Michigan Court of Appeals; Docket # 339049; Unpublished
Judges Cameron, Jansen, and O’Connell per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Obligation of Claimant to Submit to Physician Examination
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed the lower court’s dismissal of Plaintiff Jaylin Siba’s (“Siba”) complaint regarding his failure to attend an independent medical examination. The Court of Appeals reversed because the lower court failed to adequately explain why it dismissed the case and without such an explanation there were reasonable inferences as to why Siba may have missed the examination.
Siba was injured in a motor vehicle accident. He applied for PIP and uninsured motorist benefits from Defendants Farm Bureau Mutual Insurance, Farm Bureau General Insurance Company, (together called “Farm Bureau”) and Safeco Insurance Company (“Safeco”). When Defendants failed to provide Siba with benefits, he brought an action against them for the benefits. After nearly 10 months of discovery, the trial court dismissed Siba’s complaint with prejudice after Siba failed to attend a court-ordered independent medical examination (“IME”).
The Court of Appeals first noted that a lower court’s dismissal of a complaint will be reviewed for abuse of discretion. However, the Court will review the lower court’s interpretation and application of a rule de novo. The Court cited to Donkers v. Kovach, 277 Mich. App. 366,369 (2007), which explains that dismissal is the harshest penalty available and a trial court must follow the procedures set out in in the court rules before going forward with an involuntary dismissal. The factors that should be considered when dismissing a complaint are: (1) whether the violation was willful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice.
In this case, the Court of Appeals found that the trial court failed to consider if Siba’s failure to attend the IME meeting was willful or accidental. The trial court did not make a finding either way and it suggested that Siba may have been negligent in his failure to go to the IME appointment. The trial court further failed to consider any of the other factors that were required of it. Although there was evidence suggesting Siba had not complied with previous court orders, the trial court did not analyze that factor. The trial court also did not examine the prejudice to Farm Bureau and Safeco, which was important because Siba had already submitted to an earlier IME appointment. Finally, the Court of Appeals found it significant that the trial court did not analyze lesser sanctions available.
“In this case, the trial court’s finding regarding whether Siba’s failure to attend the court ordered IME was willful or accidental was unclear. . . . [T]he record contains no evidence that Siba made any attempt to cure his noncompliance and attend a second IME despite filing a motion for reconsideration of the trial court’s dismissal order. This history may support the trial court’s decision, but the trial court did not make a record that it was considered. . . . At that point, it is doubtful that Farm Bureau’s ability to mount a defense was truly prejudiced by Siba’s failure to attend the second IME after he had already attended one IME. . . . Finally, the trial court did not analyze on the record whether dismissal with prejudice was an appropriate sanction compared to lesser possible sanctions.”
Thus, the Court of Appeals vacated the order for dismissal and remanded the case back to the trial court.
