Dixon v. Nationwide Mutual Insurance

800 F.2d 422

Opinions

DONALD RUSSELL, Circuit Judge:

Following a request for en banc hearing of the appeal herein, a majority of the active judges of this Court voted to grant en banc hearing. The appeal was accordingly heard by the en banc court. After the hearing, a majority of the Court, consisting of Judges Russell, Widener, Hall, Chapman, Wilkinson, and Wilkins, voted not to certify the cause to the South Carolina Supreme Court but to affirm the judgments of the district court in the consolidated appeals herein on the majority panel opinion of Judge Emory M. Sneeden, as reported in 784 F.2d 1176.

Dissenting, Judges Winter, Phillips, Mur-naghan, Sprouse and Ervin would certify the issues in this case to the South Carolina Supreme Court; however, assuming a majority of the Court had not agreed to certification, Judges Phillips, Murnaghan, Sprouse and Ervin would sustain the constitutionality of South Carolina Code Annotated § 38-37-940(2) and would affirm the judgment of the district court in the Beck-ham case but would reverse the judgment in the Dixon case and remand it for a new trial for the reasons stated in Judge Phillips’ dissenting and concurring opinion, also reported in 784 F.2d 1176.

AFFIRMED.