Suzann Barlow v. Edward C. Adams; K. L. Harring

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0643n.06
No. 09-1753
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SUZANN BARLOW,
Plaintiff-Appellant,
v.
EDWARD C. ADAMS; K. L. HARRING,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: MERRITT, KENNEDY, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Suzann Barlow was in a car accident in Port Huron, Michigan
with a semi-truck owned by K.L. Harring and driven by Edward Adams. She sued them. The
district court granted summary judgment for the defendants based on the Michigan No Fault Act.
See Mich. Comp. Laws Ann. § 500.3135. The Michigan Supreme Court has since overruled its own
precedent interpreting that Act. In light of that change, we vacate and remand.
Under Michigan law, a plaintiff must have “suffered death, severe impairment of body
function, or permanent serious disfigurement” to recover noneconomic damages from a motor-
vehicle accident. Mich. Comp. Laws Ann. § 500.3135(1). Barlow alleges that she has a severe
impairment of body function. The statute defines this element as “an objectively manifested
impairment of an important bodily function that affects the person’s general ability to lead his or her

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No. 09-1753
Barlow v. Adams, et al.
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normal life.” Id. § 500.3135(7). The district court granted summary judgment in favor of the
defendants, holding that Barlow was unable to demonstrate an effect on her general ability to lead
her normal life. This appeal followed.
Barlow challenges two aspects of that decision. First, she argues that the district court
wrongly applied subsection 2(a) of the No Fault Act as its summary-judgment standard rather than
Federal Rule of Civil Procedure 56. It is unclear from its opinion what standard the district court
applied. But the district court should have applied Rule 56, as required by the Rules Enabling Act.
28 U.S.C. § 2072(b); see Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437
(2010); Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 573–74 (6th Cir. 2008).
Second, she now argues that the district court applied the wrong substantive standard. The
court applied Kreiner v. Fischer, 683 N.W.2d 611 (Mich. 2004), which was then the leading case
regarding the No Fault Act. But the Michigan Supreme Court has since overruled Kreiner. See
McCormick v. Carrier, No. 136738, 2010 WL 3063150, at *14 (Mich. July 31, 2010). Moreover,
McCormick expressly overturned most of the language relied upon by the district court. See id. at
*9-11.
So it is unclear whether the district court applied the correct procedural standard, and very
clear that, through no fault of its own, it applied a now-invalid substantive standard. In addition, the
district court does not yet appear to have ruled on Barlow’s claim for economic damages. In light
of these circumstances, we vacate the court’s order granting summary judgment to the defendants
and remand the case for further proceedings consistent with this opinion.

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