More often than you might imagine, a Motion for Dismissal may be appropriate, especially in situations where the opposing party fails to provide discovery, causes unnecessarily delays, fails to appear at court ordered hearings and otherwise fails or refuses to comply with court Orders (including Scheduling Orders).

In such cases, there are a number of factors which the court must consider (Vicencio v Ramirez, 211 Mich App 501, 507; 536 NW2d 280 (1995)).

“[D]ismissal is a drastic step that should be taken cautiously.”*** Before imposing dismissal as a sanction, the trial court must carefully evaluate all available options on the record and conclude that dismissal is just and proper.” VandenBerg v VandenBerg, 231 Mich App 497, 502; 586 NW2d 570 (1998); Vicencio, 211 Mich App at 506.

In making this evaluation, relevant factors the trial court should consider include but are not limited to (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.

Case: Cecile v. Wang
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Sawyer, Cavanagh, and Fort Hood

In an automobile negligence action such as this, “damages shall not be assessed in favor of a party who is more than 50% at fault.” MCL 500.3135(2)(b). The relative negligence of the parties is ordinarily a question for the trier of fact. However, if no reasonable juror could find that the defendant was more at fault than the plaintiff in an accident, then a plaintiff’s comparative negligence may be considered at the summary disposition stage.

In this case, no reasonable trier of fact could conclude that defendant was negligent and that she was more at fault for the accident than plaintiff.3 The accident occurred on Michigan Avenue, a busy five-lane road, during evening rush hour traffic on December 18, 2014. Plaintiff, who was employed by two car dealerships across the street from each other on Michigan Avenue, was attempting to cross the road from one dealership to the other. The traffic was heavily congested and moving at only 10 to 15 miles an hour. Plaintiff did not use the crosswalk that was available at the nearby intersection with Oakwood Boulevard. He was standing in the center turn lane when he was struck by defendant’s vehicle. The only independent witness, Joanne Hofner, testified that it was dark, rainy, and sleety. Hofner, who believes she was two vehicles ahead of defendant’s vehicle in the inner eastbound lane closest to the center lane, did not see plaintiff until she passed him. Hofner felt distraught and scared when she passed plaintiff because it was so dark and rainy and she wondered what he was doing standing in the middle of the turn lane. After she passed plaintiff, Hofner saw headlights that she assumed were from defendant’s vehicle pull into the center lane and then heard but did not see the accident. Hofner did not think there was anything defendant could have done to avoid the accident.

Plaintiff testified that he had no memory of the accident itself. He remembered approaching the street and that the traffic was bumper to bumper, but that was the last thing he could recall. Plaintiff indicated in his deposition that he did not recall the weather conditions or whether it was light or dark out. Plaintiff admitted that he regularly crossed the road at this location and that he never used the crosswalk when going back and forth between the dealerships. In an affidavit appended to his response to the summary disposition motion, plaintiff averred that the location where he crossed the street was well lighted by the car dealerships and the headlights of the vehicles on the road.

It is clear from this evidence that no reasonable juror could find that defendant was more at fault for the accident than plaintiff. Plaintiff chose not to use the nearby crosswalk, which is relevant to the issue of comparative negligence. He instead crossed away from the crosswalk on a five-lane road that was by his own admission congested with rush-hour traffic. Hofner’s testimony established that it was dark, rainy, and sleety. Hofner did not see plaintiff in the center lane until he was right next to her vehicle, which startled her, and she indicated that there was nothing defendant could have done to avoid striking plaintiff. Summary Disposition in favor of Defendant was granted.

Case: Estate of Kenneth Gene Owens v. Mantha Mgmt. Group, Inc.
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Murphy and Jansen; Concurrence – Ronayne Krause

Establishing causation entails proving two separate elements: (1) cause in fact, and (2) legal cause, also known as “proximate cause.” .  The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. A plaintiff must adequately establish cause in fact in order for legal cause or “proximate cause” to become a relevant issue. Circumstantial evidence and reasonable inferences arising from the evidence can be utilized to establish causation. But it is not sufficient to proffer a causation theory that, while factually supported, is, at best, just as possible as another theory.  A plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred. Litigants do not have any right to submit an evidentiary record to the jury that would allow the jury to do nothing more than guess.

Case: Shultz v. Pioneer State Mut. Ins. Co.
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Beckering, M.J. Kelly, and O’Brien

Generally whether or not an individual committed fraud is a question of fact for the jury, see Shelton v Auto-Owners, 318 Mich App 648, 658-660; 899 NW2d 744 (2017). However, summary disposition is appropriate if there is no genuine issue of material fact regarding an insured’s fraud, Bahri, 308 Mich App at 426. To void a policy because the insured has wilfully misrepresented a material fact, an insurer must show that (1) the misrepresentation was material, (2) that it was false, (3) that the insured knew that it was false at the time it was made or that it was made recklessly, without any knowledge of its truth, and (4) that the insured made the material misrepresentation with the intention that the insurer would act upon it. A statement is material if it is reasonably relevant to the insurer’s investigation of a claim.

Case: Vandercook v. Auto-Owners Ins. Co.
Court: Michigan Court of Appeals ( Published-After-Release Opinion )
Judges: Per Curiam – Meter, Gadola, and Tukel

Plaintiff sued defendant for breach of a no-fault auto insurance policy issued by defendant to recover no-fault personal protection insurance benefits (PIP) for expenses, loss of wages, replacement services, and other benefits related to injuries sustained by plaintiff in an auto accident on December 23, 2014. Plaintiff also sought declaratory relief for determination of plaintiff’s rights to PIP benefits and defendant’s rights to reduction, set offs, or reimbursements of paid benefits. The case was submitted for case evaluation. Plaintiff’s case evaluation summary listed disputed benefits and stated that defendant owed approximately $93,000 for medical expenses and family-provided attendant care.

The case evaluation panel considered the case and unanimously awarded plaintiff $45,000. Plaintiff accepted the award but typed into the form that he accepted the award “as to benefits referenced in Plaintiff’s Case Evaluation Summary only. Not including wage loss.” Defendant also accepted the award which, because both parties had accepted, had the effect of settling the case for that amount. See MCR 2.403(M).

After notification of the parties’ mutual acceptance, defendant moved for clarification from the trial court as to whom the proper payees were for payment of the case evaluation award. Plaintiff responded by arguing that he had limited his case evaluation acceptance to the unpaid bills he had referred to in his case evaluation summary.

In this case, the parties agreed to submit the case to case evaluation. Neither party objected to case evaluation under MCR 2.403(C).3 Further, the trial court did not exempt any aspect of plaintiff’s action from case evaluation under MCR 2.403(A)(3). Therefore, the case evaluation panel had the entire case for its consideration and determination.

Upon both parties’ acceptance of case evaluation, MCR 2.403(M)(1) required the trial court to enter judgment and dismiss the entire action—not review plaintiff’s case evaluation summary and allow him to bifurcate his claims so that he could file another lawsuit for PIP benefits which had accrued before the date of the case evaluation hearing.