Michigan Court of Appeals; Docket #359647; Unpublished
Judges Hood, Swartzle, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Discovery Sanctions in First-Party Cases
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s order dismissing Plaintiff Juan Burns’s first-party action for no-fault PIP benefits against Defendant Farm Bureau Mutual Insurance Company of Michigan (“Farm Bureau”). The Court of Appeals held that the trial court did not abuse its discretion by dismissing Burns’s action as a sanction for failing to comply with multiple discovery orders.
Juan Burns was injured in a motor vehicle accident, after which he sought no-fault PIP benefits through the Michigan Automobile Insurance Placement Facility. His claim was assigned to Farm Bureau, but Burns alleged that Farm Bureau issued incomplete or insufficient payments of benefits to him. Burns filed suit against Farm Bureau but failed to timely file his initial disclosures, and failed to appear for three scheduled depositions. After Farm Bureau filed its motion, Burns filed his initial disclosures, but approximately one month later, Burns missed a fourth scheduled deposition, missed his first scheduled IME, and failed to respond to Farm Bureau’s discovery request. Farm Bureau moved for dismissal, but the trial court denied the request, instead ordering Burns to attend his deposition and IME. Burns appeared for the deposition but failed to attend the IME, after which he trial court renewed its order to Burns that he appear for his IME. Burns failed to show for the third rescheduled IME, however, and Farm Bureau renewed its motion to dismiss. The trial court granted Farm Bureau’s motion this time, finding that the most severe sanction of dismissal was warranted based on Burns’s actions.
The Court of Appeals affirmed the trial court’s order, holding that the trial court did not abuse its discretion in dismissing Burns’s action for repeated discovery violations. The Court noted that, before concluding that dismissal was an appropriate sanction, the trial court properly considered the seven factors for determining an appropriate sanction set forth in Gueye v State Farm Mut Auto Ins Co, ___ Mich App at ___ (2022). Those seven factors are as follows:
“(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. (quotation marks and citations omitted).]”
The Court noted that Burns failed to comply with multiple requests and even court orders, and that these failures were too numerous to be accidental. The Court found that, because Burns’s repeated failures were willful, they were also necessarily deliberate. The Court found that Farm Bureau was prejudiced by Burns’s failures, because of the time which expired since the accident while Burns delayed in cooperating with discovery, and because Farm Bureau incurred at least $1,800 in no-show costs. The Court noted that Burns failed to comply with other parts of its orders—specifically that which ordered him to pay the second no-show fee, which he never did. The Court noted that Burns had made no attempt to cure the discovery defect relating to his missed IME as of the date of dismissal. And, as to the last factor, the Court noted that, on multiple occasions, the trial court did opt for lesser sanctions, but they were unsuccessful in achieving Burns’s cooperation.
“Finally, the trial court had to consider whether a sanction less than dismissal would have better served the interests of justice. Gueye, ___ Mich App at ___; slip op at 9. The court did this in two ways. First, on several occasions, it implemented lesser sanctions before dismissal, and, therefore, necessarily considered alternative sanctions to dismissal. In response to Farm Bureau’s first motion to dismiss, the trial court, rather than dismissing the case, chose to compel the deposition, order Burns to appear for his IME, and order monetary sanctions against Burns for his delays. The court also denied Farm Bureau’s renewed motion to dismiss and again ordered Burns to appear for his IME and pay monetary sanctions. These actions demonstrate that the trial court considered and implemented lesser sanctions before dismissing the case. Second, the court held that because of Burns’s refusal to comply with court orders, it had no other choice but to dismiss the case. Accordingly, the trial court considered and implemented lesser, alternative sanctions and, at the final hearing, noted that lesser sanctions were no longer sufficient given Burns’s repeated noncompliance.
We, therefore, conclude that the trial court considered each of the relevant factors and provided clear reasoning for its decision to dismiss the case. Given Burns’s repeated failure to timely comply with discovery obligations, attend any of the three IMEs scheduled, or pay court- ordered sanctions, it cannot be said that the trial court’s decision to dismiss fell outside the range of principled outcomes. Overall, Burns has repeatedly failed to pursue his lawsuit, prejudicing Farm Bureau. Though Burns was warned that dismissal might result from his continued failure to comply with discovery obligations, he continued to violate court orders and other discovery obligations. The trial court stated it effectively had no other choice but to dismiss the case because Burns repeatedly refused to comply with lesser sanctions. Dismissal was a permissible and appropriate sanction.”