NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0414n.06

No. 17-1402

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LYNETTE DUNCAN, as Personal 

Representative of the Estate of David Duncan, 

Deceased,

Plaintiff-Appellant,

MICHIGAN DEPARTMENT OF HEALTH 

AND HUMAN SERVICES,

Intervenor,

v.

LIBERTY MUTUAL INSURANCE 

COMPANY,

Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

OPINION

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.

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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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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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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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III. CONCLUSION

For these reasons, we REMAND the action to the district court to consider whether the 

Estate has standing.