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 . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

OPINION

Before: MOORE, COOK , and M c KEAGUE , 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

“ E state”). D uncan had sustained significant injuries in an automobile crash, and these injuries resulted in his death a year later. At the time of the accident, D uncan 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 pa y, Duncan brought an action in Michigan state court, and the Estate pursued the action after his death. When Liberty MutualNo. 17

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. Ins. Co.

2 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 Mutua l 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 moto r 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 claimNo. 17

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. Ins. Co.

3 or num ber 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 wh o 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 a mount 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 § 1 395y(b)(3)

. R. 45 (Mot. at 26) (Page ID #3588); R. 46 (Mot. at 8

– 9 ) (Page ID #40 92

– 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 gr ant 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 “mustNo. 17

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. Ins. Co.

4 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 defen dant; 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. Def s. 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. a t 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 vindicateNo. 17

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. Ins. Co.

5 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
qu estion. 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. , 2 54 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 Medic are 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 inju ry because a primary plan has failed’ to pay.” Gucwa , 731 F. App’x at 414 ( second and third alteration s 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). A ccordingly, 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 n ot have these findings before us, the district court should determine in the first instance t his factually intensive question

.No. 17

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6 III. CONCLUSION
For these reasons, we REMAND the action to the district court to consider whether the Estate has standing.