Michigan Court of Appeals; Docket #360370; Unpublished
Judges Kelly, Swartzle, and Feeney; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Nonattendance As a Basis for PIP Benefit Cutoff [§3151]
TOPICAL INDEXING:
Discovery Sanctions in First-Party Cases
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Arthur Willis Jr.’s action for no-fault PIP benefits against Farmers Insurance Exchange (“Farmer”) as a sanction against Willis Jr. For failing to attend a defense medical examinations (“DME”). The Court of Appeals held that the factors set forth in Vicencio v Ramirez, 211 Mich App 501 (1995)—factors for determining whether dismissal is an appropriate sanction in a no-fault case—did not weigh in favor of dismissal in this case.
In September of 2020, Arthur Willis Jr. was injured in a motor vehicle crash. He applied for PIP benefits after the crash with the Michigan Automobile Insurance Placement Facility (“MAIPF”), who assigned his claim to Farmers. As part of its investigation into Willis Jr.’s claim, Farmers ordered that he attend a DME—originally scheduled for February 24, 2021—but Willis Jr. did not attend due to a miscommunication related to transportation. Farmers rescheduled for March 19, 2021, but mailed the notice of rescheduling to Willis Jr.’s former lawyer, and thus Willis Jr. again did not appear. Farmers then rescheduled for May 11, 2021, but Willis Jr. did not attend because he suffered a stroke before the appointment. By that date, Willis Jr. had filed suit against Farmers, and after that missed DME, Farmers moved for summary disposition, arguing that Willis Jr.’s claim should be dismissed pursuant to MCL 500.3153. Before the hearing on the motion, Farmers rescheduled the DME a fourth time—for September 27, 2021—but Willis Jr. did not attend due to his becoming confused when his physical therapist called to reschedule a physical therapy appointment, which he mistook for the DME. At the hearing then on Famers’ motion, the trial court determined that dismissal of Willis Jr.’s claim altogether was an appropriate sanction for his failing to attend the DME.
The Court of Appeals reversed the trial court’s summary disposition order, holding that the factors set forth in Vicencio did not weigh in favor of dismissal. The Vicencio 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.”
The Court determined that the first factor did not weigh in favor of rescission because Willis Jr. had a valid excuse every time he missed the DME. The Court determined the second factor did not weight in favor of rescission because Willis Jr. was not compelled to attend the DME by court order. The Court determined the third factor did not weigh in favor of rescission because there was no evidence to suggest that Farmers was actually prejudiced by the fact that the DME had not yet occurred. The Court held that factor four did not weigh in favor of rescission because Willis Jr. did not have a history of deliberate delay, and had, in fact, complied with Farmers’ other discovery requests. The Court held that factor five did not weigh in favor of rescission because, again, there was no court order pertaining to the DME. The Court held that factor six did not weigh in favor of rescission because Willis Jr.’s lawyer reached out to Farmers to acknowledge the missed DMEs and reschedule. Lastly, the Court held that factor seven did not weigh in favor of rescission because a lesser sanction—to wit, an order compelling Willis Jr. to appear at the DME—would better serve the interests of justice.
“In sum, the Vicencio factors weigh against dismissal. Id. The trial court abused its discretion in finding dismissal was appropriate. Additionally, the court erred by not fully considering whether lesser sanctions would serve the interests of justice. The record reflects that the court determined that the appropriate sanction was dismissal. In doing so, the court did not first address available lesser sanctions or reasons why they would be insufficient. Indeed, Willis was not subject to an order to compel and nothing in the record indicated that he would not comply with a court order. As a lesser sanction, therefore, the court could have ordered him to appear at a DME. Additionally, as recognized by the trial court after it ordered dismissal, another potential sanction would have included to require Willis to pay the no-show fees associated with the missed DMEs. Given that the court immediately imposed dismissal as a sanction, we conclude that the court abused its discretion by failing to consider ‘alternative sanctions on the record.’ Gueye, ___ Mich App at ___; slip op at 7. On remand, the trial court shall consider alternative sanctions on the record and shall impose such lesser sanction or sanctions as are just. See MCL 500.3153.”
