Dankha v. Wright
| Docket Number | 355066 |
| Decision Date | 16 December 2021 |
| Parties | FAIROOZ DANKHA, Plaintiff-Appellant, v. JAMES A. WRIGHT, DHEYAA AL-QASSAB, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and LM GENERAL INSURANCE COMPANY, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-014628-NI
Before: Cavanagh, P.J., and Servitto and M. J. Kelly, JJ.
Plaintiff appeals as of right an order granting summary disposition in favor of State Farm Mutual Automobile Insurance Company (State Farm), and dismissing her claims against State Farm LM General Insurance Company (Liberty Mutual), and Dheyaa Al-Qassab.[1] On appeal, plaintiff argues the trial court abused its discretion by dismissing her claims as a discovery sanction. She also argues the trial court erred by dismissing her claims against Liberty Mutual and Al-Qassab because they did not move for summary disposition independently of State Farm. Finding no error or abuse of discretion, we affirm.
This case arises out of a car accident that allegedly occurred in October of 2016. Plaintiff asserts she was riding as a passenger with Al-Qassab[2] as the driver. Al-Qassab slammed on his brakes, and James A. Wright—who was driving behind Al-Qassab—rear-ended their vehicle.
Simultaneously, the driver behind Wright rear-ended Wright. At the end of March of 2017, plaintiff sued State Farm for personal injury protection (PIP) benefits. Six months later the trial court dismissed plaintiff's claims without prejudice because plaintiff failed to appear for a deposition and failed to appear for an insurance medical examination (IME).
A little over two years later, on October 31, 2019, plaintiff again sued State Farm, and this time also sued Liberty Mutual and Al-Qassab. She renewed her claim for PIP benefits against State Farm and this time also brought a claim for uninsured and underinsured motorist (UM/UIM) benefits against State Farm. Plaintiff sued Liberty Mutual for UM/UIM benefits and Al-Qassab for third-party economic damages in excess of the no-fault threshold. The trial court issued a scheduling order setting discovery cutoff at June 11, 2020. The scheduling order stated that, within 28 days of its entry, plaintiff was required to identify her service providers and employer, as well as provide medical record authorizations to defendants.
State Farm answered plaintiff's complaint on January 14, 2020. But plaintiff did not serve Al-Qassab with her initial disclosures until April 1, 2020, Liberty Mutual until May 4, 2020, and State Farm until June 2, 2020.[3] In her initial disclosures to defendants, plaintiff provided little to no information about her healthcare providers or employer, or about any medical bills or balances for which she sought reimbursement. She also provided no signed medical record authorizations.
Plaintiff's deposition was noticed for April 2, 2020. According to plaintiff's counsel, this deposition did not occur because of technical difficulties. Plaintiff's deposition was rescheduled for June 18, 2020, but it does not appear that the deposition took place. According to State Farm's counsel, plaintiff never appeared for an IME or an examination under oath (EUO) and failed to file a police report after the accident. In the record, there is no deposition transcript, no IME report, and no evidence that plaintiff appeared for an EUO.
Plaintiff failed to respond to most of defendants' discovery requests. When plaintiff did respond, she either provided perfunctory answers or else untimely served responses containing little if any appreciable information about her alleged injuries or monetary damages. As to State Farm, she responded to its request for admissions but denied everything without elaboration. Plaintiff also responded to State Farm's request for production and its first set of interrogatories at the end of March of 2020, 71 days after State Farm had served its request. The substance of plaintiff's responses to these requests is not in the record, but there is nothing to suggest plaintiff provided State Farm with any of the documents it requested or provided substantial answers to its interrogatories. Plaintiff failed to respond to State Farm's second set of interrogatories. Liberty Mutual served plaintiff with a request for admissions, a request for production, two requests for medical authorizations, and two sets of interrogatories. Plaintiff responded only to Liberty Mutual's request for admissions, denying everything without elaboration. Al-Qassab served plaintiff with a request for production and interrogatories, but plaintiff responded to neither.
When plaintiff failed to respond, each defendant moved to compel. At the same time, plaintiff objected to defendants' interrogatories, arguing that the trial court should strike them because defendants had each included more than 20 interrogatories in contravention of MCR 2.309(A)(2). The trial court did not hold a hearing on defendants' motions or plaintiff's objection and issued no order.
A month before the discovery cutoff date, State Farm moved for summary disposition seeking the dismissal of plaintiff's claims as unsupported by any evidence. First, citing MCR 2.313(B)(2), State Farm argued that the trial court should dismiss plaintiff's claims as a discovery sanction. Second, State Farm argued that plaintiff's UM/UIM claim should be dismissed because plaintiff failed to appear for an IME. Third, State Farm argued the one-year-back rule, MCL 500.3145(1), would prevent plaintiff from recovering any damages because plaintiff's last medical treatment occurred in November of 2017. Though Al-Qassab did not file his own motion for summary disposition, Al-Qassab filed a concurrence with State Farm's motion and noted that plaintiff did not respond to discovery requests and failed to provide signed authorizations for the release of medical records. Liberty Mutual did not file a motion or concurrence.
In response to State Farm's motion for summary disposition, plaintiff argued that "discovery [was] still on-going" and, therefore, State Farm's motion for summary disposition was premature. She also noted that she provided an initial disclosure. Further, plaintiff alleged that she executed medical authorizations and answered discovery requests. But as State Farm argued in its reply brief, plaintiff provided no evidence to corroborate her assertions. And as the non-moving party, plaintiff was required to oppose the motion for summary disposition with evidence but she attached no exhibits or documentation to her response. Accordingly, State Farm argued, its motion must be granted and plaintiff's claims dismissed.
On July 30, 2020, the trial court issued a written opinion dismissing all of plaintiff's claims with prejudice. The trial court noted: "Despite four years of litigation across two lawsuits, Plaintiff has not provided a single document, a medical record, or a bill to show this Court that there is anything at issue in this case or that any genuine issue of material fact exists for a trier of fact." The trial court noted that plaintiff repeatedly failed to provide any discovery to defendants and, given plaintiff's "serial and repeated violations," it was left with no option but to dismiss plaintiff's claims with prejudice. The court noted that plaintiff's response to defendant's motion—that discovery was on-going—was insufficient to defeat the motion, particularly when she had done nothing whatsoever in this case. Because plaintiff failed to provide any evidence, failed to attend an IME, and failed to file a police report, the trial court dismissed the case with prejudice.
About two weeks later, plaintiff filed a motion titled "Plaintiff's Motion For Relief From July 30, 2020 Order And To Reinstate Case Nunc Pro Tunc," asking the trial court to reinstate her claims against defendants—but only her "UM/UIM claims" and claims against Liberty Mutual and Al-Qassab. Plaintiff's counsel admitted that "there are no PIP claims." The trial court denied plaintiff's motion. This appeal followed.
We review de novo a trial court's ruling on a motion for summary disposition. Heaton v Benton Constr Co, 286 Mich.App. 528, 531; 780 N.W.2d 618 (2009). "Under MCR 2.116(C)(10), summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Piccione v Gillette, 327 Mich.App. 16, 19; 932 N.W.2d 197 (2019) (quotation marks and citation omitted).
In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. [Quinto v Cross & Peters Co, 451 Mich. 358, 362-363; 547 N.W.2d 314 (1996) (internal citations omitted).]
A trial court's decision to impose discovery sanctions is reviewed for an abuse of discretion. Elahham v Al-Jabban, 319 Mich.App. 112, 135; 899 N.W.2d 768 (2017). A trial court abuses its discretion when its decision is outside the range of principled outcomes. PCS4LESS LLC v Stockton, 291 Mich.App. 672, 676-677; 806 N.W.2d 353 (2011). The trial court's interpretation and application of court rules is reviewed de novo. Dep't of...
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