In this 2-1, unpublished, decision (Swartzle, dissenting), the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Benjamin Robinson’s action for No-Fault PIP benefits against Defendant Wolverine Mutual Insurance Company (“Wolverine”). After filing suit against Wolverine—the insurer of the vehicle Robinson was driving at the time of the subject accident—Robinson answered an interrogatory by stating that he had personal No-Fault insurance through AAA at the time of the accident. When Wolverine moved for summary disposition on the basis of Robinson’s answer and MCL 500.3114, Robinson filed an amended answer to the interrogatory and an affidavit claiming that his original answer was incorrect, and that he was not, in fact, insured through AAA at the time of the accident. The Court of Appeals held that Robinson’s amended answer and affidavit should have been considered by the trial court in ruling on Wolverine’s motion, and that they created a question of fact precluding summary disposition.
Benjamin Robinson was injured in a motor vehicle accident while driving vehicle owned by Ekhlas Mona, and insured by Wolverine. Almost one year after the accident, Robinson sued Wolverine for PIP benefits related to the accident, but in an answer to one of Wolverine’s interrogatories, stated that he was insured by AAA at the time of the accident. Wolverine proceeded to move for summary disposition on the issue of priority, in response to which Robinson filed an amended answer to the interrogatory, as well as an affidavit, in which he stated that he ‘did not own a policy with AAA Insurance Company’ on the date of the accident, and that he did not ‘reside with anyone who owned an automobile that [sic] for which AAA Insurance Company would apply to medical bills incurred’ from the accident. Despite the amendment and affidavit, the trial court ruled, as a matter of law, that Robinson did have insurance through AAA at the time of the accident, and granted Wolverine’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding that Robinson’s amended answer and affidavit should have been properly considered by the trial court, and that they created a question of fact which precluded summary disposition. MCR 2.202(E) requires that a party correct discovery responses at any time during a proceeding if it discovers that they are incorrect, and thus Robinson was complying with his duties under the Court Rules when he submitted the amended answer. Moreover, since Robinson was the nonmoving party, the trial court was required to take all evidence—including the amended answer—in the light most favorable to him.
“Under MCR 2.302(E)(1)(a)(i), a party that has responded to an interrogatory has a duty to supplement or correct a response ‘in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]’ Wolverine argues that the close of discovery is a deadline, after which such corrections should not be accepted by a court. But the court rule contains no such limitation. And although a court need not consider untimely evidence, Quinto v Cross & Peters Co, 451 Mich 358, 366 n 5; 547 NW2d 314 (1996), MCR 2.302(E) requires a party that discovers an error in an interrogatory response to correct the response at any time during the proceedings if it discovers that a response is incorrect or incomplete. Here, Robinson amended his interrogatory answers before the district court’s resolution of Wolverine’s motion for summary disposition. There is no evidence that Robinson delayed amending the answers after he discovered that they were incorrect. There is also no record of the court striking Robinson’s responses as untimely or striking them as a discovery sanction for failing to provide them before the close of discovery. [citations omitted] Instead, the district court stated that it considered Robinson’s late response. Had it done so, it would have had to find a genuine issue of material fact related to insurance coverage.”
The Court also held that the rule against using sworn testimony to contradict prior statements or create questions of fact does not apply to corrections of interrogatory responses, because that would render MCR 2.202(E) nugatory. And lastly, the Court held that Robinson’s original interrogatory response should not be binding on him because it appeared to the product of “inadvertence or imprecision rather than guile, gamesmanship, or an attempt to thwart a procedural rule.”
“Wolverine also cites several cases to support its contention that sworn statements that contradict prior testimony or conduct cannot create a factual dispute to avoid summary disposition. Wolverine’s reliance on these cases is misplaced for three reasons. First, each case involved contradictions of clear and unequivocal deposition testimony, not interrogatory responses. See, e.g., Casey v Auto Owners Ins Co, 273 Mich App 388; 729 NW2d 277 (2006); Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257; 503 NW2d 728 (1993). It is well-established that a party or witness cannot create a question of material fact by contradicting their own deposition testimony with an affidavit. See Dykes v William Beaumont Hosp, 246 Mich App 471, 479-482; 633 NW2d 440 (2001). See also Gamet v Jenks, 38 Mich App 719, 726; 197 NW2d 160 (1972) (‘If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’) (quotation marks and citation omitted).5 Wolverine has failed to identify authority that would allow us to apply the rule prohibiting statements that contradict deposition testimony to statements that contradict prior interrogatory answers.
Second, and relatedly, such an application would conflict with the requirement in MCR 2.302(E)(1)(a)(i) that a party must timely supplement or correct any discovery response it learns is incomplete or incorrect. Because each of the cases on which Wolverine relies involves contradictions with depositions, not interrogatory responses, none of them address the mandate contained in MCR 2.302(E)(1)(a)(i).
Third, when a party makes an assertion in a ‘clear, intelligent, and unequivocal’ manner, it is generally considered binding against the party unless they can explain a discrepancy or demonstrate a mistake. See Bakeman v Citizens Ins Co of the Midwest, ___ Mich App___, ___; ___ NW2d ___ (2022) (Docket No. 357195); slip op at 5 (holding that the trial court could not ignore plaintiff’s self-conflicting testimony made in a single deposition). Regarding self-conflicting testimony, this Court has been reluctant to apply a ‘bright line’ favoring either testimony that favors a witness or damages a witness. See id. at 5-6. Instead, ‘a party is ordinarily entitled to the benefit of testimony in support of that party, even when there are inconsistencies or contradictory statements in the testimony of [the] plaintiff or [their] witnesses . . . .’ Id. at 6 (quotation marks and citation omitted). The rule, which Wolverine cites, regarding conflicts between depositions and affidavits, ‘was designed to prevent parties from manufacturing factual questions for the purpose of surviving summary disposition.’ Id. Here, looking at the totality of Robinson’s statements, that does not appear to be the case. In his complaint, he asserted that he had auto insurance with Wolverine on the date of the accident. Then, in his response to Wolverine’s interrogatories he said he did not have insurance with Wolverine, but he had insurance with AAA. And, in his amended answer, Robinson indicated that, after ‘further investigation,’ he did not have a no-fault policy at the time of the accident. Here, Robinson’s conflicting and contradictory answers appear to be based on inadvertence or imprecision rather than guile, gamesmanship, or an attempt to thwart a procedural rule. See id. at 6. We also note that the discrepancy does not relate to the witness’s perception or memory of facts, but rather, the existence or nonexistence of an insurance policy, something that the Wolverine could establish separate from Robinson’s testimony. While Robinson’s answers may have provided a basis for a discovery sanction, the court did not impose one. Without such a sanction or other indication of guile or gamesmanship, the trial court should have considered the amended answer when ruling on the motion for summary disposition. Had it done so, it would have found a question of fact.
Judge Swartzle dissented, believing that Robinson should not be allowed to proceed with his action given his multiple changes in position.
“Three different bites at the apple, three different statements of ‘fact’ by plaintiff. (1) In his complaint, plaintiff alleged that defendant, Wolverine Mutual Insurance Company, insured his vehicle. (2) Then, in answering defendant’s interrogatory, plaintiff asserted that AAA Insurance Company insured his vehicle. (3) Then, in responding (late) to a motion for summary disposition, plaintiff asserted that, actually, AAA did not insure his vehicle. (4) The majority is now granting plaintiff a fourth bite at this lawsuit, an opportunity that I would decline.”