On appeal from an order granting a motion to dismiss under Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in the complaint. Doe v. Doe, 973 F.2d 237, 238 (4th Cir. 1992). These facts are that Thomas Paul Jones was employed by Lend Lease to drive a truck on interstate routes.

Because the district court sat in diversity, we must apply South Carolina law and predict how the South Carolina Supreme Court would decide this issue.See Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). South Carolina law provides that automobile insurance carriers "shall . . . offer, at the option of the insured, underinsured motorist coverage up to the limits of the insured liability coverage."

We are therefore called upon to predict what the Supreme Court of Virginia would decide were the issue presented to it. See Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). We find no ambiguity in the instant statute and conclude that its plain meaning dictates that the cap on punitive damage awards applies to the action as a whole, and not to each defendant.

Accordingly, I would reverse the grant of summary judgment against Highlands. See Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992) (explaining that the function of this court in a diversity case is to resolve the state law issues as we predict the highest court in the state would). Even if existing Virginia law did not make the correct result in this case perfectly clear, the cases from other jurisdictions relied upon by the majority would provide little support for its result.

Where there is no case law from the forum state which is directly on point, the district court attempts to do as the state court would do if confronted with the same fact pattern. Wilson v. Ford Motor Co., 656 F.2d 960, (4th Cir. 1981); Empire Distributors of N.C. v. Schieffelin Co., 859 F.2d 1200, 1203 (4th Cir. 1988); Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). Only if the available state law is clearly insufficient should the court certify the issue to the state court. Smith v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 848 (1985).

The Supreme Court of Appeals of West Virginia has not addressed either issue, so the court must predict how the state high court would hold if confronted with these issues. See Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). In so doing, the court may rely on “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.”

Where there is no case law from the forum state which is directly on point, the district court attempts to do as the state court would do if confronted with the same fact pattern. Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir. 1981); Empire Distributors of N.C. v. Schieffelin & Co., 859 F.2d 1200, 1203 (4th Cir. 1988); Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). Only if the available state law is clearly insufficient should the court certify the issue to the state court.

Where there is no case law from the forum state which is directly on point, the district court attempts to do as the state court would do if confronted with the same fact pattern. Wilson v. Ford Motor Co. , 656 F.2d 960, (4th Cir.1981) ; Empire Distributors of N.C. v. Schieffelin & Co. , 859 F.2d 1200, 1203 (4th Cir.1988) ; Doe v. Doe , 973 F.2d 237, 240 (4th Cir.1992). Only if the available state law is clearly insufficient should the court certify the issue to the state court.

Where there is no case law from the forum state which is directly on point, the district court attempts to do as the state court would do if confronted with the same fact pattern. Wilson v. Ford Motor Co., 656 F.2d 960[] (4th Cir. 1981); Empire Distributors of N.C. v. Schieffelin & Co., 859 F.2d 1200, 1203 (4th Cir. 1988); Doe v. Doe, 973 F.2d 237, 240 (4th Cir. 1992). Only if the available state law is clearly insufficient should the court certify the issue to the state court. Smith v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 848 (1985).

Thus, the state courts have not had an opportunity to pass on the specific question, and the Court must "predict what the Supreme Court of [various states] would decide." Doe v. Doe , 973 F.2d 237, 240 (4th Cir. 1992). In doing so, the Court is guided by the Fourth Circuit's admonition that "a federal court in the exercise of its diversity jurisdiction should act conservatively when asked to predict how a state court would proceed on a novel issue of state law," Rhodes v. E.I. du Pont de Nemours & Co ., 636 F.3d 88, 97–98 (4th Cir. 2011), and the few federal cases that address the issue.