NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0414n.06
No. 17-1402
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED LYNETTE DUNCAN, as Personal ) Aug 16, 2018 Representative of the Estate of David Duncan, ) DEBORAH S. HUNT, Clerk Deceased, ) ) Plaintiff-Appellant, ) ) MICHIGAN DEPARTMENT OF HEALTH ) AND HUMAN SERVICES, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Intervenor, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN v. ) ) LIBERTY MUTUAL INSURANCE ) OPINION COMPANY, ) ) Defendant-Appellee. ) )
Before: MOORE, COOK, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff Lynette Duncan, the late David
Duncan’s (“Duncan”) widow, is acting as the personal representative of Duncan’s estate (the
“Estate”). Duncan had sustained significant injuries in an automobile crash, and these injuries
resulted in his death a year later. At the time of the accident, Duncan had a no-fault insurer, Liberty
Mutual Insurance Company (“Liberty Mutual”). He was also a Medicare recipient. Liberty
Mutual, however, refused to cover Duncan’s medical expenses, which caused Medicare to make
conditional payments. Because Liberty Mutual refused to pay, Duncan brought an action in
Michigan state court, and the Estate pursued the action after his death. When Liberty Mutual No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
moved for summary judgment regarding whether the Estate can pursue double damages under the
Medicare Secondary Payer Act (the “Act”), 42 U.S.C. § 1395y(b)(3), the district court granted
Liberty Mutual’s motion. The Estate has appealed the district court’s judgment.
For the reasons explained below, we REMAND the action to the district court to consider
whether the Estate has standing.
I. BACKGROUND
This action arises from Medicare’s payment of Duncan’s medical expenses for his injuries
from an automobile crash on January 11, 2013. See R. 26 (Second Am. Compl. ¶ 5) (Page ID
#3186). At the time of the accident, Liberty Mutual was Duncan’s no-fault insurer. Id. ¶ 6 (Page
ID #3186). Duncan was also a Medicare recipient. Id. ¶ 22 (Page ID #3191). When Duncan died
on December 4, 2014, the Estate continued to pursue the action against Liberty Mutual. See id.
¶ 37 (Page ID #3195).
Because Liberty Mutual refused to cover Duncan’s medical expenses, Duncan filed this
action in Michigan state court. R. 45-4 (Mot. Ex. C, Compl. ¶ 9) (Page ID #3612). In Duncan’s
state-court action, a jury determined that the operation of a motor vehicle caused Duncan’s injuries,
which required Liberty Mutual to pay for Duncan’s medical expenses. See R. 20-3 (Notice
Removal Ex. PPPPP, J. at 2) (Page ID #2280). Liberty Mutual then notified Medicare on April 1,
2016, that “Liberty Mutual has been determined to be the primary payer in relation to the motor
vehicle accident on 1/11/13.” R. 45-24 (Mot. Ex. W, Letter at 1) (Page ID #4061). Medicare
responded to Liberty Mutual and informed Liberty Mutual that “Medicare ha[d] identified a claim
2 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
or number of claims for which [Liberty Mutual] ha[s] primary payment responsibility and
Medicare has made primary payment. Medicare must recover these payments from the entity
responsible for payment or, when payment has been made, from the entity/individual who has
received payment for these claims (see 42 U.S.C. 1395y(b)(2)).” R. 45-25 (Mot. Ex. X, Letter at
1) (Page ID #4063). In that letter, Medicare “identified $174,815.20 in conditional payments,” but
it had not made a final determination regarding the amount that Liberty Mutual owed. Id.
After receiving the jury verdict, the Estate amended its complaint to include a claim for
double damages under § 1395y(b)(3). R. 1-3 (Notice Ex. B, Am. Compl. at 5) (Page ID #20).
Liberty Mutual then removed the action to the United States District Court for the Eastern District
of Michigan because of the federal question. See R. 1 (Notice) (Page ID #1). In the district court,
both parties moved for partial summary judgment regarding the Estate’s claim under
§ 1395y(b)(3). R. 45 (Mot. at 26) (Page ID #3588); R. 46 (Mot. at 8–9) (Page ID #4092–93). The
district court granted Liberty Mutual’s motion and denied the Estate’s motion. R. 67 (Order) (Page
ID #4758). The Estate appealed the judgment. R. 72 (Notice) (Page ID #4765).
II. DISCUSSION
We examine de novo a district court’s grant of summary judgment. Schleicher v. Preferred
Sols., Inc., 831 F.3d 746, 752 (6th Cir. 2016). “Summary judgment is warranted only if the record
shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Wenk v. O’Reilly, 783 F.3d 585, 593 (6th Cir. 2015) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Fed. R. Civ. P. 56. We also “must
3 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
view the facts and any inferences reasonably drawn from them in the light most favorable to the
nonmoving party.” Griffith v. Coburn, 473 F.3d 650, 655 (6th Cir. 2007) (quoting St. John v.
Hickey, 411 F.3d 762, 768 (6th Cir. 2005)).
For standing, a plaintiff needs to show that “(1) [he or she] has suffered an ‘injury-in-fact’
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 523–24 (6th Cir. 2001) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000)). The Supreme
Court has stated that “[t]he party invoking federal jurisdiction bears the burden of establishing
these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
For injury-in-fact, there are two elements: the injury must be particularized and concrete.
Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1548 (2016). To be a particularized injury,
“it must affect the plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. at 560
n.1). However, regardless of whether a plaintiff’s injury is particularized, a plaintiff needs “some
concrete interest that is affected by the deprivation.” Id. at 1552 (quoting Summers v. Earth Island
Inst., 555 U.S. 488, 496 (2009)).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0414n.06
No. 17-1402
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED LYNETTE DUNCAN, as Personal ) Aug 16, 2018 Representative of the Estate of David Duncan, ) DEBORAH S. HUNT, Clerk Deceased, ) ) Plaintiff-Appellant, ) ) MICHIGAN DEPARTMENT OF HEALTH ) AND HUMAN SERVICES, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Intervenor, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN v. ) ) LIBERTY MUTUAL INSURANCE ) OPINION COMPANY, ) ) Defendant-Appellee. ) )
Before: MOORE, COOK, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff Lynette Duncan, the late David
Duncan’s (“Duncan”) widow, is acting as the personal representative of Duncan’s estate (the
“Estate”). Duncan had sustained significant injuries in an automobile crash, and these injuries
resulted in his death a year later. At the time of the accident, Duncan had a no-fault insurer, Liberty
Mutual Insurance Company (“Liberty Mutual”). He was also a Medicare recipient. Liberty
Mutual, however, refused to cover Duncan’s medical expenses, which caused Medicare to make
conditional payments. Because Liberty Mutual refused to pay, Duncan brought an action in
Michigan state court, and the Estate pursued the action after his death. When Liberty Mutual No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
moved for summary judgment regarding whether the Estate can pursue double damages under the
Medicare Secondary Payer Act (the “Act”), 42 U.S.C. § 1395y(b)(3), the district court granted
Liberty Mutual’s motion. The Estate has appealed the district court’s judgment.
For the reasons explained below, we REMAND the action to the district court to consider
whether the Estate has standing.
I. BACKGROUND
This action arises from Medicare’s payment of Duncan’s medical expenses for his injuries
from an automobile crash on January 11, 2013. See R. 26 (Second Am. Compl. ¶ 5) (Page ID
#3186). At the time of the accident, Liberty Mutual was Duncan’s no-fault insurer. Id. ¶ 6 (Page
ID #3186). Duncan was also a Medicare recipient. Id. ¶ 22 (Page ID #3191). When Duncan died
on December 4, 2014, the Estate continued to pursue the action against Liberty Mutual. See id.
¶ 37 (Page ID #3195).
Because Liberty Mutual refused to cover Duncan’s medical expenses, Duncan filed this
action in Michigan state court. R. 45-4 (Mot. Ex. C, Compl. ¶ 9) (Page ID #3612). In Duncan’s
state-court action, a jury determined that the operation of a motor vehicle caused Duncan’s injuries,
which required Liberty Mutual to pay for Duncan’s medical expenses. See R. 20-3 (Notice
Removal Ex. PPPPP, J. at 2) (Page ID #2280). Liberty Mutual then notified Medicare on April 1,
2016, that “Liberty Mutual has been determined to be the primary payer in relation to the motor
vehicle accident on 1/11/13.” R. 45-24 (Mot. Ex. W, Letter at 1) (Page ID #4061). Medicare
responded to Liberty Mutual and informed Liberty Mutual that “Medicare ha[d] identified a claim
2 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
or number of claims for which [Liberty Mutual] ha[s] primary payment responsibility and
Medicare has made primary payment. Medicare must recover these payments from the entity
responsible for payment or, when payment has been made, from the entity/individual who has
received payment for these claims (see 42 U.S.C. 1395y(b)(2)).” R. 45-25 (Mot. Ex. X, Letter at
1) (Page ID #4063). In that letter, Medicare “identified $174,815.20 in conditional payments,” but
it had not made a final determination regarding the amount that Liberty Mutual owed. Id.
After receiving the jury verdict, the Estate amended its complaint to include a claim for
double damages under § 1395y(b)(3). R. 1-3 (Notice Ex. B, Am. Compl. at 5) (Page ID #20).
Liberty Mutual then removed the action to the United States District Court for the Eastern District
of Michigan because of the federal question. See R. 1 (Notice) (Page ID #1). In the district court,
both parties moved for partial summary judgment regarding the Estate’s claim under
§ 1395y(b)(3). R. 45 (Mot. at 26) (Page ID #3588); R. 46 (Mot. at 8–9) (Page ID #4092–93). The
district court granted Liberty Mutual’s motion and denied the Estate’s motion. R. 67 (Order) (Page
ID #4758). The Estate appealed the judgment. R. 72 (Notice) (Page ID #4765).
II. DISCUSSION
We examine de novo a district court’s grant of summary judgment. Schleicher v. Preferred
Sols., Inc., 831 F.3d 746, 752 (6th Cir. 2016). “Summary judgment is warranted only if the record
shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Wenk v. O’Reilly, 783 F.3d 585, 593 (6th Cir. 2015) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Fed. R. Civ. P. 56. We also “must
3 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
view the facts and any inferences reasonably drawn from them in the light most favorable to the
nonmoving party.” Griffith v. Coburn, 473 F.3d 650, 655 (6th Cir. 2007) (quoting St. John v.
Hickey, 411 F.3d 762, 768 (6th Cir. 2005)).
For standing, a plaintiff needs to show that “(1) [he or she] has suffered an ‘injury-in-fact’
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 523–24 (6th Cir. 2001) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000)). The Supreme
Court has stated that “[t]he party invoking federal jurisdiction bears the burden of establishing
these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
For injury-in-fact, there are two elements: the injury must be particularized and concrete.
Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1548 (2016). To be a particularized injury,
“it must affect the plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. at 560
n.1). However, regardless of whether a plaintiff’s injury is particularized, a plaintiff needs “some
concrete interest that is affected by the deprivation.” Id. at 1552 (quoting Summers v. Earth Island
Inst., 555 U.S. 488, 496 (2009)). “Congress’ role in identifying and elevating intangible harms
does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a
statute grants a person a statutory right and purports to authorize that person to sue to vindicate
4 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
that right.” Id. at 1549. “Article III standing requires a concrete injury even in the context of a
statutory violation.” Id.
In this particular action, determining whether the Estate has standing is a fact intensive
question. Compare Gucwa v. Lawley, 731 F. App’x 408, 413–14 (6th Cir. 2018) (hypothesizing
that a financial loss might show standing), and Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 391
(2d Cir. 2001) (summarizing a plaintiff’s argument that he received inferior health care), with
Netro v. Greater Balt. Med. Ctr., Inc., 891 F.3d 522, 526–28 (4th Cir. 2018) (stating that a
beneficiary had standing because a state-court judgment required her to pay Medicare and she
invoked a derivative injury). We have noted that “[a] plaintiff does not satisfy the elements of
standing simply by showing that the insurer failed to make payments ‘on [his] behalf’; the plaintiff
must show that he ‘[him]self suffered an injury because a primary plan has failed’ to pay.” Gucwa,
731 F. App’x at 414 (second and third alterations in original) (quoting Woods v. Empire Health
Choice, Inc., 574 F.3d 92, 101 (2d Cir. 2009)). Determining here, for instance, whether Duncan
suffered financially or received less care because Liberty Mutual failed to provide primary
payment requires fact finding. See Gucwa, 731 F. App’x at 413–14.
In its review of the matter, the district court did not analyze whether the Estate has standing.
See R. 67 (Order) (Page ID #4758). Accordingly, the district court did not make factual findings
regarding whether Liberty Mutual injured the Estate by refusing to pay for Duncan’s medical
expenses and triggering Medicare’s conditional payments. Because we do not have these findings
before us, the district court should determine in the first instance this factually intensive question.
5 No. 17-1402 Lynette Duncan et al. v. Liberty Mut. Ins. Co.
III. CONCLUSION
For these reasons, we REMAND the action to the district court to consider whether the
Estate has standing.