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
*
Honorable Charles A. Moye, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
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:
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
1
To the extent Bradford's rehearing petition is a suggestion
for rehearing en banc, it is denied.