (10th Cir. 2001). In making that determination, we may “consider a number of authorities, including analogous decisions by the state Supreme Court, the decisions of the lower courts in the state, the decisions of the federal courts and of other state courts, and the general weight and trend of authority.” Id. at 988 (quotations and alteration omitted).

  • “[W]here jurisdiction rests solely on diversity of citizenship and there is no controlling decision by the highest court of a state, a decision by an intermediate court should be followed by the Federal court, absent convincing evidence that the highest court of the state would decide otherwise.” Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1132 (10th Cir. 2002) (quotations and alteration omitted).

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11th Circuit Court of Appeals:

1- Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir. 2005):

The court described its duty under Erie as follows (in another diversity case involving insurance policy provision interpretation):

  • The Florida Supreme Court has not spoken definitively on the issues before us, therefore, we look to relevant decisions of Florida's intermediate appellate courts. State Farm Fire & Casualty Co. v. Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004). A lack of explicit Florida case law on an issue does not absolve us of our duty to decide what the state courts would hold if faced with it. Arceneaux v. Texaco, Inc., 623 F.2d 924, 926 (5th Cir. 1980) (citations omitted). (In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.)

    "In the absence of precedents from Florida's intermediate appellate courts, however, we may consider the case law of other jurisdictions that have examined similar policy provisions." Steinberg, 393 F.3d at 1231 (citations omitted). Our objective is to determine issues of state law as we believe the Florida Supreme Court would, therefore a federal court attempting to forecast state law must consider whatever might lend it insight, including "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 Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir. 1980).

2- State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226 (11th Cir. 2004):

In applying Erie (in another insurance case), the court stated:

  • The Florida Supreme Court has not spoken definitively on the issue before us. In the absence of definitive guidance from the Florida Supreme Court, we follow relevant decisions of Florida's intermediate appellate courts. [Davis v. Nat'l Med. Enters., 253 F.3d 1314, 1319 n.6 (11th Cir. 2001)]. In the absence of precedents from Florida's intermediate appellate courts, however, we may consider the case law of other jurisdictions that have examined similar policy provisions.

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DC Circuit Court of Appeals:

Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (DC Cir. 1984):

The court, in attempting to Erie guess whether a certain tort action in a diversity jurisdiction case would be recognized under the local law of the District of Columbia, the court described its duty under Erie as follows:

  • As this action comes before us as a diversity case, we are, of course, obligated to apply District of Columbia law. See Anchorage-Hynning & Co. v. Moringiello, 225 U.S. App. D.C. 114, 697 F.2d 356, 360-61 (D.C. Cir. 1983) (holding that the principle of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), fully applies to federal courts in the District of Columbia when they exercise jurisdiction over state-created causes of action). District of Columbia law, however, is silent on the specific issue whether a plaintiff may maintain an action for diagnostic examinations in the absence of proof that he or she was physically injured.

  • The lack of clarity of tort law in this jurisdiction, however, does not absolve this court of the duty of resolving the issue in the manner which, in our best lights, we predict that the District of Columbia Court of Appeals would were it presented with the question. In light of general principles of tort law, the Restatement (Second) of Torts, and the law of other jurisdictions, we believe that the District of Columbia Court of Appeals would recognize such a cause of action.

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Posted by Home Equity Theft Reporter at 8:29 PM

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