*

Honorable Charles A. Moye, Jr., Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6175.

Stephen BRADFORD, Plaintiff-Appellee,

v.

BRUNO'S, INC., d/b/a Food World # 15, Defendant-Appellant,

Food World # 15, Cullman, Alabama, Defendant.

Sept. 6, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-92-G-2875-S), J. Foy Guin, Jr., Judge.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

Before EDMONDSON and CARNES, Circuit Judges and MOYE*

, Senior

District Judge.

PER CURIAM:

This appeal arises from a diversity jurisdiction lawsuit

Stephen Bradford brought against Bruno's, Inc., as a result of a

slip and fall at a grocery store in Alabama. This panel previously

reversed the district court's judgment and remanded the case for a

new trial. Bradford v. Bruno's, Inc., 41 F.3d 625 (11th Cir.1995).

We reversed because we concluded that the district court

erroneously excluded evidence that Bradford's medical expenses had

been paid by an insurance company.

Alabama Code § 12-21-45 (Supp.1994) provides that, "In all

civil actions where damages for any medical or hospital expenses

are claimed and are legally recoverable for personal injury or

death, evidence that the plaintiff's medical or hospital expenses
have been or will be paid or reimbursed shall be admissible as

competent evidence." The district court held that section 12-21-45

is not applicable in diversity cases, under Erie R.R. v. Tompkins,

304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny.

It did so based on its characterization of the statute as

procedural, rather than substantive. Only state law of a

substantive, as opposed to procedural, nature is applicable in

diversity cases. Erie, 304 U.S. 64, 58 S.Ct. 817. In our previous

decision we held that the statute is substantive for diversity

purposes, and was due to be applied in this case.

In its motion for rehearing, Bradford suggested that we hold

this case in abeyance pending the outcome of American Legion Post

Number 57 v. Leahey, --- So.2d ----, 1996 WL 390622 (Ala.1996),

then pending before the Alabama Supreme Court. Leahey, which is

another slip and fall case, involved a challenge to the

constitutionality of section 12-21-45 under the Alabama

Constitution. Because it was apparent to us that if the Alabama

Supreme Court were to hold the statute unconstitutional, the

district court's decision in the present case would be due to be

affirmed, albeit on different grounds than the district court had

stated, we agreed to hold this case in abeyance pending a decision

in Leahey.

Now, approximately 20 months after we issued our original

decision in this case, the Alabama Supreme Court has issued its

decision in Leahey, striking down section 12-21-45. Because of

that decision, we now withdraw the opinion published at 41 F.3d

625, and substitute the following opinion:
 1

To the extent Bradford's rehearing petition is a suggestion

for rehearing en banc, it is denied. 

In American Legion Post Number 57 v. Leahey, --- So.2d ----,

1996 WL 390622 (Ala.1996), the Alabama Supreme Court struck down

Alabama Code § 12-21-45 (Supp.1994), holding that it violated the

Alabama Constitution. The sole issue presented in the present

appeal is whether the district court erred by declining to apply

section 12-21-45. Although the district court did not decline to

apply the statute on the ground that it is unconstitutional, the

fact that the Alabama Supreme Court has since invalidated the

statute on state constitutional grounds renders the result the

district court reached correct, even if its reasoning was not. As

Bruno's concedes about the effect of Leahey, "we will have to abide

by that decision." See, e.g., Gibson v. Berryhill, 411 U.S. 564,

580-81, 93 S.Ct. 1689, 1699, 36 L.Ed.2d 488 (1973) (court of

appeals applies the law as it exists at the time of its review, not

as it existed at the time the district court rendered its

decision).

Accordingly, the judgment of the district court is AFFIRMED.1