                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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



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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



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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




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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.



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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.




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