Lynette Duncan v. Liberty Mutual Ins. Co.

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0186n.06
No. 19-1796

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LYNETTE DUNCAN, as Personal Representative ) FILED
) Apr 13, 2021
of the Estate of David Duncan, Deceased,
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
MICHIGAN DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, ) ON APPEAL FROM THE
Intervenor, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
LIBERTY MUTUAL INSURANCE COMPANY, )
)
Defendant-Appellee. )

BEFORE: BOGGS, SUTTON, and WHITE, Circuit Judges.

BOGGS, Circuit Judge. This appeal arises out of a lengthy dispute between David

Duncan and Liberty Mutual Insurance Company (“Liberty Mutual”) over the payment of David

Duncan’s medical expenses under his no-fault car-insurance policy with Liberty Mutual. Lynette

Duncan, representing David Duncan’s estate, appeals the district court’s judgment on remand

dismissing her claim against Liberty Mutual for double damages under the Medicare Secondary

Payer Act (“MSPA”), 42 U.S.C. § 1395y(b)(3)(A). The district court held that Lynette Duncan

does not have standing to bring that claim and, alternatively, granted partial summary judgment to

Liberty Mutual, holding that the conduct of Liberty Mutual did not violate the MSPA, as would

be required to trigger the double-damages provision of the statute. We affirm the district court’s

dismissal.
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

I. BACKGROUND

A. Factual Background

On January 11, 2013, David Duncan was involved in a single-car accident, in which he

suffered severe brain injury. Duncan never regained consciousness and, after spending almost two

years in hospitals and long-term-care facilities, died on December 4, 2014 as a result of the injuries

he had suffered in the car accident.

Liberty Mutual alleges that, four days after the accident, it had complied with statutory

Medicare reporting requirements as a no-fault insurer by notifying the Centers for Medicare and

Medicaid Services (“CMS”) that David Duncan had Medicare coverage. But on June 4, 2013,

Liberty Mutual informed David Duncan that it was denying no-fault insurance coverage for his

injuries. Around the same time, Liberty Mutual informed McLaren Oakland, a hospital that had

treated David Duncan, that it was suspending payment of no-fault insurance benefits, based on

Liberty Mutual’s review of the claim.

On July 2, 2013, McLaren Oakland filed suit in Wayne County Circuit Court against

Liberty Mutual, seeking reimbursement of the cost of Duncan’s medical treatment in the amount

of $153,022 plus interest and fees. McLaren Oakland alleged that Liberty Mutual paid some, but

not all, medical bills related to Duncan’s January 11, 2013 accident, and sought reimbursement of

the balance of $153,022. McLaren Oakland’s case against Liberty Mutual was litigated up until

May 28, 2015, after the state court denied Liberty Mutual’s motion for summary disposition.

In the meantime, David Duncan’s medical expenses were paid by Medicare conditionally,

to be reimbursed by Liberty Mutual as the primary insurer under David Duncan’s no-fault car

insurance policy in case his expenses were covered under the policy. While the case of McLaren

Oakland against Liberty Mutual was pending, David Duncan filed a complaint against Liberty

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Mutual in Oakland County Circuit Court on August 1, 2013, seeking payment of personal-injury-

protection (“PIP”) insurance benefits under Michigan’s no-fault act, Mich. Comp. Laws

§§ 500.3101 et seq. The complaint alleged Count I, breach of contract, and Count II, declaratory

relief, asking the court to determine the applicability of Michigan’s no-fault act to Duncan’s claims

and the amount of damages, including wage loss, medical expenses, interest, and attorney’s fees.

After David Duncan’s death on December 4, 2014, the action was continued by his wife, Lynette

Duncan, as personal representative of his estate.

With the two parallel cases against Liberty Mutual approaching separate trial dates,

McLaren Oakland and Liberty Mutual filed on May 28, 2015 a stipulated order for dismissal

without prejudice, pending the outcome of the Duncan suit against Liberty Mutual.

On January 16, 2015, CMS sent Liberty Mutual a letter identifying $225,668.29 in

conditional payments for David Duncan’s medical expenses that CMS believed were covered

under his no-fault insurance policy with Liberty Mutual. On February 9, 2015, Liberty Mutual

denied no-fault insurance coverage after Duncan’s death in a letter to CMS, because it concluded

that David Duncan had suffered a cardiac arrest prior to the car accident, and that this cardiac arrest

had been the cause of both the accident and his brain injury. After negotiations between Liberty

Mutual and CMS regarding reimbursement of David Duncan’s medical expenses, CMS sent a

letter to Liberty Mutual on June 19, 2015 with a determination that the medical expenses of David

Duncan that had been conditionally paid by Medicare were unrelated to his no-fault insurance, and

that Medicare had no interest in recovery from Liberty Mutual. The CMS letter also advised

Liberty Mutual and the estate of David Duncan of a deadline of October 22, 2015 to appeal this

ruling.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

The estate of David Duncan did not request reconsideration of CMS’s determination until

October 26, 2015, which was four days past the notified deadline for appeals, and hence the

agency’s determination had become final. The estate’s untimely request for reconsideration noted

an ongoing lawsuit against Liberty Mutual in this matter with a trial date set for December 10,

2015.

However, in the meantime, on October 23, 2015, one day after the deadline for requesting

reconsideration had expired, Liberty Mutual filed with the state court in Duncan’s suit a motion

for partial summary judgment, submitting the determination letter from Medicare, which stated

that Medicare had made conditional payments in the amount of $0.00, and arguing that David

Duncan’s medical expenses in the amount of $671,159.22 were therefore unrelated to his no-fault

insurance and that, consequently, Medicare had no right to recover from Liberty Mutual as it was

not a secondary payer for purposes of the MSPA.

Liberty Mutual and the estate of David Duncan proceeded to trial in March 2016 on the

limited issue of Liberty Mutual’s liability for no-fault benefits. The estate obtained a unanimous

jury verdict against Liberty Mutual that resulted in an April 18, 2016 judgment:

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Decedent, David
Duncan, deceased, suffered an accidental bodily injury that arose out of the use or
operation of a motor vehicle as a motor vehicle that caused or contributed to his
anoxic brain injury on January 11, 2013.

After receiving the jury verdict, but prior to entry of judgment, Liberty Mutual sent a letter

on April 1, 2016 advising Medicare of Liberty Mutual’s responsibility as a primary insurer in

relation to David Duncan’s medical expenses resulting from his car accident and requesting a letter

specifying the amount for which Medicare would seek reimbursement. CMS then submitted to

Liberty Mutual on October 26, 2016 a non-final request for reimbursement of $174,815.20 and on

February 20, 2018 a payment-demand letter for the same amount, which Liberty Mutual paid on

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

March 6, 2018 by a check hand-delivered to Duncan’s counsel. Duncan’s counsel forwarded

Liberty Mutual’s check to CMS along with a transmittal letter claiming that the case was not

closed, because an earlier conditional-payment letter dated January 16, 2015 indicated that there

were still outstanding Medicare conditional payments totaling at least $51,255.06.

Also after the jury verdict, on March 30, 2016, the estate of David Duncan, represented by

Lynette Duncan, moved for leave to file an amended complaint adding a claim for double damages

under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(3)(A).

On May 11, 2016, McLaren Oakland, a hospital that had treated David Duncan and that

previously stipulated to dismiss without prejudice its parallel suit against Liberty Mutual, filed a

motion to intervene in the Duncan suit. McLaren Oakland sought recovery of its charges for

Duncan’s medical treatment, which were previously paid only partly by Liberty Mutual, and then

paid by Medicare at a rate significantly lower than a no-fault insurer would pay. Liberty Mutual

had paid on June 4, 2013 only $20,181 of the $173,223.10 billed by McLaren Oakland to Liberty

Mutual as primary insurer for the hospitalization of David Duncan. After Liberty Mutual refused

to pay the balance, McLaren Oakland sought payment from Medicare and was conditionally paid

$58,229.22. The hospital intervened to seek recovery of the outstanding portion of its $173,461.10

in medical services, i.e., $95,050.88, plus no-fault statutory interest and attorney’s fees.

On June 10, 2016, Liberty Mutual opposed Lynette Duncan’s motion to amend the

complaint. The trial court granted the motion on July 7, 2016, and Lynette Duncan filed a first

amended complaint on July 8, 2016, adding a claim for double damages under the MSPA,

42 U.S.C. § 1395y(b)(3)(A), as Count III.

Liberty Mutual then removed the case to the United States District Court for the Eastern

District of Michigan on July 8, 2016 on the basis of federal-question jurisdiction.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

In her action in state court, Lynette Duncan claimed to represent the interests of Medicaid,

while the Michigan Department of Health and Human Services was represented in the same state-

court proceedings by an assistant attorney general with respect to subrogation against Liberty

Mutual for Medicaid expenditures. Michigan Department of Community Health also filed on May

13, 2015 a proof of claim against the estate of David Duncan for Medicaid payments in the amount

of $110,174.44. Lynette Duncan further asserted in state court the right to recover on behalf of

Medicare the amounts allegedly covered by Liberty Mutual’s no-fault PIP policy. She also

claimed to represent the interests of McLaren Oakland hospitals, which had since intervened in the

suits. McLaren Oakland filed a proof of claim against the estate of David Duncan on January 8,

2018 in the amount of $153,280.10. Because Lynette Duncan purported to represent the interests

of Medicaid, Medicare, and McLaren Oakland in relation to recovery from Liberty Mutual, Liberty

Mutual filed in state court on March 28, 2016, prior to removal, a motion to determine proper

payees and the appropriate lien holders with respect to Medicare, Medicaid, and intervening

plaintiff McLaren Oakland. Its state-court motion listed thirteen medical-services providers who

had provided notices to Liberty Mutual. Liberty Mutual further alleged that all those providers

had accepted payment in full from Medicare and Medicaid, rather than from Lynette Duncan.

Liberty Mutual therefore moved the court to determine which parties were to be reimbursed by

Liberty Mutual.

While that motion was pending, the case was removed to the district court. Liberty Mutual

then filed in the district court on November 22, 2016 a new motion to determine proper payees

and the appropriate lien holders with respect to Medicare, Medicaid, and intervening plaintiff

McLaren Oakland.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

In her reply, Lynette Duncan asserted that under the MSPA, 42 U.S.C. § 1395y(b)(3)(A),

she was the proper payee for amounts paid by Medicare for David Duncan’s care, and that under

Mich. Comp. Laws § 400.106 she was the proper payee for amounts paid by Medicaid for David

Duncan’s medical expenses arising out of his January 11, 2013 car accident. Lynette Duncan

admitted in her reply that she was not the proper payee for the unpaid amounts claimed by McLaren

Oakland, which had since intervened in the action. The district court denied Liberty Mutual’s

motion to determine proper payees and the appropriate lien holders as a request for an advisory

opinion.

After Liberty Mutual removed the case to district court and answered the complaint,

Lynette Duncan filed a second amended complaint on August 19, 2016, elaborating on the estate’s

double-damages MSPA claim. The parties then filed cross-motions for summary judgment on the

issue of the MSPA claim.

Liberty Mutual argued that it had not failed to provide reimbursement to Medicare for

purposes of the double-damages MSPA claim because it had promptly followed statutory and

regulatory processes to resolve directly with Medicare the issue of Liberty Mutual’s disputed

liability for reimbursement, and that Medicare had, at one point, issued to Liberty Mutual a no-

interest determination letter. Liberty Mutual also argued that Medicare still had not issued a final-

amount demand letter that would have been required to trigger Liberty Mutual’s obligation to pay

Medicare.

Lynette Duncan, on the other hand, argued that Liberty Mutual was liable for double

damages under the MSPA in the amount of $451,336.58, because it had failed to pay Medicare the

initial amount stated in CMS’s first conditional-payment letter of July 18, 2014, which was

$139,448.33. Medicare sent Liberty Mutual over time at least four more conditional-payment

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

letters listing various non-final amounts. The January 16, 2015 letter itemized $225,668.29 in

conditional payments that Medicare had made, which was the highest, but still not final,

reimbursement amount requested by Medicare, and which seems to form the basis of Lynette

Duncan’s alleged amount of conditional payments of $225,668.29 stated in her Second Amended

Complaint, giving rise to the double-damages amount of $451,336.58 claimed under the MSPA.

But not all of the $225,668.29 in conditional payments, or of the $671,159.22 in medical

charges itemized by CMS in its January 16, 2015 conditional-payment letter, appears to have been

related to David Duncan’s car accident and no-fault insurance. The varying amounts in CMS’s

conditional-payment letters appear to reflect a reallocation of David Duncan’s medical expenses

between those related to the accident, for which Medicare and Medicaid would seek

reimbursement from Liberty Mutual, and other medical expenses of David Duncan while he spent

almost two years in various medical facilities before he died.

The amount of conditional payments that CMS ultimately submitted to Liberty Mutual for

reimbursement on October 26, 2016, after the jury verdict, and confirmed in a February 20, 2018

payment demand letter, was $174,815.20, which Liberty Mutual paid in March 2018, while the

estate of David Duncan claimed that Liberty Mutual still owed Medicare $51,255.06 in

unreimbursed conditional payments. Even so, these $174,815.20 in conditional payments

constituted only a fraction of the total medical charges incurred by David Duncan. On its October

26, 2016 payment summary form, CMS had itemized on twenty-one pages seventy-one medical

charges totaling $460,880.70, of which Medicare conditionally paid $174,815.20. These charges

of $460,880.70 included $173,461.10 in bills submitted by McLaren Oakland, of which Medicare

paid conditionally $58,229.22 subject to reimbursement by Duncan’s no-fault insurer. That

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

$58,229.22 paid to McLaren Oakland was part of the $174,815.20 conditionally paid by Medicare

to various medical-services providers for treatment of David Duncan.

Liberty Mutual’s state-court motion to determine proper payees and lien holders that was

filed on March 28, 2018 (and which was denied as a request for an advisory opinion by the district

court after refiling upon removal lists thirteen medical-services providers who submitted notices

to Liberty Mutual. Liberty Mutual alleged that all those providers had accepted payment in full

from Medicare and Medicaid. That would mean that healthcare providers other than intervenor

McLaren Oakland had charged off the difference, and that David Duncan or his estate had paid

nothing. McLaren Oakland filed on January 8, 2018 a proof of claim against the estate of David

Duncan in the amount of $153,280.10, which approximated the difference between the amount

billed by McLaren Oakland for Duncan’s treatment, $173,223.10, and the amount previously paid

by Liberty Mutual, $20,181, but did not account for $58,229.22 in payments made conditionally

to McLaren Oakland by Medicare subject to reimbursement by Liberty Mutual.

Lynette Duncan requested partial summary judgment in her favor against Liberty Mutual

for $451,336.58 in double damages under the MSPA, 42 U.S.C. § 1395y(b)(3)(A). She also

requested partial summary judgment in her favor against Liberty Mutual in the amount of

$89,962.09 for repayment to Medicaid, which corresponded to the amount listed in a May 6, 2015

demand letter that CMS had sent to Liberty Mutual. That amount was paid by the Michigan

Department of Health and Human Services Medicaid program, subject to subrogation against

Liberty Mutual. After the state-court jury verdict, Liberty Mutual was prepared to repay the

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

$89,962.09 to the State of Michigan. Liberty Mutual had confirmed its readiness to the federal

court during oral argument on the cross motions for summary judgment on March 9, 2017.1

The exact amount billed and paid by any of the parties in relation to David Duncan’s

accident is unclear. Contractual damages were not part of the district-court proceedings, and the

only judgment entered thus far in state court concerned the limited issue of causation of David

Duncan’s injuries. It would appear, however, that Liberty Mutual paid directly to the medical

providers at least $20,181 of the $173,223.10 billed by McLaren Oakland; that the Michigan

Department of Health and Human Services Medicaid program paid $89,962.09 to the medical

providers; that Medicare paid conditionally $174,815.20 to the medical providers, including

$58,229.22 to McLaren Oakland; that healthcare providers sought at least $671,159.22 for

rendered services, the bulk of which remained unpaid but was also not subject to discernible

collection efforts, other than by McLaren Oakland; and that David Duncan and his estate do not

allege that they have paid anything, but aver that Medicaid and McLaren Oakland have filed claims

against Duncan’s estate. The claims against David Duncan’s estate appear to be to secure

reimbursement in case the estate should obtain payments from Liberty Mutual, similar to the initial

1
However, it appears that this repayment of $89,962.09 to Medicaid may not have been carried out to date.
The Michigan Department of Health and Human Services intervened in the district-court action upon invitation of the
district court in February 2017, after its motion to intervene in the state action had been denied without prejudice.
Michigan’s complaint alleged that David Duncan had been at all relevant times eligible for Michigan’s Medicaid
benefits and that Michigan’s claim had first priority against David Duncan’s net recovery from any settlement or
judgment in this action. Michigan’s motion to intervene was granted by the district court in its March 10, 2017 order
granting Liberty Mutual’s motion for partial summary judgment and remanding the case to state court. But neither
Michigan nor Liberty Mutual has alleged since that Michigan’s Medicaid payments were actually reimbursed by
Liberty Mutual. Instead, Liberty Mutual disputed in December 2018 in state court on remand whether the medical
expenses paid by Medicare and Medicaid were reasonable and necessary, considering that David Duncan was being
kept on life support with a serious brain injury and with no meaningful chance of recovery for almost two years until
his death from injuries related to his 2013 car accident. The state court ruled that this fact-intensive question needed
to be resolved by jury. As of the time of oral argument before this court, the parties were still awaiting state trial on
this issue.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

payment of $174,815.20 made by Liberty Mutual with a check delivered to Duncan’s estate, which

was expected to be forwarded to CMS for reimbursement of Medicare’s conditional payments.

Michigan alleges in particular that its claim for Medicaid payments has first priority against net

recovery from any settlement or judgment against Liberty Mutual.

Ultimately, the entire dispute was between medical-services providers, Medicare,

Medicaid, and Liberty Mutual, while David Duncan or his estate did not seem to have been asked

to cover or reimburse any charges other than to disburse payments obtained from Liberty Mutual

for reimbursement of Medicaid and McLaren Oakland. As a consequence, David Duncan’s estate

did not suffer any financial harm from Liberty Mutual’s alleged statutory violation of the MSPA.

At oral argument on the cross-motions for summary judgment, Liberty Mutual additionally

raised recent precedent to challenge Lynette Duncan’s standing to bring the MSPA double-

damages claim, alleging that Lynette Duncan had not shown an injury-in-fact as required to have

standing under the MSPA. After oral arguments, the district court ruled from the bench for Liberty

Mutual. It characterized the penalty provision as a windfall to Lynette Duncan, which was

unjustified because Liberty Mutual had not acted in bad faith in its dealings with Medicare while

disputing liability for David Duncan’s medical expenses, where questions of causation of his

injuries remained and were resolved only at jury trial and only after Medicare had already accepted

Liberty Mutual’s arguments as to why David Duncan’s medical expenses were not covered under

his no-fault PIP policy. The following day, on March 10, 2017, the court issued partial summary

judgment without an opinion for Liberty Mutual as well as an order remanding the remaining

claims to state court and granting a motion to intervene filed by the Michigan Department of Health

and Human Services.

Lynette Duncan filed a notice of appeal on April 7, 2017.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

On August 16, 2018, this court remanded the case to the district court to analyze the fact-

intensive question of standing of Duncan’s estate by considering whether Liberty Mutual had

injured Duncan’s estate by refusing to pay David Duncan’s medical expenses and thus triggering

Medicare’s conditional payments. See Duncan v. Liberty Mut. Ins. Co., 745 F. App’x 575, 578

(6th Cir. 2018).

After supplemental briefing on the issue of standing, on June 25, 2019, the district court

issued its opinion and judgment on remand, holding that Lynette Duncan lacked Article III

standing to bring a double-damages claim under the MSPA. The district court reasoned that

Lynette Duncan had not shown that David Duncan’s estate had suffered any injury-in-fact when

Liberty Mutual did not pay David Duncan’s medical expenses, because those expenses had been

paid by Medicare instead, and, after the jury verdict, Liberty Mutual had committed to reimburse

Medicare in accordance with its final payment-demand letter. The district court dismissed Lynette

Duncan’s double-damages claim under the MSPA for lack of jurisdiction because Lynette Duncan

lacked standing and, in the alternative, it denied Lynette Duncan’s motion for partial summary

judgment as to the double-damages claim and granted Liberty Mutual’s motion for partial

summary judgment on the same claim. The district court reasoned that partial summary judgment

for Liberty Mutual was appropriate because Liberty Mutual had not “fail[ed] to provide for primary

payment (or appropriate reimbursement)” to Medicare under 42 U.S.C. § 1395y(b)(3)(A), which

was necessary to trigger the double-damages provision, since Liberty Mutual had a plausible

argument as to why it was not liable under its no-fault policy and had even convinced Medicare to

issue a no-liability determination letter. This argument, however, was advanced to CMS prior to

the jury verdict.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Lynette Duncan timely filed a notice of appeal on July 22, 2019. She challenges the

dismissal of the estate’s MSPA claim for lack of standing.

B. The Medicare Secondary Payer Act

Medicare is a federal program providing health insurance to individuals who are over the

age of sixty-five, disabled, or who have end-stage renal disease. 42 U.S.C. § 1395c. Until the

introduction of the Medicare Secondary Payer Act, Medicare was the primary payer of medical

costs of its insureds, while private insurance provided secondary coverage above and beyond what

Medicare would cover. Osborne v. Metro. Gov’t of Nashville & Davidson Cty., 935 F.3d 521, 523

(6th Cir. 2019). But in 1980, seeking to reduce Medicare’s exploding costs, Congress passed the

Medicare Secondary Payer Act, which reversed the roles: now Medicare became the secondary

payer, while certain private insurers, called primary plans, became primary payers. Stalley v.

Methodist Healthcare, 517 F.3d 911, 915 (6th Cir. 2008). “The sole interest of Congress, as far

as the [MSP] statute discloses, was to provide that Medicare would not have to pay ahead of private

carriers in certain situations.” Baptist Mem’l Hosp. v. Pan Am. Life Ins. Co., 45 F.3d 992, 998 (6th

Cir. 1995).

The list of what is considered a primary plan was expanded by several amendments to the

MSPA, but its current definition includes automobile and no-fault insurance:

In this subsection, the term “primary plan” means a group health plan or large group
health plan, to the extent that clause (i) applies, and a workmen’s compensation law
or plan, an automobile or liability insurance policy or plan (including a self-insured
plan) or no fault insurance, to the extent that clause (ii) applies. An entity that
engages in a business, trade, or profession shall be deemed to have a self-insured
plan if it carries its own risk (whether by a failure to obtain insurance, or otherwise)
in whole or in part.

42 U.S.C. § 1395y(b)(2)(A). The pertinent regulations further specify:

Primary payer means, when used in the context in which Medicare is the secondary
payer, any entity that is or was required or responsible to make payment with

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respect to an item or service (or any portion thereof) under a primary plan. These
entities include, but are not limited to, insurers or self-insurers, third party
administrators, and all employers that sponsor or contribute to group health plans
or large group health plans.

42 C.F.R. § 411.21. “The primary payer is responsible for paying for the patient’s medical

treatment; however, if Medicare expects that the primary payer will not pay promptly, then

Medicare can make a ‘conditional payment’ on its behalf and later seek reimbursement.” Bio-

Med. Applications of Tenn., Inc. v. Cent. States Se. & Sw. Areas Health & Welfare Fund, 656 F.3d

277, 281 (6th Cir. 2011).

The MSPA allows the United States to bring an action for payment against a primary plan

and includes a provision for double damages. 42 U.S.C. § 1395y(b)(2)(B)(iii). The MSPA also

creates a private cause of action:

There is established a private cause of action for damages (which shall be in an
amount double the amount otherwise provided) in the case of a primary plan which
fails to provide for primary payment (or appropriate reimbursement) in accordance
with paragraphs (1) and (2)(A).
42 U.S.C. § 1395y(b)(3)(A).

Painstakingly parsing through statutory language, Bio-Medical Applications of Tennessee

explained the meaning of the cryptic private-action provision: “when a primary plan must pay but

will not do so promptly, Medicare may make a conditional payment” and “a primary plan is liable

under the private cause of action when it discriminates against planholders on the basis of their

Medicare eligibility and therefore causes Medicare to step in and (temporarily) foot the bill.” Bio-

Med. Applications, 656 F.3d at 286. But as this court has subsequently clarified, “the Medicare-

eligibility requirement in paragraph (1), ‘Requirements of group health plans,’ applies only to

group health plans.” Mich. Spine & Brain Surgeons, PLLC v. State Farm Mut. Auto. Ins. Co.,

758 F.3d 787, 793 (6th Cir. 2014). Therefore, for non-group health plans, such as no-fault insurers,

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

the element of “discriminat[ion] against planholders on the basis of their Medicare eligibility” is

not required to establish liability under the private cause of action. Ibid.; see Bio-Med.

Applications, 656 F.3d at 286. In case of a no-fault insurer such as Liberty Mutual, therefore, “a

primary plan is liable under the private cause of action when it . . . causes Medicare to step in and

(temporarily) foot the bill.” Bio-Med. Applications, 656 F.3d at 286; see also Mich. Spine & Brain

Surgeons, 758 F.3d at 793.

Bio-Medical Applications also held that an additional requirement of “demonstrated

responsibility” in the MSPA, 42 U.S.C. § 1395y(b)(2)(B)(ii), does not apply to lawsuits brought

by private parties under the MSPA’s private cause of action, because it applies only to lawsuits

against tortfeasors brought by Medicare for reimbursement. Bio-Med. Applications, 656 F.3d at

294. It “limit[s] the class of alleged tortfeasors whom Medicare can sue for reimbursement” to

“those who have already been adjudged liable (or have entered into a settlement, etc.) for causing

harm that led to Medicare expenses.” Ibid. But the “demonstrated responsibility” requirement

does not apply to insurers who have a contractual obligation to pay medical expenses. Ibid.

“[A]ttempting to apply the ‘demonstrated responsibility’ provision to lawsuits brought by private

parties essentially relegates the private cause of action to a super-judgment enforcement

mechanism.” Id. at 292.

This court has subsequently clarified that the insured have no private cause of action

against tortfeasors under the MSPA, because “[i]n the tort context, the Medicare beneficiary’s

injury will likely have been redressed by a state court judgment, and allowing that same injury in

federal court risks turning the MSPA into a super-judgment enforcement mechanism.” Osborne

v. Metro. Gov’t of Nashville & Davidson Cty., 935 F.3d 521, 526–27 (6th Cir. 2019). Osborne did

not address actions brought by third parties such as medical-services providers. Id. at 527. It held

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instead that Medicare—but not its beneficiary—could bring an action against tortfeasors under the

MSPA, as “this reading is consistent with what this court has previously explained was Congress’s

purpose: Medicare’s recovery.” Ibid.

The double-damages provision of the MSPA is likely to deter the social ill of private

insurers trying to shift costs to Medicare, thus functioning much like antitrust laws’ treble-damages

provisions, but it was included above all to preserve the fiscal integrity of Medicare directly by

providing for reimbursements to Medicare for its conditional payments. Bio-Med. Applications,

656 F.3d at 295. However, “the double damages” under the MSPA “are not a windfall to the

private plaintiff; rather, [the MSPA] contemplates that Medicare will seek reimbursement out of

that recovery, so the plaintiff most likely will keep only its half.” Id. at 294.

The MSPA clarifies the government’s subrogation rights: “[t]he United States shall be

subrogated (to the extent of payment made under this subchapter for such an item or service) to

any right under this subsection of an individual or any other entity to payment with respect to such

item or service under a primary plan.” 42 U.S.C. § 1395y(b)(2)(B)(iv). The regulations enacted

under the MSPA further specify that “CMS has a right of action to recover its payments from any

entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private

insurer that has received a primary payment.” 42 C.F.R. § 411.24(g). So, if a primary payer fulfills

its contractual obligation to the beneficiary by disbursing funds to such beneficiary—or to a

medical services provider—Medicare’s right to reimbursement is subrogated to the beneficiary’s

right to receive such payments. Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 417–18

(D.C. Cir. 1994). Additionally, “[i]f the beneficiary or other party receives a primary payment,

the beneficiary or other party must reimburse Medicare within 60 days.” 42 C.F.R. § 411.24(h).

But “[i]f the recipient of the third-party payment fails to reimburse Medicare within sixty days, as

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

required under 42 CFR § 411.24(h), then ‘the third party payer must reimburse Medicare even

though it has already reimbursed the beneficiary or other party.’” Health Ins. Ass’n of Am., Inc. v.

Shalala, 23 F.3d 412 at 417 (quoting 42 C.F.R. § 411.24(i)(1)). The subrogation provision of 42

U.S.C. § 1395y(b)(2)(B)(iv) additionally ensures that Medicare can recover its conditional

payment from the party that received a payment meant for reimbursing Medicare. See id. at 417–

18. The statute thus makes sure that Medicare is reimbursed by either party. Ibid.

For example, the MSPA “empowers healthcare providers to sue private insurers who

violate the [MSPA]. It then enables Medicare to pursue its reimbursement out of the proceeds

recovered by the victorious healthcare providers.” Bio-Med. Applications, 656 F.3d at 295; see

also 42 U.S.C. § 1395y(b)(2)(B)(iii); Mich. Spine & Brain Surgeons, 758 F.3d at 788 (holding that

the MSPA private cause of action is available to a health-care provider who has not been paid by

a primary plan). “Because healthcare providers anticipate that Medicare will seek its

reimbursement from the proceeds, however, they must receive a premium over the reimbursement

amount to be motivated to bring these lawsuits against private insurers.” Bio-Med. Applications,

656 F.3d at 296. Furthermore, “providers usually suffer their own injury when private insurers

refuse to pay, because providers generally are paid less by Medicare than they would be paid by

private insurers.” Id. at 295–96.

But private parties who are not healthcare providers are also eligible to bring double-

damages claims under the private-action provision of the MSPA—so long as they can demonstrate

Article III standing. See Stalley v. Methodist Healthcare, 517 F.3d 911, 919 (6th Cir. 2008);

Gucwa v. Lawley, 731 F. App’x 408, 413 (6th Cir. 2018).

17
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

II. ANALYSIS

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. This court reviews de novo

a district court’s decision to dismiss for lack of subject-matter jurisdiction. Cartwright v. Garner,

751 F.3d 752, 760 (6th Cir. 2014). We review a district court’s factual findings for clear error,

and its application of the law to the facts de novo. Ibid.

A. Article III Standing

Liberty Mutual first challenged Lynette Duncan’s standing to bring the MSPA double-

damages claim during oral arguments in district court on the cross-motions for summary judgment.

It alleged that Lynette Duncan had not shown injury-in-fact to establish standing under the MSPA

as required by Gucwa v. Lawley, No. 15-10815, 2017 WL 282045, at *7 (E.D. Mich. Jan. 23,

2017), aff’d, 731 F. App’x 408 (6th Cir. 2018). The district court granted Liberty Mutual’s motion

for partial summary judgment without an opinion.

On appeal, this court remanded the case to the district court to analyze the fact-intensive

issue of Lynette Duncan’s standing by answering the question whether David Duncan’s estate had

suffered an injury when Liberty Mutual refused to pay David Duncan’s medical expenses, which

were then paid conditionally by Medicare as a secondary payer under the MSPA. See Duncan v.

Liberty Mut. Ins. Co., 745 F. App’x 575, 578 (6th Cir. 2018). The district court dismissed Lynette

Duncan’s MSPA claim for lack of jurisdiction, because it found that Lynette Duncan could not

show that the estate had suffered any injury and thus lacked standing. But the district court also

granted, in the alternative, Liberty Mutual’s motion for partial summary judgment as to the double-

damages claim and denied Lynette Duncan’s motion for partial summary judgment. The district

court thus held for Liberty Mutual both on subject-matter jurisdiction and on the merits.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

“Because the standing issue goes to [the c]ourt’s subject matter jurisdiction, it can be raised

sua sponte.” Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007). Even

when a defendant seeks disposition of the case on other grounds, the district court may dismiss for

lack of standing. Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013).

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to

declare the law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).

1. Injury-in-Fact

The MSPA is not a qui tam statute and private plaintiffs must demonstrate their own Article

III standing to assert their claims. See Stalley v. Methodist Healthcare, 517 F.3d 911, 919 (6th

Cir. 2008) (“We now join all of the other courts that have ruled on the issue and hold that the

MSP[A]’s private right of action provision does not transform the MSP[A] into a qui tam statute.”);

Woods v. Empire Health Choice, Inc., 574 F.3d 92, 101 (2d Cir. 2009) (concluding that “42 U.S.C.

§ 1395y(b)(3)(A) does not create a qui tam action, but rather merely enables a private party to

bring an action to recover from a private insurer only where that private party has itself suffered

an injury because a primary plan has failed to make a required payment to or on behalf of it.”).

“Generalizations about standing to sue are largely worthless as such. One generalization

is, however, necessary and that is that the question of standing in the federal courts is to be

considered in the framework of Article III which restricts judicial power to ‘cases’ and

‘controversies.’” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151 (1970).

Federal subject-matter jurisdiction requires the plaintiff to satisfy the following elements

of Article III standing:

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

(1) it 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)). Furthermore,

“[t]he party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist”—it must be “‘real,’

and not ‘abstract.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), as revised (May 24,

2016) (citations omitted). “‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’”

Id. at 1549. The Supreme Court has “confirmed in many of [its] previous cases that intangible

injuries can nevertheless be concrete.” Ibid. (“[T]he violation of a procedural right granted by

statute can be sufficient in some circumstances to constitute injury in fact. [A] plaintiff in such a

case need not allege any additional harm beyond the one Congress has identified.” (citing Fed.

Election Comm’n v. Akins, 524 U.S. 11, 20–25 (1998); Pub. Citizen v. Dep’t of Justice, 491 U.S.

440, 449 (1989))). But, as Spokeo cautions,

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 that right. Article III standing requires a concrete injury even in the
context of a statutory violation.

Ibid. See also Lyshe v. Levy, 854 F.3d 855, 860 (6th Cir. 2017) (discussing as persuasive Nicklaw

v. Citimortgage, Inc., 839 F.3d 998, 1002–03 (11th Cir. 2016)) (“[S]tanding is not met simply

because a statute creates a legal obligation and allows a private right of action for failing to fulfil

this obligation.”). For example, a plaintiff “cannot satisfy the demands of Article III by alleging a

20
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

bare procedural violation. A violation of one of the [statutory] procedural requirements may result

in no harm.” Spokeo, 136 S. Ct. at 1550.

In Macy v. GC Services Limited Partnership, this court clarified the issue of standing in

the context of statutory violations:

Spokeo categorized statutory violations as falling into two broad categories:
(1) where the violation of a procedural right granted by statute is sufficient in and
of itself to constitute concrete injury in fact because Congress conferred the
procedural right to protect a plaintiff’s concrete interests and the procedural
violation presents a material risk of real harm to that concrete interest; and
(2) where there is a “bare” procedural violation that does not meet this standard, in
which case a plaintiff must allege “additional harm beyond the one Congress has
identified.”

Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747, 756 (6th Cir. 2018) (quoting Spokeo, 136 S. Ct. at

1549). In Macy, the plaintiffs alleged violations of the Fair Debt Collection Practices Act

(“FDCPA”) by a debt collector. The Macy court concluded that the injury of the plaintiffs fell into

the first category, because “the harm Plaintiffs allege—being misled by a debt collector about the

rights the FDCPA gives to debtors—is precisely the type of harm—abusive debt-collection

practices—the FDCPA was designed to prevent.” Id. at 760. It therefore held that the plaintiffs

“have satisfied the concreteness prong of the injury-in-fact requirement of Article III standing by

alleging that [the debt collector’s] purported FDCPA violations created a material risk of harm to

the interests recognized by Congress in enacting the FDCPA.” Id. at 761.

However, the MSPA double-damages provision is not designed to protect the interests of

the insured; instead, “[t]he sole interest of Congress [in enacting the MSPA] was to provide that

Medicare would not have to pay ahead of private carriers in certain situations.” Baptist Mem’l

Hosp., 45 F.3d at 998. Because the alleged injury to Duncan’s estate is not the type of harm that

Congress intended to protect through the MSPA, Lynette Duncan needs to fit her claim into the

second category of statutory violations under Spokeo and Macy: “where there is a ‘bare’ procedural

21
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

violation . . . a plaintiff must allege ‘additional harm beyond the one Congress has identified.’”

Macy, 897 F.3d at 756 (quoting Spokeo, 136 S. Ct. at 1549).

Not all circuits agree with the injury-in-fact requirement to establish standing in cases

involving MSPA’s double-damages provisions.

In Netro v. Greater Baltimore Medical Center, Inc., the Fourth Circuit found standing for

the purposes of an MSPA claim through calling a plaintiff’s injury “a partial assignment of the

Government’s damages claim.” Netro v. Greater Baltimore Med. Ctr., Inc., 891 F.3d 522, 527

(4th Cir. 2018) (quoting Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.

765, 773 (2000)). To arrive at this result, Netro analogized to qui tam standing under the False

Claims Act discussed in Stevens, and concluded that to hold otherwise would deem “Congress [to

have] indulged in a patently meaningless act—i.e., of passing a provision with no practical effect,

just for the heck of it.” Id. at 527. Netro further explains that “[j]ust as courts should not use their

Article III powers to draft an advisory opinion, we should not rush to impute to Congress the

drafting of a purely advisory provision.” Ibid.

Of course, “[c]ourts should not render statutes nugatory through construction.” United

States v. Tohono O’Odham Nation, 563 U.S. 307, 315 (2011). Thus, “[w]e decline to render

Congress’ decision to include a [private cause of action in the MSPA] nugatory, thereby offending

the well-settled rule that all parts of a statute, if possible, are to be given effect.” Am. Textile Mfrs.

Inst., Inc. v. Donovan, 452 U.S. 490, 513 (1981).

But courts need not invent injuries where none exists to preserve the validity of the private-

right-of-action provision of the MSPA. We “will not engraft a remedy on a statute, no matter how

salutary, that Congress did not intend to provide.” Thompson v. Thompson, 484 U.S. 174, 187

(1988) (quoting California v. Sierra Club, 451 U.S. 287, 297 (1981)).

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

The MSPA private cause of action is not a nugatory provision. For example, to satisfy the

MSPA standing requirement, an insured could show that he suffered injury due to the primary

payer’s refusal to pay medical costs even though Medicare paid such costs, if the insured wished

to be treated by doctors or in facilities that do not accept Medicare patients but would accept

beneficiaries of certain primary plans. Or Medicare might not cover a treatment that would be

covered by a primary plan, thus leaving the insured with less or lower quality medical care. Even

though in these situations the insured’s claim against the primary plan would be contractual, it

could also grant the insured standing to bring an MSPA claim to enforce Medicare’s right to

reimbursement, because the insured suffered an independent injury due to Medicare’s making

conditional payments when the primary plan refused to pay medical costs. The plaintiff could thus

attempt to show that “(1) it 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.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (quoting Lujan, 504 U.S. at 560–61).

Additionally, the MSPA private cause of action is available to health-care providers who

have not been paid by a primary plan but instead by Medicare as a secondary payer under the

MSPA. Mich. Spine & Brain Surgeons, 758 F.3d at 788. “[P]roviders usually suffer their own

injury when private insurers refuse to pay, because providers generally are paid less by Medicare

than they would be paid by private insurers.” Bio-Med. Applications, 656 F.3d at 295–96.

Accordingly, the MSPA “empowers healthcare providers to sue private insurers who violate the

[MSPA]. It then enables Medicare to pursue its reimbursement out of the proceeds recovered by

23
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

the victorious healthcare providers.” Id. at 296. MSPA’s double-damages provision under private

cause of action, 42 U.S.C. § 1395y(b)(3)(A), is therefore not nugatory.

Thus, we disagree with Netro’s extending of qui-tam-like standing under a non-qui tam

statute, simply by the contrivance of creating a derivative injury by a deemed “partial assignment”

of the government’s recoupment interest. See Netro, 891 F.3d at 527. There is no indication in

the statute that Congress intended the MSPA to be interpreted as creating a “partial-assignment”

provision solely for the purpose of granting standing to otherwise non-injured private plaintiffs.

Of course, an MSPA claim can be contractually assigned. See MSPA Claims 1, LLC v. Tenet

Florida, Inc., 918 F.3d 1312 (11th Cir. 2019) (holding that a valid assignment of an MSPA claim

bestowed MSPA standing upon the assignee, a Medicare Advantage Organization (“MAO”)); US

Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 1120 (10th Cir. 2007) (“If a valid assignment

confers standing, an invalid assignment defeats standing if the assignee has suffered no injury in

fact himself.”); MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 935 F.3d 573, 581

(7th Cir. 2019) (holding that without a valid assignment of an MSPA claim, a further purported

assignment “conveyed nothing, and thus the plaintiffs had no rights to enforce and no standing to

sue”).

As the dissent in Netro points out, all six circuits to address the issue concluded that MSPA

is not a qui tam statute and a plaintiff suing under the MSPA sues only to remedy his own injury.

Netro, 891 F.3d at 534 (Traxler, J., dissenting). To arrive at its partial-assignment construct, the

Netro majority relied on pre-Spokeo caselaw. Id. at 535 (Traxler, J., dissenting). But as Spokeo

cautions, “Article III standing requires a concrete injury even in the context of a statutory

violation,” some “additional harm beyond the one Congress has identified.” Spokeo, 136 S. Ct. at

1549. The Netro dissent stated that the only circuit to address at the time a fact pattern similar to

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Netro after Spokeo was decided was this court’s unpublished opinion in Gucwa v. Lawley, 731 F.

App’x 408 (6th Cir. 2018). Netro, 891 F.3d at 535 (Traxler, J., dissenting). Gucwa clarified the

requirement of an injury-in-fact to be eligible for double damages under the MSPA. While not

controlling, its reasoning is persuasive.

In Gucwa, a worker who was injured on the job, Marusza, and his girlfriend, Gucwa,

brought an action alleging several state and federal claims, including a double-damages MSPA

claim, against the workers’ compensation administrator and the doctors who had treated Marusza.

Gucwa, 731 F. App’x at 410. This court held that the MSPA was not a qui tam statute, and that

Marusza was required to show that he had suffered injury-in-fact to establish his Article III

standing. Id. at 413. That Marusza could not do. Id. at 414. Marusza did not allege any financial

harm from the fact that the workers’ compensation administrator at some point denied payment of

Marusza’s continued medical bills but those bills were paid by Medicare, according to a reduced

schedule agreed by providers with Medicare. Marusza attempted to show standing by arguing that

under Stalley, 517 F.3d at 916, a plaintiff has standing under the MSPA as long as he is a Medicare

beneficiary denied coverage by a primary payer. Ibid. This court disagreed, pointing out that

Marusza misrepresented Stalley, where the court held that a “self-appointed bounty hunter” who

was not even a Medicare recipient did not have standing under the MSPA. Ibid. (quoting Stalley,

517 F.3d at 919). The converse, however, was not necessarily true. “[S]uch a holding would be

directly at odds with the Supreme Court’s rulings in Lujan, [504 U.S. 555 (1992)], and Spokeo,

[136 S. Ct. 1540 (2016)].” Ibid. Since Marusza could not show financial harm resulting from his

medical bills being paid by Medicare instead of the workers’ compensation fund and alleged only

that Medicare suffered financial harm, this court found the allegations insufficient to establish

Marusza’s Article III standing. Id. at 415.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Similarly, Lynette Duncan does not allege here that the estate of David Duncan suffered

any financial harm when Liberty Mutual did not immediately pay David Duncan’s medical costs.

The medical costs were paid by Medicare, and the only parties who may have suffered as a result

were Medicare—which was promised and eventually received reimbursement of its conditional

payments—and Medicaid—which was also promised a reimbursement—as well as medical

providers, one of which, McLaren Oakland, intervened to assert its claims on its own behalf. The

estate of David Duncan was subject to proofs of claim by Medicaid and McLaren Oakland for

Duncan’s medical expenses, the reimbursement of which both Medicaid and McLaren Oakland

pursued as intervenors in Duncan estate’s suit against Liberty Mutual. In other words, Medicaid

and McLaren Oakland made a protective filing to ensure disbursement of any funds received by

the estate of David Duncan from Liberty Mutual as a reimbursement for Duncan’s medical

expenses covered by his no-fault insurance. David Duncan’s estate does not allege that either

Medicaid or McLaren Oakland tried to collect payments directly from the estate nor that the estate

could keep any such payments if they occurred.

The estate of David Duncan therefore does not have a redressable injury in this action,

because it failed to establish that it suffered any injury, financial or otherwise. For example,

Lynette Duncan could have argued that the quality or quantity of medical services that David

Duncan received was decreased because it was Medicare, instead of Liberty Mutual, that was

paying the bills. But she did not allege that.

If we were to agree with Lynette Duncan’s arguments, the result would be to recognize a

new kind of injury per se caused by a primary insurer’s failure to promptly reimburse Medicare’s

conditional payments under the MSPA. But a plaintiff does not “automatically satisf[y] the injury-

in-fact requirement whenever a statute grants a person a statutory right and purports to authorize

26
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

that person to sue to vindicate that right.” Spokeo, 136 S. Ct. at 1549. The MSPA is also not a qui

tam statute and private plaintiffs must therefore satisfy the Article III standing requirement. See

Stalley, 517 F.3d at 919. In other words, a private “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 (quoting Woods v. Empire Health Choice, Inc., 574 F.3d 92, 101 (2d Cir.

2009)).

Furthermore, if we were to agree with Lynette Duncan’s interpretation of the MSPA, the

result would be that whenever a primary plan invoked process to dispute conditional payments

made by Medicare, as invited by CMS conditional payment letters, it would be in violation of the

MSPA and subject to double damages under the private cause of action provision. “We think that

the words of the [MSPA], fairly read in the light of the purpose, disclosed by its own terms, require

no such harsh and incongruous result.” Haggar Co. v. Helvering, 308 U.S. 389, 395 (1940)

(discussing the National Industrial Recovery Act).

2. Regulatory Burden

The only statutory harms that Lynette Duncan asserts are a statutory violation and a

regulatory burden under 42 C.F.R. § 411.51(a). As explained above, a statutory violation of the

MSPA does not bestow Article III standing on a private plaintiff who was not otherwise injured.

As for the alleged regulatory burden, the implementing regulation of the MSPA states in relevant

part:

§ 411.51 Beneficiary’s responsibility with respect to no-fault insurance.
(a) The beneficiary is responsible for taking whatever action is necessary to
obtain any payment that can reasonably be expected under no-fault insurance.
(b) Except as specified in § 411.53, Medicare does not pay until the
beneficiary has exhausted his or her remedies under no-fault insurance.

27
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

(c) Except as specified in § 411.53, Medicare does not pay for services that
would have been covered by the no-fault insurance if the beneficiary had filed a
proper claim.
(d) However, if a claim is denied for reasons other than not being a proper
claim, Medicare pays for the services if they are covered under Medicare.

42 C.F.R. § 411.51. The cross-referenced § 411.53 provides:

§ 411.53 Basis for conditional Medicare payment in no-fault cases.
(a) A conditional Medicare payment may be made in no-fault cases under
either of the following circumstances:
(1) The beneficiary has filed a proper claim for no-fault insurance
benefits but the intermediary or carrier determines that the no-fault
insurer will not pay promptly for any reason other than the
circumstances described in § 411.32(a)(1). This includes cases in
which the no-fault insurance carrier has denied the claim.
(2) The beneficiary, because of physical or mental incapacity, failed
to meet a claim-filing requirement stipulated in the policy.
(b) Any conditional payment that CMS makes is conditioned on
reimbursement to CMS in accordance with subpart B of this part.

42 C.F.R. § 411.53. Further, 42 C.F.R. § 411.32(a)(1) includes the following limitation: “Medicare

benefits are secondary to benefits payable by a primary payer even if State law or the primary

payer states that its benefits are secondary to Medicare benefits or otherwise limits its payments to

Medicare beneficiaries.”

The term “promptly, when used in connection with primary payments, except as provided

in § 411.50, for payments by liability insurers, means payment within 120 days after receipt of the

claim.” 42 C.F.R. § 411.21. Furthermore, under § 411.50,

Prompt or promptly, when used in connection with payment by a liability insurer
means payment within 120 days after the earlier of the following:
(1) The date a claim is filed with an insurer or a lien is filed against a
potential liability settlement.
(2) The date the service was furnished or, in the case of inpatient hospital
services, the date of discharge.

42 C.F.R. § 411.50.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Lynette Duncan claims that 42 C.F.R. § 411.51(a) (“The beneficiary is responsible for

taking whatever action is necessary to obtain any payment that can reasonably be expected under

no-fault insurance”) requires her to bring an action against Liberty Mutual and thus incur costs to

vindicate Medicare’s reimbursement rights as a secondary payer under the MSPA. This reads far

too much into the regulation. A more correct reading would be that a Medicare beneficiary with

no-fault insurance is required to file a claim for the payment of medical costs with the no-fault

insurer first. This is consistent with the status of no-fault insurers as primary payers under the

MSPA and is no more burdensome than the regular process of filing a claim with a no-fault insurer

when Medicare coverage is not involved. 42 C.F.R. § 411.51(d) then provides that Medicare pays

for covered services “if a [no-fault] claim is denied for reasons other than not being a proper

claim.” Under § 411.53(a)(1), Medicare may make conditional payments if the beneficiary had

filed a claim with the no-fault insurer, but the intermediary or carrier determines that the no-fault

insurer will not make the payments promptly. That is precisely what happened here.

There is no indication in this clear regulatory framework that a Medicare beneficiary is

required to bring suit to compel his no-fault insurer to reimburse Medicare for its conditional

payments. Of course, a Medicare recipient may choose to bring an action against a no-fault insurer

in hopes of obtaining double damages contemplated under the MSPA. Indeed, this seems to be

the case here. The double-damages incentive of the private right of action under the MSPA is

meant to protect Medicare’s interest and is a legitimate consideration for bringing a suit against

recalcitrant primary insurers. See Baptist Mem’l Hosp., 45 F.3d at 998; Bio-Med. Applications,

656 F.3d at 295. However, such purported protection of Medicare’s interests alone does not suffice

to bestow Article III standing on a plaintiff who himself has not suffered any injury-in-fact

otherwise. See Spokeo, 136 S. Ct. at 1549. “[T]here is no such thing as an anything-hurts-so-long-

29
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

as-Congress-says-it-hurts theory of Article III injury.” Huff v. TeleCheck Servs., Inc., 923 F.3d

458, 463 (6th Cir. 2019), cert. denied, 140 S. Ct. 1117 (2020) (quotation omitted). If the

voluntarily incurred expenses of bringing a suit under the MSPA could be used by themselves to

show “an invasion of a legally protected interest which is . . . concrete and particularized,” Lujan,

504 U.S. at 560, this element of Article III standing would always be satisfied by any plaintiff who

incurs legal expenses. But “interest in attorney’s fees is, of course, insufficient to create an Article

III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 480 (1990).

***

No discernible regulatory burden was imposed on David Duncan under 42 C.F.R.

§ 411.51(a), and Lynette Duncan failed to demonstrate otherwise that the estate of David Duncan

suffered injury as a result of Liberty Mutual’s failure to promptly reimburse Medicare for its

conditional payments. Therefore, we hold that Lynette Duncan failed to establish Article III

standing to bring a claim under the MSPA.

Although Lynette Duncan purports to find it “awkward” that Liberty Mutual challenged

her standing in federal court after it removed the case from state court, the MSPA claim involves

federal-question jurisdiction, and Lynette Duncan still needs to establish her Article III standing

for her federal claim. See Lujan v. Defs. of Wildlife, 504 U.S. at 561; see also Schueler v. Weintrob,

105 N.W.2d 42, 48 (Mich. 1960) (“Michigan has, of course, adhered to the rule that a State court

is bound by the authoritative holdings of Federal courts upon Federal questions.”); Harper v.

Brennan, 18 N.W.2d 905, 906 (Mich. 1945) (“We have in mind that where federal questions are

involved we are bound to follow the prevailing opinions of the United States Supreme Court.”).

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

We therefore hold that the district court properly dismissed Lynette Duncan’s MSPA claim

for lack of standing, before remanding her remaining claims to state court. Because we hold that

Lynette Duncan lacked standing to bring her only claim that would trigger federal jurisdiction

under the MSPA, we need not reach the merits of her MSPA claim.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal of Lynette Duncan’s

double-damages claim under the MSPA for lack of standing.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

HELENE N. WHITE, Circuit Judge, dissenting in part.

I respectfully dissent from the majority’s determination that Lynette Duncan, as

representative of David Duncan’s estate, lacks Article III standing to pursue a claim under the

Medicare Secondary Payer Act (“MSPA”). And to the extent the majority also holds that Congress

did not intend to create a private cause of action under these circumstances, I dissent from that

determination as well. I would also reverse the district court’s merits determination because it

imposes a requirement not found or implied in the statute.

This court has been consistent in its description of the history and purposes of the MSPA,

as accurately set forth in Section I.B. of the majority opinion. In an effort to control costs, the

MSPA changed Medicare’s status from primary payer to secondary payer, but provided that “when

a primary plan must pay but will not do so promptly, Medicare may make a conditional payment,”

Bio-Med. Applications of Tenn., Inc. v. Cent. States Se. & Sw. Areas Health & Welfare Fund,

656 F.3d 277, 286 (6th Cir. 2011), and then recover the conditional payment from the primary

payer. The MSPA also created a private cause of action for double damages when medical bills

are improperly denied by primary payers and instead paid by Medicare. 42 U.S.C.

§ 1395y(b)(3)(A). In such cases, the government is subrogated to the right of the private party for

the recovery of such funds. 42 U.S.C. § 1395y(b)(2)(B)(iv); Manning v. Utilities Mut. Ins. Co.,

Inc., 254 F.3d 387, 394 (2nd Cir. 2001). The double-damages recovery is not a windfall for the

private plaintiff, but rather a necessary incentive for private plaintiffs to pursue enforcement of

their rights against primary payers, to the benefit of Medicare. Bio-Med. Applications, 656 F.3d

at 294–95. Without the availability of double damages in cases like this, where the plaintiff is

forced to establish the primary payer’s liability through the pursuit of litigation, a private plaintiff

might have no incentive to bring the case because Medicare would be entitled to collect the bulk,

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

if not all, of the recovery through reimbursement. Thus, the double-damage provision simply

assures that the victorious plaintiff receives something for her efforts.

It is unclear whether the majority concludes that Duncan’s claim does not fall within the

private-action provision of the MSPA, or that it does, or might, but nevertheless fails to meet

Article III’s standing requirements. There is language to support both interpretations. The

majority’s discussion—in the context of not rendering the provision nugatory—of alternative

circumstances in which an insured might have the requisite injury-in-fact to pursue a private action

would seem to address the proper construction of the statute, not the constitutional standing issue.

Likewise for the majority’s discussion of the MSPA’s not being a qui tam statute. But elsewhere,

the majority speaks solely in Article III standing terms. I address both possibilities.

The state lawsuit successfully pursued by Duncan seems to be precisely the type of action

contemplated by the MPSA’s private-action provision. Although Duncan could have simply

accepted that Medicare satisfied the medical bills and confined the state lawsuit to a claim for other

items covered by Michigan No-Fault insurance, such as allowable expenses or wage loss, the estate

endeavored to establish its entitlement to all the benefits Liberty Mutual had denied. Apparently,

as contemplated by the MSPA, Duncan and her attorney were more familiar with the facts of the

case and the operation of Michigan’s No-Fault law, see Stalley v. Catholic Health Initiatives,

509 F.3d 517, 524 (8th Cir. 2007) (“The thinking behind the statute is apparently that . . . the

beneficiary can be expected to be more aware than the government of whether other entities may

be responsible to pay his expenses . . .”), and believed that Liberty Mutual had wrongfully denied

coverage for Duncan’s medical bills, shifting responsibility to Medicare. As a result of the lawsuit,

Medicare recovered its conditional payments where it otherwise would not have. There is no

sound reason for construing the MSPA as excluding all claims by insureds who, like Duncan,

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

cannot show personal financial harm caused by the primary payer shifting responsibility to

Medicare, especially where such harm is likely never to occur.

The majority asserts that its interpretation does not render the MSPA’s private cause of

action nugatory because under different circumstances an insured might show injury resulting from

a primary payer’s refusal to pay medical costs. The majority offers the examples of an insured

wishing to be treated by doctors or in facilities that do not accept Medicare, and an insured desiring

to receive treatments not covered by Medicare that would have been covered by the primary payer.

But it is unclear how a patient’s desire for treatments that the patient either did not receive, or at

the very least Medicare did not pay for, would support a claim for double damages under the

MSPA, which, by definition, involves conditional payment by Medicare. Thus, I am not persuaded

by the majority’s argument that its approach would not render the MSPA’s private-action provision

nugatory in the case of insureds.

The majority also devotes a significant portion of its analysis to the fact that the MSPA is

not a qui tam statute. That is correct; the MSPA is not a qui tam statute. And for that reason, this

court properly dismissed the plaintiff’s claim in Stalley v. Methodist Healthcare for lack of

standing. 517 F.3d 911, 919 (6th Cir. 2008). But the plaintiff in Stalley v. Methodist sought to

pursue a double-damage claim against tobacco companies for medical expenses paid by Medicare

on behalf patients with lung disease. Stalley was not a Medicare beneficiary, was not Medicare

eligible, and was not denied coverage for a medical procedure by a primary payer. Id. at 916.

Therefore, a statute specifically permitting suit in the government’s name by a stranger to the

underlying payment dispute—a qui tam statute—would have been necessary for Stalley to have

standing. Here, however, Duncan is not a stranger to the underlying payment dispute. Although

her claim for double damages under the MSPA is a statutory cause of action, it cannot be divorced

34
No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

from the alleged improper denial of benefits payable under David Duncan’s insurance contract.

Recognizing that the MPSA covers double-damage actions brought by insureds against their

insurers when they wrongfully deny medical payments does not turn the MPSA into a qui tam

statute. See Netro v. Greater Baltimore Med. Ctr., Inc., 891 F.3d 522, 528 (4th Cir. 2018).

The same lines of reasoning lead me to conclude that Duncan has Article III standing to

pursue a claim under the MSPA. The majority supports its decision with the assertion that courts

should not “invent injuries where none exist to preserve the validity of the private-right-of-action

provision of the MSPA.” But we need not invent an injury in this case to find standing—Duncan’s

loss of the benefit of his bargain with Liberty Mutual is a cognizable injury-in-fact. Springer v.

Cleveland Clinic Emp. Health Plan Total Care, 900 F.3d 284, 287 (6th Cir. 2018). In that regard,

this case is entirely unlike the cases in which this court has found that plaintiffs failed to establish

Article III standing for bare procedural violations. See Soehnlen v. Fleet Owners Ins. Fund,

844 F.3d 576, 582-583 (6th Cir. 2016) (plaintiff has no standing to bring ERISA claim where

plaintiff cannot show that limitations imposed by health plan in and of themselves constitute an

“injury”); Lyshe v. Levy, 854 F.3d 855, 858-61 (6th Cir. 2017) (plaintiff lacked standing to assert

violation of Fair Debt Collection Practices Act because the harm alleged was not concrete or of

the kind the FDCPA was designed to prevent); Hagy v. Demers & Adams, 882 F.3d 616, 621-23

(6th Cir. 2018) (plaintiff lacked standing for “bare procedural violation” of the FDCPA that did

not create risk of double payment, cause anxiety, or lead to any other concrete harm); Huff v.

Telecheck Servs., 923 F.3d 458, 468 (6th Cir. 2019) (plaintiff who could not establish actual injury

or a certainly impending, material risk of harm under Fair Credit Reporting Act lacked standing).

Duncan’s injury from Liberty Mutual’s breach of contract is not a mere creature of statute; it is a

true injury in fact.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

The only way to get around this is to create a wall between the breach of contract and the

statutory claim under the MSPA. But such a wall is artificial and elevates the majority’s distaste

for statutory claims to a constitutional principal that undermines the will of Congress. The majority

offers no case supporting the proposition that Congress may not constitutionally authorize a private

plaintiff to recover double damages for breach of contract in order to increase the likelihood that

a governmental agency will be reimbursed for conditional payments. I note that Gucwa v. Lawley,

731 F. App’x 408 (6th Cir. 2018), which the majority relies on as persuasive, albeit non-binding,

authority, is distinguishable in this regard. There, the primary payer was a workers’ compensation

insurer. The plaintiff’s entitlement to workers’ compensation benefits in that case was statutory,

not contractual, so it could more plausibly be argued that the plaintiff, whose medical expenses

were covered by Medicare, suffered a mere procedural violation. Here, Duncan’s right to medical

benefits was contractual, and the contractual breach supports the private cause of action under the

MSPA.

Liberty Mutual had no obligation to Medicare, Medicaid, or McLaren Oakland independent

of its relationship to Duncan. Although the MSPA double-damages claim is distinct from the

contractual claim that Duncan pursued in the underlying state-court action, the MSPA claim cannot

fairly be regarded as entirely independent of Liberty Mutual’s contractual obligations to David

Duncan.1 And this court has been clear that an insured’s standing to pursue a breach-of-contract

action does not depend on a showing of monetary loss flowing from the breach. Springer, 900 F.3d

1
It is a separate question, not raised by the parties, whether Duncan should have brought her MSPA claim in
the same action in which she brought her contract claim. Had she done so, and had the case been removed at that time,
I can only assume that the majority would still hold the MPSA claim subject to dismissal for failure to show monetary
damages flowing from Liberty Mutual’s denial of liability for medical benefits.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

at 287 (6th Cir. 2018) (holding that an insurance beneficiary suffers an injury-in-fact when denied

health benefits owed under the plan, without regard to whether the beneficiary suffered out-of-

pocket loss).

The majority recognizes that Medicare is subrogated to the beneficiary’s right to receive

payments from the primary payer, and Medicaid2 and McLaren Oakland filed claims against

Duncan’s estate to secure reimbursement from any recovery by the estate from Liberty Mutual.

Although these subrogation rights clearly establish the subrogees’ standing to intervene in this

case, it is not clear why those rights, or the initial payments that created them, negate the Duncan

estate’s Article III standing to pursue statutory double damages under the MSPA for Liberty

Mutual’s failure to make timely payment of medical benefits under its contract, given that the

MSPA claim provides the recovery from which reimbursement to the subrogees is made feasible.

The Duncan estate’s failure to receive the benefit of its bargain with Liberty Mutual is the harm

underlying both the breach-of-contract and MSPA claims. Although Medicare suffered a financial

harm when it conditionally covered David Duncan’s medical costs, Medicare did so to alleviate

the burden to Duncan and his medical providers from Liberty Mutual’s breach of contract. The

fact that a third-party, here, Medicare, stepped in to alleviate the harm resulting from the breach

of contract does not erase the insured’s injury-in-fact. See Springer, 900 F.3d at 287–88.

Finally, it is not clear why the majority’s proposed hypotheticals establish Article III

standing where Duncan falls short. The majority recognizes that “in all these situations the

insured’s claim against the primary plan would be contractual,” but asserts nonetheless that the

2
It appears that both Medicare and Medicaid made payments when Liberty Mutual failed to cover Duncan’s
medical bills.

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

hypothetical plaintiffs would have standing because “the insured suffered an independent injury

due to Medicare’s making conditional payments when the primary plan refused to pay medical

costs.” However, in the majority’s hypotheticals, as here, the underlying injury is not due to

Medicare’s making conditional payments; rather, it is due to the primary plan’s refusal to pay

claims in violation of a contract. Although the extent of the harm may be different, these

hypothetical plaintiffs all suffer the same underlying injury as the Plaintiff in this action—denial

of the benefits owing under their primary plan. The fact that Duncan’s injury, like all the

hypothetical plaintiffs described in the majority opinion, also supports a claim for breach of

contract does not negate her standing to seek double damages under the MSPA.

Turning to the merits determination, although the statute requires that the primary payer’s

“demonstrated responsibility” for medical expenses be separately established in certain

circumstances, specifically in the instance of tortfeasor liability, such a showing is not required

when the claim is based on contract. Bio-Med. Applications, 656 F.3d at 290–91; 42 C.F.R.

§ 411.22(b)(3). And nowhere does the MSPA signal that bad faith or unreasonableness is required,

or that Medicare must have first demanded reimbursement of the amount sought to be recovered

by the private plaintiff. Congress could have so provided, but did not, apparently being more

concerned with incentivizing private plaintiffs to recover funds from which to reimburse Medicare

for conditional payments that rightfully should have been made by primary payers.

For the foregoing reasons, I would reverse the district court’s determinations that Lynette

Duncan lacks standing to pursue a claim under the MSPA as the personal representative of David

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No. 19-1796, Duncan v. Liberty Mut. Ins. Co.

Duncan’s estate3 and that Liberty Mutual has no liability under the double-damages provision of

the MPSA.

3
I note that the Eleventh and Fourth Circuits have held that a Medicare beneficiary has standing to pursue a
claim under the MSPA where the beneficiary alleges that the primary payer failed to fulfil its obligation to cover the
beneficiary’s medical costs and Medicare made conditional payments to cover those costs. Blue Cross & Blue Shield
of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) (per curiam) (holding that employees “who have not suffered an injury
in that they have been covered by Medicare for the medical care [that] they have received retain a sufficient interest
in this action for purposes of the Constitutional ‘case or controversy’ requirement”); Netro 891 F.3d at 526 (holding
that a plaintiff suffers a recognizable injury-in-fact where defendant was legally obligated to pay for plaintiff’s care
and refused to do so). Other circuits have assumed beneficiary standing, while not directly ruling on the issue.
See Woods v. Empire Health Choice, Inc., 574 F.3d 92, 97 (2d Cir. 2009) (“Woods’s evidence, even if considered,
can establish only that he has standing to pursue an action to recover the amounts he alleges to have been improperly
paid by Medicare for medical care that he personally received.”); Stalley, 509 F.3d at 527 (“Congress contemplated
that Medicare beneficiaries could recover double damages to vindicate their private rights when their primary payers
fail to live up to their obligations, even if Medicare has made a conditional payment of the beneficiaries’ expenses.”);
Manning v. Utilities Mut. Ins. Co., 254 F.3d 387, 394 (2d Cir. 2001) (“The MSP creates a private right of action for
individuals whose medical bills are improperly denied by insurers and instead paid by Medicare, and the government
is subrogated to the right of the private citizen for the recovery of such funds.”) I recognize that all these cases, except
Netro, were decided before Spokeo. Still, the majority cites no case holding that an insured bringing an MSPA double-
damages case under these circumstances lacks standing and so creates a circuit split.

39