Michigan Court of Appeals; Docket #358267; Unpublished
Judges Garrett, O’Brien, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Nonattendance As a Basis for PIP Benefit Cutoff [§3151]
Obligation of a Claimant to Submit to Physician Examination [§3151]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals vacated the trial court’s denial of Defendant State Farm’s Mutual Automobile Insurance Company’s (“State Farm”) motion to dismiss Plaintiff Hannah Darling’s action for no-fault PIP benefits. The Court of Appeals held that the trial court abused its discretion by denying State Farm’s motion—which was based on Darling’s failure to attend insurance medical examinations (“IME(s)”) both the Court of Appeals (in a prior order) and the trial court ordered her to attend—without first considering the factors set forth in Vicencio v Ramirez, 211 Mich App 501 (1995). However, rather than remanding for an order granting State Farm’s motion to dismiss, the Court of Appeals remanded with instructions to the trial court that it conduct a Vicencio analysis and determine the appropriate sanction for Darling’s discovery violations.
Hannah Darling was injured in a motor vehicle accident in March of 2020, after which she sought no-fault PIP benefits from State Farm. State Farm proceeded to schedule nine separate IMEs for Darling, which it argued was necessary because Darling received treatment from various specialists. Darling filed a motion for a protective order, requesting that the trial court limit State Farm to two or three IMEs, which the trial court granted. State Farm sought leave to appeal the trial court’s order, which the Court of Appeals then vacated in its own order, explaining that State Farm was entitled to have Darling submit to IMEs performed by physicians who specialized in the same area of medicine as her treating physicians. On remand, State Farm rescheduled six IMEs, four of which Darling failed to attend, including a psychiatry IME the trial court specifically compelled her to attend. State Farm then filed a motion to dismiss Darling’s lawsuit based on her failure to comply with the directives of both the Court of Appeals and the trial court, but the trial court denied the motion, stating only, ‘plaintiff has complied with extensive discovery.’
The Court of Appeals vacated the trial court’s order denying State Farm’s motion to dismiss, noting that, before ruling on a motion to dismiss a case for discovery violations, a trial court must consider, on the record, the factors set forth in Vicencio v Ramirez, 211 Mich App 501 (1995). In this case, because “Darling failed to comply with [the Court of Appeals’] and the trial court’s directives by refusing to attend certain IMEs,” the trial court was required to consider the Vicencio factors, and in failing to do so, it “necessarily abused its discretion.” Thus, the Court of Appeals remanded to the trial court to conduct a Vicencio analysis and determine the appropriate remedy.
“On remand, State Farm scheduled the remaining six IMEs that were in dispute at the time this Court’s order was entered. Darling failed to appear for IMEs scheduled with four specialists. And after the trial court specifically directed Darling to participate in an IME with a psychiatrist, Darling still did not attend. Currently, it appears that two IMEs remain outstanding: one with a psychiatrist and another with a neuropsychologist. The record does not reflect that Darling ever filed a motion attempting to show good cause for placing reasonable restrictions on any IMEs, as this Court explained that she could do in its order. In sum, Darling failed to comply with this Court’s, and the trial court’s, directives by refusing to attend certain IMEs.
The trial court, however, denied State Farm’s motion to dismiss because Darling ‘complied with extensive discovery.’ State Farm argues that the trial court abused its discretion by doing so because dismissal with prejudice was the only principled sanction for Darling’s willful noncompliance with court orders. When deciding whether to dismiss a case for a discovery violation, the trial court should consider the following nonexhaustive factors:
(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. [Vicencio v Ramirez, 211 Mich App 501, 507; 536 NW2d 280 (1995).]
And ‘[d]ismissal is a drastic step that should be taken cautiously.’ Id. at 506. Here, the trial court gave virtually no analysis justifying its order denying State Farm’s motion to dismiss. The trial court certainly did not ‘carefully evaluate all available options on the record’ or explain why the Vicencio factors did not support the requested sanctions. See id. at 506-507. By failing to employ the proper legal analysis, the trial court necessarily abused its discretion. See Pirgu, 499 Mich at 274. Accordingly, we vacate the trial court’s order denying State Farm’s motion to dismiss.
The remaining question, however, is what remedy to order. State Farm urges us to grant the relief denied by the trial court—dismissing Darling’s case with prejudice and ordering her to reimburse State Farm’s IME no-show fees—while Darling argues that dismissal is inappropriate. But it is ordinarily for the trial court, and not this Court, to determine what sanctions are appropriate. See Vicencio, 211 Mich App at 506-507. At this juncture, we believe that the trial court should have the first opportunity to decide what type of sanction is appropriate under the proper legal standard. To the extent that the trial court’s denial of State Farm’s motion to dismiss reflects the court’s belief that no sanction is appropriate, that conclusion would be an abuse of discretion. Given this Court’s order allowing State Farm to schedule the disputed IMEs, the trial court’s order compelling attendance at an IME with a psychiatrist, and the mandatory nature of IMEs under MCL 500.3151, see Roberts, 275 Mich App at 68, some sanction is appropriate for Darling’s failure to attend multiple IMEs. But choosing the sanction is a task we decline in the first instance.”
