                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0643n.06
                                                                                           FILED
                                            No. 09-1753                                 Oct 07, 2010
                                                                                  LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


SUZANN BARLOW,                                             )
                                                           )
       Plaintiff-Appellant,                                )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
EDWARD C. ADAMS; K. L. HARRING,                            )    THE EASTERN DISTRICT OF
                                                           )    MICHIGAN
       Defendants-Appellees.                               )
                                                           )
                                                           )



       Before: MERRITT, KENNEDY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Suzann Barlow was in a car accident in Port Huron, Michigan

with a semi-truck owned by K.L. Harring and driven by Edward Adams. She sued them. The

district court granted summary judgment for the defendants based on the Michigan No Fault Act.

See Mich. Comp. Laws Ann. § 500.3135. The Michigan Supreme Court has since overruled its own

precedent interpreting that Act. In light of that change, we vacate and remand.

       Under Michigan law, a plaintiff must have “suffered death, severe impairment of body

function, or permanent serious disfigurement” to recover noneconomic damages from a motor-

vehicle accident. Mich. Comp. Laws Ann. § 500.3135(1). Barlow alleges that she has a severe

impairment of body function. The statute defines this element as “an objectively manifested

impairment of an important bodily function that affects the person’s general ability to lead his or her
No. 09-1753
Barlow v. Adams, et al.

normal life.” Id. § 500.3135(7). The district court granted summary judgment in favor of the

defendants, holding that Barlow was unable to demonstrate an effect on her general ability to lead

her normal life. This appeal followed.

         Barlow challenges two aspects of that decision. First, she argues that the district court

wrongly applied subsection 2(a) of the No Fault Act as its summary-judgment standard rather than

Federal Rule of Civil Procedure 56. It is unclear from its opinion what standard the district court

applied. But the district court should have applied Rule 56, as required by the Rules Enabling Act.

28 U.S.C. § 2072(b); see Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437

(2010); Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 573–74 (6th Cir. 2008).

         Second, she now argues that the district court applied the wrong substantive standard. The

court applied Kreiner v. Fischer, 683 N.W.2d 611 (Mich. 2004), which was then the leading case

regarding the No Fault Act. But the Michigan Supreme Court has since overruled Kreiner. See

McCormick v. Carrier, No. 136738, 2010 WL 3063150, at *14 (Mich. July 31, 2010). Moreover,

McCormick expressly overturned most of the language relied upon by the district court. See id. at

*9-11.

         So it is unclear whether the district court applied the correct procedural standard, and very

clear that, through no fault of its own, it applied a now-invalid substantive standard. In addition, the

district court does not yet appear to have ruled on Barlow’s claim for economic damages. In light

of these circumstances, we vacate the court’s order granting summary judgment to the defendants

and remand the case for further proceedings consistent with this opinion.



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