dissenting.
I must respectfully dissent because I cannot agree with the majority opinion’s conclusion that matters admitted by silence are, under these circumstances, necessarily conclusively established. Nor do I accept the conclusion of the dissenting opinion by Judge Lowenstein that the party seeking the benefit of such admissions must offer them into evidence.
As to the proposed requirement that such admissions must be offered, I hesitate to add this requirement to those procedures enumerated in Rule 59.01 in light of the long-standing rule that “[t]he effect of admissions made in response to a request is comparable to a legal admission made in the pleadings of a party, and it is not necessary that they be formally introduced in evidence at the trial.” Williams v. School Dist. of Springfield R-12, 447 S.W.2d 256, 268 (Mo.1969), quoting 27 C.J.S. Discovery § 106.
As to the majority opinion’s position, I agree that the 1970 revision of Fed.R.Civ.P. 36(b) (the equivalent of our Rule 59.01), expressly providing that an admission is conclusively established, is intended to enable a party securing an admission to depend on its binding effect. In other words, a party making an admission — whether by silence or express admission — is conclusively bound unless, as our rule provides, the court on motion permits withdrawal or amendment. The post-1970 case law indicates, however, that under certain limited circumstances, when equity demands, the court may permit a withdrawal without a motion by the party seeking relief from the conclusiveness of the failure to respond.
The leading case on point is Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188 (E.D.Mo.1980), rev’d in part on other grounds, 653 F.2d 1208 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981). There, plaintiffs requested admissions on February 28, 1978, to which defendant did not respond until March 9, 1979, over a year later. By the rules, defendant had admitted the facts contained in the request. The court chose to relieve defendant of this burden, however, because plaintiffs were fully aware that defendant actually denied the substance of the admission (in spite of its silence), because the admissions “go to the very heart of the claim” denied in defendant’s answer, and because defendant’s late response (forthcoming without benefit of a motion to withdraw admissions) was at least partially attributable to plaintiffs’ interim efforts to enforce a settlement. As the court said at 1194,
Under the circumstances it would be extremely unfair to allow plaintiffs to prove the bulk of their case through these contested admissions.... [Pjlaintiffs, despite any reliance on the admissions, placed into evidence that proof which they could garner to support their case, and the issues covered by the admissions were fully litigated. This Court has, therefore, considered the admissions as evidence in this case, but has not con*671sidered the matters included therein as conclusively established against defendants. (Emphasis added.)
Similarly, extenuating circumstances were found to exist in Warren v. International Bhd. of Teamsters, 544 F.2d 334 (8th Cir.1976), where counsel for defendants misread the rule as allowing forty-five days to respond rather than thirty and as a result, filed a late response. The trial court deemed the requests admitted but, nevertheless, allowed evidence on the “admitted” issues. The appellate court found no abuse of discretion in this action and specifically agreed with the rule relied on by the trial court and stated in Pleasant Hill Bank v. United States of America, 60 F.R.D. 1, 3 (W.D.Mo.1973), as follows:
[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.
Finally, we look to Brook Village North Assocs. v. General Elec. Co., 686 F.2d 66 (1st Cir.1982), in which the court considered both Dependahl and Warren but decided at 73 that where defendants responded nine months after the request for admission was served without either a “simple, technical default [apparently referring to Warren], or a default in which the plaintiff shares responsibility [as in Dependahl ]”, no extenuating circumstances existed. The court rejected the trial court’s standard for opening up admissions once trial has begun, and held that the district court cannot do so simply because it “finds more credible the witnesses of the party against whom the admissions operate.” Nevertheless, the court specifically stated at 73,
This does not mean that a district court is never free to permit withdrawal or amendment of admissions after considering the evidence presented at trial. For example, if a district court reviewing the evidence concludes that no rational fact finder could believe the facts established by the admissions to be true, the court may permit withdrawal or amendment so long as the party who obtained the admissions is not otherwise prejudiced. It is not enough, however, that the court as fact finder disbelieves one party’s expert testimony. (Emphasis added.)
Using this standard, I must disagree with the majority opinion. The language of the trial court, that “when the day comes that we charge, under these circumstances, over $1570 a day, with no further explanation than what I have heard, the bill is not reasonable ...” strongly suggests that it found that “no rational fact finder could believe the facts established by the admissions to be true.” The court simply found the “fact” that such an unexplained charge was “reasonable” to be incredible. This was not a matter of finding one party’s witnesses more credible than another’s, but was a total rejection by the trial court of the premise that absent explanation, anyone could find the “reasonableness” issue in plaintiffs’ favor.
Moreover, here, as in Dependahl, defendant by his trial conduct demonstrated beyond doubt his continuing dispute of the reasonability of the hospital’s charges. Also as in Dependahl, despite the admission, plaintiff went forward with its “proof” of reasonability at trial, attempting to litigate the issues covered by the admission. These factors, in combination with the trial court’s apparent conclusion that the requested admission was totally beyond reason, fully justified the trial court’s action in effect permitting the withdrawal of the “admission” absent a showing by the hospital that it was prejudiced. No such showing was made.
I would agree with the Brook Village court that where the trial court concludes that “no rational fact finder” could believe the admission, a narrow exception to Rule 59.01 exists, and further, I would agree that such a conclusion is warranted by the facts of this case.
I am also concerned with one other aspect of the majority opinion and that is the attention paid to the amount of the charges *672covered by insurance. The majority does not directly state that the question here is the reasonability of the after-insurance charges rather than the entire bill. The majority does, however, note first that the unpaid portion resulted primarily from the fact that the insurance policy covered only $60 of the $260-per-day room charge. The majority then observes that the trial court found a charge of $1570 a day not to be reasonable in spite of the fact that the per diem charge was only $260.
The obvious implication is that, because the per diem room charge was the only part of the bill not covered by insurance, it is the only part of the bill with which the trial court should have concerned itself, that is, $260 per day rather than $1570 per day. Viewed in this after-insurance light, the charge does seem reasonable, but this dimmed light is not bright enough to illuminate this case.
At trial, Mr. Williams informed the court that he was questioning the fact that he was charged for so many items (apparently tests and supplies) without an explanation as to the necessity for those items. (The hospital’s witness admitted that, because she did not know what the medical problem was, she could not answer that question.) Mr. Williams did not mention or question the $260 per day room charge. Since most of the supplies were covered by his insurance, he clearly was not limiting the issue of reasonability to after-insurance, uncovered charges. Nor was the trial court. For this court to do so is contrary to both the stated issue at trial and sound public policy.
For purposes of our analysis, this case is the same as a case in which the defendant has no insurance at all. Such a defendant would obviously be permitted to question the reasonability of the entire $7,850 bill for five days of hospitalization. To limit Mr. Williams to the question of whether the $1390 balance is reasonable not only distorts the true issue and penalizes him for his forethought, as a matter of policy it encourages higher hospital bills by relieving hospitals of the need to justify charges covered by insurance policies. In effect, the majority is saying that if a hospital charges $100 for a certain service, $75 of which is covered by insurance, the hospital need only show the reasonableness of the uncovered $25 portion of the charge rather than the total $100 charge. With such a rule, what incentive would the health care provider have to see that its before-insurance charges can meet a test of reasonability?
Accordingly, I would suggest that Mr. Williams’ insurance coverage is irrelevant and it should be totally disregarded.
For the foregoing reasons, I would affirm the judgment of the trial court.