Michigan Court of Appeals; Docket # 347317; Unpublished
Judges Krause, Servitto and Redford; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Court Orders for Refusal to Submit to Insurer Examinations [§500.3153]
TOPICAL INDEXING:
Discovery Sanctions in First-Party Cases
SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed the holding of the trial court dismissing plaintiff’s claim based on his failure to participate in discovery. In doing so, the Court found that the trial court had abused its discretion by dismissing the case “without placing its reasoning and consideration of alternative sanctions on the record.”
This case arose from an automobile accident in which plaintiff was involved as a pedestrian. Defendant was the insurer of the vehicle that injured plaintiff. Following the accident, plaintiff filed a complaint contending that defendant failed to pay PIP benefits that arose from the accident. During the course of discovery, defendant filed multiple motions to compel plaintiff to respond to discovery requests. Plaintiff failed to appear for a twice-noticed deposition, prompting the trial court to offer to grant defendant’s dismissal of the matter on the belief that “plaintiff’s failure to participate in discovery was a pattern.” Defendant declined, however, and the trial court entered an order compelling defendant to attend, and defendant did thereafter attend plaintiff’s deposition. Before the instant appeal, defendant notified plaintiff that he was required to appear for two orthopedic independent medical examinations (IMEs). Plaintiff did not appear for either IME, and gave no explanation for why this was. Consequently, defendant filed a motion seeking to dismiss the case, or alternatively, seeking an order to compel plaintiff to attend the IME. Plaintiff asked the trial court to enter an order compelling plaintiff to attend the IME rather than dismiss the case. The trial court instead offered defendant a choice of dismissing the matter with prejudice but without costs, or dismissing the matter without prejudice subject to plaintiff paying costs before refiling. Defendant chose the former, and plaintiff appealed.
On appeal, the Court noted that “[t]rial court’s possess the inherent authority to sanction litigant and their counsel, including the right to dismiss an action,” and that a trial court “may dismiss an action for a party’s failure to comply with a trial court order compelling discovery . . . [or] if a party fails to comply with the Michigan Court Rules or a trial court order.” In this case, the Court noted that a trial court “may make an order or impose sanctions for a person’s failure to comply with an insurer’s request for the person seeking personal protection insurance benefits to submit to an IME” under §§ MCL 500.2151(1) and MCL 500.3153. However, the Court clarified that “even when a trial court has discretion to dismiss a case, ‘[o]ur legal system favors disposition of litigation on the merits.’” Accordingly, the Court noted that the trial court is required to evaluate all options available and determine that the sanction of dismal is just before dismissing a case. In doing so, the following factors should be considered: “(1) whether the violation was wilful [sic] 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.”
Applying these principles to the case at bar, the Court noted that “[t]he record amply supports the trial court’s conclusion that plaintiff did, in fact, had a patter of failing to comply with discovery requests until directly ordered to respond.” However, the Court found that “as noted, the extreme sanction of dismissal should not be undertaken without careful consideration of the alternative on the record.” In this case, the Court pointed out several options, including:
(a) An order that the mental or physical condition of the disobedient person shall be taken to be established for the purposes of the claim in accordance with the contention of the party obtaining the order.
(b) An order refusing to allow the disobedient person to support or oppose designated claims or defenses, or prohibiting him from introducing evidence of mental or physical condition.
* * *
(d) An order requiring the disobedient person to reimburse the insurer for reasonable attorneys’ fees and expenses incurred in defense against the claim.
(e) An order requiring delivery of a report, in conformity with section 3152, on such terms as are just, and if a physician fails or refuses to make the report a court may exclude his testimony if offered at trial.
Further, the Court found that the trial court concluded plaintiff’s failure to attend the IME was willful, despite there being no such analysis made on the record and no inquiry conducted into whether plaintiff was suffering from a physical or mental impediment that barred him from participating in discovery. Thus, the Court found that the trial court had abused its discretion by “failing to place its reasoning and consideration of alternative sanctions on the record.”
