Michigan Court of Appeals; Docket #358546; Unpublished
Judges Gadola, Cavanagh, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Obligation of Claimant to Submit to Physical Examination [§3151]
Discovery Sanctions in First-Party Cases
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s order dismissing Plaintiff Mager Drew’s first-party action against Defendant Nationwide Mutual Fire Insurance Company (“Nationwide”), as a sanction for Drew’s failing to appear for two insurance medical examinations (IME). The Court of Appeals held that the trial court erred by dismissing Drew’s action without carefully considering both alternative sanctions and the relevant factors for determining whether the sanction of dismissal is appropriate, set forth in Vicencio v Ramirez, 211 Mich App 501 (1995). Notably, the Court of Appeals rejected Nationwide’s argument that the trial court was not required to evaluate such factors because Drew’s violation was statutory, and not merely a discovery violation.
Mager Drew was injured in a motor vehicle accident, after which he sought no-fault PIP benefits from Nationwide, his no-fault insurer. Nationwide failed to pay the benefits to which he argued he was entitled, prompting Drew to file the underlying first-party action. During discovery, Nationwide scheduled two IMEs for Drew to undergo—one with an orthopedic surgeon on September 10, 2020, and one with a neurologist on October 28, 2020. Drew attempted to reschedule the September 10th IME twice and the October 28th IME once—citing concerns about his “being in a high-risk population for COVID-19 and also having undergone a recent stent placement resulting from heart conditions”—but during the period in which he was requesting to reschedule the IMEs, he attended at least one physical therapy session and one doctor’s appointment. Nationwide proceeded to file a motion to dismiss based on Drew’s failure to appear for its scheduled IMEs, which the trial court granted Nationwide’s motion, finding Drew’s conduct in appearing for his own doctor’s appointments but not the IMEs part of a “pattern of deliberate delay and willful misconduct.”
The Court of Appeals reversed the trial court’s dismissal of Drew’s action, holding that the trial court erred in resorting to dismissal without carefully considering alternative sanctions and evaluating the factors set forth in prior appellate caselaw. Those factors are:
“(1) whether the violation was wilful 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. [Id.; see also Duray Dev, LLC v Perrin, 288 Mich App 143, 165, 792 NW2d 749 (2010).]”
The trial court did not consider these factors, nor did it consider the reasons for Drew’s appearance at his own appointments but not the IMEs, such as the fact that “his medical providers made special accommodations for him to protect him from contracting COVID-19.” Moreover, the trial court failed to consider the fact that Drew complied with Nationwide’s other discovery requests and merely attempted to reschedule the IMEs, not simply cancel them.
“In this case, the trial court made no effort to carefully consider alternative sanctions or evaluate all available options on the record when it concluded that dismissal was appropriate. The trial court noted that plaintiff had attended scheduled appointments with his own medical providers but failed to appear for the scheduled IMEs around the same period of time. The trial court stated that plaintiff ‘shows up from [sic] what he wants to show up for’ and that he displayed a ‘pattern of deliberate delay and . . . willful misconduct’ in failing to appear for the IMEs. However, the trial court neglected to analyze plaintiff’s purported ‘willful misconduct,’ such as considering the reasons for his failure to attend, nor did it consider any other factors on the record. In addition, while the trial court concluded that plaintiff’s violation of MCL 500.3151 was willful, it did not consider on the record that plaintiff complied with defendant’s other discovery requests, such as responding to written discovery and appearing for a deposition. The trial court made no mention of plaintiff’s assertions that for the medical appointments he did attend, his medical providers made special accommodations for him to protect him from contracting COVID-19. The trial court also failed to mention on the record that plaintiff was an elderly man who had heart complications and had recently undergone a heart procedure, which made him especially vulnerable, especially to complications resulting from COVID-19.3 While a court order is not necessary to require plaintiff to appear for an IME, see MCL 500.3151(1) (‘[A]t the request of an insurer the person shall submit to mental or physical examination by physicians’), plaintiff otherwise did not have a history of refusing to comply with previous court orders in this case. See MacArthur, 403 Mich at 477 (dismissal was an abuse of discretion where, in part, the plaintiff did not refuse discovery ‘in violation of a direct order of the trial court.’).
Nor did the trial court expressly examine the factor regarding prejudice. This factor is notable in this case because plaintiff did not simply cancel the scheduled IMEs, but instead offered to reschedul these examinations and stipulate to an order adjourning scheduling order dates, including extending the discovery cutoff date. While defendant correctly notes that the timing of an IME is important because it represents a ‘snapshot’ of a claimant’s health, the court failed to address on the record whether defendant would suffer any prejudice.”
Notably, the Court of Appeals found that, although Nationwide’s counsel identified these factors at the motion hearing, that did not mean that the trial court “carefully considered [them] or considered alternative sanctions on the record,” as is required.
“In addition, defendant argues that defense counsel identified the factors from Dean at the motion hearing, and the trial court noted that plaintiff displayed a pattern of deliberate delay and willful misconduct. However, merely hearing the arguments from the parties does not demonstrate that the court carefully considered these factors or considered alternative sanctions on the record. It is clear that the trial court did not ‘carefully evaluate all available options on the record,’ Vicencio, 211 Mich App at 507, such as those delineated in MCL 500.3153, when concluding that dismissal was appropriate. Because the trial court failed to consider any alternatives when determining whether the sanction of dismissal was appropriate, the trial court abused its discretion.”
The Court also rejected Nationwide’s argument—predicated on the Michigan Supreme Court’s decision in Muci v State Farm Mut Auto Ins Co, 478 Mich 178 (2007)—"that the trial court was not required to evaluate alternative sanctions or evaluate all options on the record before dismissing plaintiff’s claims because this was a statutory violation under the no-fault act, and not merely a discovery violation.” The Court noted that Muci was not applicable to this case and that, although cases like Vicencio “involved discovery violations and did not exclusively involve a plaintiff’s failure to submit for an IME,” there was “no reason to depart from the long line of cases holding that an abuse of discretion occurs when a court fails to place its reasoning and consideration of alternative sanctions on the record.”
“Muci is not applicable to this case. The factors laid out in Dean and Vicencio are for the court’s consideration in determining whether dismissal is a just and proper sanction. As noted above, this Court has repeatedly required trial courts to carefully consider alternative sanctions on the record and evaluate factors in determining that dismissal is appropriate. See Perrin, 288 Mich App at 165; Vicencio, 211 Mich App at 507. While defendant suggests that prior cases from this court involved discovery violations and did not exclusively involve a plaintiff’s failure to submit for an IME, we see no reason to depart from the long line of cases holding that an abuse of discretion occurs when a court fails to place its reasoning and consideration of alternative sanctions on the record.
In addition, the factors stated in Dean and Vicencio do not infringe on an insurer’s right to require an IME of a claimant under MCL 500.3151, nor do they preclude courts from dismissing a claim for a plaintiff’s failure to attend an IME. Conversely, in Muci, the applicable court rule directly conflicted with MCL 500.3151 because it added conditions as a predicate to an IME that MCL 500.3151 did not. Caselaw noting that ‘[t]he record should reflect that the trial court gave careful consideration to the factors involved and considered all its options in determining what sanction was just and proper,’ Kalamazoo Oil Co v Boerman, 242 Mich App 75, 86; 618 NW2d 66 (2000), is not analogous to the court-imposed conditions as a predicate to an IME in Muci, and MCL 500.3153 is largely silent as to factors the court should consider in determining sanctions. Accordingly, Muci is not applicable in the instant case, and the trial court was, as a proper exercise of its discretion, required to evaluate alternative sanctions or evaluate all options on the record before it dismissed plaintiff’s claim.”