Sheila Green v. Esurance Property and Casualty Insurance Company ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SHEILA GREEN, UNPUBLISHED
November 12, 2020
Plaintiff-Appellant,
v No. 349235
Wayne Circuit Court
ESURANCE PROPERTY and CASUALTY LC No. 18-006643-NI
INSURANCE COMPANY,
Defendant-Appellee.
Before: BOONSTRA, P.J., and CAVANAGH and BORRELLO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion to dismiss plaintiff’s case
as a sanction for violation of the court’s discovery order and other discovery violations. We affirm.
On June 13, 2018, plaintiff filed her first-party no-fault insurance case against defendant
claiming that she was entitled to personal injury protection (PIP) benefits for injuries she suffered
on March 12, 2016 in a motor vehicle accident, which defendant refused to pay. On August 10,
2018, defendant served written discovery requests on plaintiff’s counsel, including interrogatories
and a request for production of documents. When plaintiff’s responses were not timely received,
defendant filed a motion to compel those responses. Plaintiff’s counsel did not appear at the
hearing and the motion was granted. An order was entered in that regard on October 10, 2018.
While plaintiff’s responses were due within 14 days of the entry of the court’s order, plaintiff did
not submit her responses until 23 days later, on November 2, 2018. Defendant also had difficulty
securing plaintiff’s appearance for a deposition. Plaintiff’s deposition was scheduled three
different times but she failed to appear, prompting defendant to file another motion to compel on
December 11, 2018.1 Plaintiff’s counsel did not appear at the hearing and the motion was granted
1
The first cancellation occurred on the day of the scheduled deposition. The second cancellation
occurred on the Friday before a Monday deposition, and there was no third cancellation—plaintiff
and her counsel simply failed to appear at the scheduled deposition where defense counsel and a
court reporter were waiting.
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which included a sanction of $500 in costs and the directive that plaintiff appear for a deposition
within 14 days. An order was entered in that regard on January 7, 2019.
Thereafter, defendant noticed the deposition of plaintiff as well as her purported service
providers for January 11, 2019. While plaintiff appeared for her deposition, her service providers
did not appear. Defendant attempted to reschedule the depositions of plaintiff’s five purported
service providers, but plaintiff’s counsel did not respond to the requests although he had agreed to
provide their contact information at plaintiff’s deposition. Because of the outstanding discovery,
defendant filed a motion to adjourn mediation and extend discovery. Defense counsel appeared at
the scheduled hearing date of February 1, 2019, and explained to the court that additional discovery
was required and the court granted defendant’s motion. Plaintiff’s counsel did not appear at that
hearing.
On February 22, 2019, defendant filed a motion to dismiss for violation of discovery or, in
the alternative, to compel the discovery depositions of plaintiff’s service providers. Defendant
argued that despite exhaustive efforts to obtain deposition dates for plaintiff’s service providers,
defendant had been unable to obtain such dates from plaintiff’s counsel. Several exhibits,
including emails to plaintiff’s counsel, were attached to the motion. Defendant argued that
plaintiff’s blatant and continuous refusal to participate in the discovery process from the start of
this case had caused substantial prejudice to defendant and should result in the dismissal of her
action under MCR 2.313.
At the March 8, 2019 hearing on defendant’s motion to dismiss, plaintiff’s counsel
responded: “She whined about a lot of stuff but my understanding and what I responded to is a
motion to Compel Deposition of Care Providers, and that’s a real simple response. She got a
responsibility if she wants depositions for care providers, she’s gotta serve a subpoena on them,
and until she does that this Court doesn’t have jurisdiction over them.” Plaintiff’s counsel further
argued: “So all this whining and complaining and all this other stuff she’s been talking about,
doesn’t amount to anything but a waste of the Court’s time.” Defense counsel responded that,
because plaintiff’s counsel did not respond to any of her requests for the addresses of these care
providers, she could not send them subpoenas to appear for depositions. Defense counsel further
argued: “It’s like pulling teeth in this case for discovery and that’s not fair for my client. My client
has incurred so much cost from my filing of motions and appearing in court and that is not
acceptable or fair to them.” Therefore, defense counsel requested that the court dismiss the action
with prejudice and sanction plaintiff. The trial court noted that, while it was true defense counsel
could subpoena the care providers it was also true that plaintiff’s counsel could cooperate.
Plaintiff’s counsel responded: “I mean if she, if she’s nice about it I’ll be happy to do that.”
Plaintiff’s counsel continued that he was “not dealing with all this ranting and raving.” The trial
court denied defendant’s motion, holding that defendant would have to subpoena the care
providers. Plaintiff’s counsel noted that all defense counsel had to do was send him interrogatories
asking for the names and addresses of the care providers. Then he would have 21 days to provide
the information. Defense counsel then reminded the court that all previous discovery requests
have required an order from the court to get plaintiff’s counsel to respond. After further discussion,
the court ordered plaintiff’s counsel to provide the contact information for all of plaintiff’s care
providers within 21 days. On March 11, 2019, an order was entered requiring that plaintiff provide
the contact information for all alleged care providers, including the names, addresses, and
telephone numbers, to defendant within 21 days.
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Plaintiff did not provide the contact information for her care providers as directed by the
trial court and in violation of the court’s order. Therefore, on April 2, 2019 defendant filed a
motion to dismiss plaintiff’s case for violation of the court’s order and for a history of discovery
violations. The next day, plaintiff’s counsel forwarded to defense counsel by email some of the
ordered contact information but it was untimely and incomplete, particularly with regard to one of
the alleged care providers. On April 9, 2019, defendant filed another motion to adjourn mediation
and extend discovery because of the outstanding discovery. On April 10, 2019, plaintiff’s counsel
filed an answer to defendant’s motion to dismiss asserting that the motion was moot because the
information had been provided. On April 11, 2019, defendant filed a reply to plaintiff’s answer,
arguing that the contact information provided by plaintiff with regard to one of her alleged care
providers was incomplete and inaccurate. Because of the misinformation, defendant was unable
to subpoena the care provider for a deposition. And, defendant argued, attempts to contact
plaintiff’s counsel for the correct contact information had—unsurprisingly—been unsuccessful.
Therefore, defendant did not withdraw its motion to dismiss this matter for violation of the court’s
order and for failure to provide discovery.
The hearing on defendant’s motion proceeded on April 17, 2019. Plaintiff’s counsel did
not appear for the hearing. The court noted plaintiff’s counsel’s absence despite proper notice by
defendant, as well as the court, and granted defendant’s motion—dismissing plaintiff’s case with
prejudice.2 Defense counsel requested additional monetary sanctions, and notified the court that
plaintiff’s counsel still had not paid the previously ordered sanction of $500. The court granted an
additional $500 in sanctions, for a total of $1,000 to be paid within seven days. The order was
entered on the same date as the hearing, April 17, 2019.
On April 18, 2019, plaintiff filed a motion under MCR 2.612(F) for relief from the order
dismissing the case. Plaintiff argued that her counsel mistakenly believed the motion was going
to be heard on April 19, 2019; thus, it was an inadvertent mistake and the sanction of dismissal
was too harsh. Plaintiff did not address the underlying discovery violations or the failure to abide
by the court’s March 11, 2019 discovery order.
Defendant responded to plaintiff’s motion, arguing that the dismissal order was a proper
sanction considering the numerous and flagrant discovery violations that resulted in defendant
having to file several motions for the trial court’s assistance in completing basic discovery. And
because plaintiff’s counsel did not appear or was tardy for most of the hearings, defense counsel
had to wait hours before the case was called by the court for those hearings.3 Defendant also noted
that, to date, plaintiff had still not paid the ordered sanctions in the amount of $1,000. Defendant
2
The matter was noticed for a 10:00 a.m. hearing and it was after 12:00 p.m. when the court
decided defendant’s motion.
3
For example, for the January 4, 2019 hearing, defense counsel waited about an hour and a half
before the case was called by the court after plaintiff’s counsel failed to appear; for the March 8,
2019 hearing, defense counsel waited over three hours before plaintiff’s counsel appeared for the
scheduled motion hearing; and on April 17, 2019, defense counsel waited over two hours before
the case was called after plaintiff’s counsel failed to appear.
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recounted plaintiff’s and her counsel’s pattern of inexcusable delay and avoidance of discovery,
and requested the trial court to affirm its dismissal order under MCR 2.313(B)(2)(c).
The hearing on plaintiff’s motion for relief from the dismissal order was held on May 17,
2019, and plaintiff’s counsel of record, Michael Fortner, did not appear. Another attorney
appeared on behalf of plaintiff but he provided no explanation for the discovery violations. The
trial court took the matter under advisement and issued a written order later that day denying
plaintiff’s motion. The court detailed the history of plaintiff’s discovery failures and, while it was
inclined to accept plaintiff’s counsel’s excuse for missing the hearing on defendant’s motion to
dismiss, the court noted that counsel failed to offer any explanation for the prior discovery
violations. And, the court noted, plaintiff’s counsel violated the court’s most recent discovery
order by failing to provide the complete contact information for plaintiff’s care providers as
ordered. The court concluded that, “while the court is willing to disregard Plaintiff’s counsel’s
failure to attend the hearing, the Court cannot disregard the merits of the motion to dismiss, i.e.,
Plaintiff’s repeated failure to provide discovery in this case, nor can the Court disregard Plaintiff’s
failure to account for this conduct.” Thus, there was no basis for granting plaintiff relief from the
order of dismissal and plaintiff’s motion was denied. This appeal followed.
Plaintiff argues that the trial court’s March 11, 2019 order requiring plaintiff to provide
discovery within 21 days should be vacated because it was entered in contravention of the court
rules. We disagree.
On June 13, 2018, plaintiff filed her first-party no-fault insurance case against defendant
claiming that she was entitled to PIP benefits, including for replacement services and attendant
care provided by her service providers. On September 6, 2018, shortly after defendant was served
the complaint and filed an appearance, the trial court issued its Scheduling Order detailing the
schedule of events for these proceedings. That Scheduling Order also contained provisions
specific to no-fault cases, stating in relevant part:
IT IS HEREBY ORDERED that in all cases in which the Plaintiff is asserting
a first-party claim for benefits under the Michigan No-Fault Act, MCL
500.3101, et seq., the following shall apply:
* * *
2. Within 28 days of entry of the first Scheduling Order, the Plaintiff shall identify
all known service providers (medical, household, and/or attendant care) and the
Plaintiff’s employer(s) by name, address, and phone number. The Plaintiff shall
immediately supplement as additional providers become known.
Despite the trial court’s specific order mandating that plaintiff identify all service providers by
name, address, and phone number within 28 days of the entry of that Scheduling Order, plaintiff’s
counsel refused to do so. On January 11, 2019, defendant noticed the depositions of plaintiff and
her service providers but only plaintiff appeared. During her testimony, plaintiff identified by
name some of her alleged service providers and apparently, following the deposition, plaintiff’s
counsel agreed to provide their contact information. He failed to do so. Because plaintiff failed
to abide by the trial court’s Scheduling Order by identifying and providing the contact information
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for all of plaintiff’s service providers, and then refused to honor his agreement to do so following
plaintiff’s deposition, defendant was again forced to seek the trial court’s assistance in obtaining
this mandated discovery information. And during the hearing on the matter, plaintiff’s counsel
argued that he did not have to provide the contact information for plaintiff’s service providers—
although plaintiff was seeking PIP benefits for the services allegedly provided to her by these same
persons. Plaintiff’s counsel only agreed to do so if defense counsel was “nice about it.” The trial
court, despite its Scheduling Order directive, gave plaintiff another 21 days to provide the contact
information for plaintiff’s service providers. Again, plaintiff’s counsel failed to abide by the trial
court’s order. And when he finally did provide some contact information, it was inaccurate and
incomplete—necessitating yet another motion to be filed by defendant for this basic discovery
information that had been ordered by the trial court on September 6, 2018, as well as six months
later on March 11, 2019.
Now on appeal plaintiff argues that the trial court “did not have the legal authority to issue
the March 11, 2019 Order.” In other words, plaintiff is arguing that the trial court did not have the
legal authority to enforce its own September 6, 2018 Scheduling Order which mandated the
disclosure of the contact information for plaintiff’s service providers in this first-party no-fault
case, and further, that the trial court did not have the legal authority to grant defendant’s request
that plaintiff be compelled to provide that contact information months later. This argument is
without merit. Clearly the trial court had inherent authority to enforce its own orders, including
its Scheduling Order directives. Further, at the hearing that culminated in the March 11, 2019
order, plaintiff’s counsel agreed to provide the contact information for plaintiff’s service providers
but requested an additional 21 days to provide that information. Because of plaintiff’s counsel’s
dilatory conduct throughout these proceedings, clearly the trial court could not simply rely on
counsel’s promise to do so; thus, an order was entered consistent with plaintiff’s counsel’s
agreement to provide the contact information within 21 days. Accordingly, this argument is
without merit.
Next, plaintiff argues that the trial court abused its discretion by dismissing this case as a
discovery sanction. We disagree.
A trial court’s imposition of discovery sanctions is reviewed for an abuse of discretion.
Traxler v Ford Motor Co, 227 Mich. App. 276, 286; 576 NW2d 398 (1998). An abuse of discretion
occurs when the decision is outside the range of principled outcomes. Maldonado v Ford Motor
Co, 476 Mich. 372, 388; 719 NW2d 809 (2006). We review de novo the interpretation and
application of a court rule like MCR 2.313 as a question of law. Johnson Family Ltd Partnership
v White Pine Wireless, LLC, 281 Mich. App. 364, 387; 761 NW2d 353 (2008). Factual findings
underlying the trial court’s decision are reviewed for clear error. Id. “A finding is clearly
erroneous when this Court is left with a definite and firm conviction that a mistake has been made.”
Id.
MCR 2.313(B)(2)(c) authorizes a trial court to enter an order dismissing a proceeding
against a party who failed to obey an order to provide or permit discovery.4 See also Thorne v
4
We refer to the version of MCR 2.313 in effect at the time of these lower court proceedings but
this court rule was amended effective January 1, 2020.
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Bell, 206 Mich. App. 625, 632; 522 NW2d 711 (1994). And as plaintiff admits, MCR 2.504(B)(1)
also grants the trial court the discretion to enter an order of dismissal if a party fails to comply with
the court rules or a court order. But, plaintiff argues, before dismissing her action the trial court
was required to carefully consider the circumstances of the case to determine whether the drastic
sanction of dismissal of the case was just and proper. We agree. See Richardson v Ryder Truck
Rental, Inc, 213 Mich. App. 447, 451; 540 NW2d 696 (1995). Severe sanctions are generally proper
“only when there has been a flagrant and wanton refusal to facilitate discovery and not when failure
to comply with a discovery request is accidental or involuntary.” Traxler, 227 Mich. App. at 286
(quotation marks and citation omitted). As plaintiff further notes, this Court has set forth some of
the factors that may be considered by the trial court before imposing the sanction of dismissal,
factors like: “(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), citing
Dean v Tucker, 182 Mich. App. 27, 32-33; 451 NW2d 571 (1990).
Plaintiff argues that the trial court failed to address any of these factors on the record before
reaching its decision to dismiss plaintiff’s case or even at the hearing on plaintiff’s motion for
relief from the dismissal order. However, neither plaintiff nor her counsel of record were present
at the hearing when the trial court granted defendant’s motion to dismiss plaintiff’s case for
violation of the court’s order and for a history of discovery abuses. In fact, plaintiff’s counsel of
record rarely appeared at any of the court hearings held in this matter—not even at the hearing on
plaintiff’s motion for relief from the order dismissing the case. And in plaintiff’s motion for relief
from the dismissal order, plaintiff merely stated that the sanction of dismissal was too harsh. The
motion did not cite to any legal authority or state any of the factors that the court should have
considered before dismissing the case. In that motion, plaintiff made no effort to analyze the
applicable factors that might have persuaded the court that dismissal was too harsh. Likewise, as
the trial court noted, plaintiff’s motion for relief from the dismissal order did not even address
plaintiff’s extensive history of discovery violations or attempt to offer any rationale or explanation
for this unacceptable conduct. In light of the fact that the trial court presided over the entirety of
this case, including the several motions related to plaintiff’s discovery violations and the motion
to adjourn scheduling dates because of plaintiff’s counsel’s dilatory conduct, it is obvious that the
court was well aware of the relevant circumstances when the court granted defendant’s motion to
dismiss plaintiff’s case because of “Plaintiff’s repeated discovery abuses.”
Moreover, it appears that the trial court did consider several relevant factors before
imposing the sanction of dismissal. At the May 17, 2019 hearing on plaintiff’s motion for relief
from the dismissal order, the trial court noted that plaintiff’s counsel had previously been
sanctioned $500 for discovery abuses and his conduct did not change. That is, the court already
tried a less severe sanction to no avail. The trial court also noted that this case was filed in 2018,
meaning that almost a year later basic discovery had still not been completed because of plaintiff’s
discovery violations. Defense counsel also reminded the trial court of the prejudice suffered by
her client because of the discovery abuses. In particular, this was a three-year old accident and
only very minimal discovery had been allowed by plaintiff’s counsel, including the incomplete
deposition testimony of the plaintiff herself. Further, defendant had incurred substantial
unnecessary expense because of defense counsel having to file numerous motions and then attend
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numerous hearings on those motions—which took hours because plaintiff’s counsel did not appear
or was late. Before taking this matter under advisement, the trial court informed the attorney who
appeared on behalf of plaintiff for her motion for relief from the dismissal order that he needed “to
get more acquainted with the circumstances of this case.” And in its opinion and order denying
plaintiff’s motion, the court referred to plaintiff’s history of “repeated discovery abuses,” as well
as the fact that plaintiff “violated this court’s most recent discovery order by failing to provide the
information within the deadline imposed in the order, and by failing to provide complete
information, i.e., the names and addresses of all of Plaintiff’s providers.” Further, the court noted,
plaintiff did not even attempt to explain this conduct. In summary, it is clear from the record that
the trial court considered several relevant factors pertaining to the circumstances of this case before
deciding to impose the sanction of dismissal. And that decision did not constitute an abuse of
discretion. See Maldonado, 476 Mich. at 388.
Affirmed.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
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