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
MAGER DREW, UNPUBLISHED
August 18, 2022
Plaintiff-Appellant,
v No. 358546
Wayne Circuit Court
NATIONWIDE MUTUAL FIRE INSURANCE LC No. 20-005220-NI
COMPANY,
Defendant-Appellee.
Before: GADOLA, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Plaintiff appeals by delayed leave granted1 the trial court’s order granting defendant’s
motion to dismiss on the basis that plaintiff failed to attend scheduled independent medical
examinations (IME). Because we conclude the trial court abused its discretion when it dismissed
plaintiff’s complaint, we reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
In this first-party action under the no-fault act, MCL 500.3101 et seq., plaintiff Mager Drew
was injured in a motor vehicle accident in Wayne County, Michigan. Plaintiff filed a complaint
alleging that defendant Nationwide Mutual Fire Insurance Company, his no-fault insurer, failed to
pay the required no-fault benefits after the accident.
Defendant scheduled an IME with an orthopedic surgeon for plaintiff to occur on
September 10, 2020. Defendant later scheduled a neurology IME for plaintiff to occur on
October 28, 2020. Plaintiff first requested that the September 10, 2020 IME be rescheduled, and
this appointment was rescheduled for October 16, 2020. Plaintiff later requested that the
October 16, 2020 and October 28, 2020 IMEs be rescheduled because of health concerns,
1
Drew v Nationwide Mut Fire Ins Co, unpublished order of the Court of Appeals, entered
December 2, 2021 (Docket No. 358546).
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including being in a high-risk population for COVID-19 and also having undergone a recent stent
placement resulting from heart conditions. It is undisputed that plaintiff attended a physical
therapy session on October 14, 2020 and treated with another physician on October 15, 2020.
On December 8, 2020, defendant moved to dismiss, arguing that plaintiff’s failure to
appear for multiple scheduled IMEs was in violation of MCL 500.3151. Plaintiff opposed the
motion, arguing that the dismissal of his claim was not proper because he had answered
defendant’s written discovery and also appeared for a deposition. Plaintiff asserted that all of his
requests for rescheduling defendant’s IMEs were because of health concerns, including being at
high risk for exposure to COVID-19 and having undergone emergency heart surgery in June 2020.
At a hearing on defendant’s motion to dismiss, the court granted defendant’s motion,
stating: “He shows up from [sic] what he wants to show up for. That’s the bottom line.” The court
noted that plaintiff went to physical therapy and doctors’ appointments but failed to appear for the
IMEs. The court further stated that plaintiff was required to comply with defendant’s request for
an IME and he demonstrated a pattern of deliberate delay and willful misconduct in failing to
appear. The court entered an order granting defendant’s motion to dismiss “for the reasons stated
on the record.”
Plaintiff subsequently filed a motion for reconsideration, arguing that the court was
improperly misled by defendant and failed to consider alternative sanctions or orders. The trial
court denied the motion, and this appeal followed.
II. STANDARDS OF REVIEW
“We review a trial court’s imposition of discovery sanctions for an abuse of discretion.”
Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659; 819 NW2d 28 (2011). In addition,
“[t]his Court reviews for an abuse of discretion a trial court’s ruling on a motion for
reconsideration.” Auto-Owners Ins Co v Compass Healthcare PLC, 326 Mich App 595, 607; 928
NW2d 726 (2018) (quotation marks and citation omitted). “An abuse of discretion occurs when
the decision is outside the range of principled outcomes.” Id. at 659-660. “This Court . . . reviews
de novo the interpretation of statutes, court rules, and legal doctrines.” Glasker-Davis v
Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020).
III. DISCUSSION
Plaintiff argues that the trial court abused its discretion in denying his motion for
reconsideration of the trial court’s order granting defendant’s motion to dismiss and also in
granting defendant’s motion to dismiss because the court’s decision was solely premised on
plaintiff’s failure to comply with discovery without the requisite legal analysis or evaluation of
alternative sanctions made on the record. Plaintiff also asserts, with respect to the court’s order
denying his motion for reconsideration, that the trial court made a palpable error when the requisite
legal analysis and evaluation of alternative sanctions were not present in the trial court’s original
decision to grant defendant’s motion to dismiss. We agree.
MCL 500.3153 states:
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A court may make such orders in regard to the refusal to comply with
sections 3151 and 3152 as are just, except that an order shall not be entered directing
the arrest of a person for disobeying an order to submit to a physical or mental
examination. The orders that may be made in regard to such a refusal include, but
are not limited to:
(a) An order that the mental or physical condition of the disobedient person
shall be taken to be established for the purposes of the claim in accordance with the
contention of the party obtaining the order.
(b) An order refusing to allow the disobedient person to support or oppose
designated claims or defenses, or prohibiting him from introducing evidence of
mental or physical condition.
(c) An order rendering judgment by default against the disobedient person
as to his entire claim or a designated part of it.
(d) An order requiring the disobedient person to reimburse the insurer for
reasonable attorneys’ fees and expenses incurred in defense against the claim.
(e) An order requiring delivery of a report, in conformity with section 3152,
on such terms as are just, and if a physician fails or refuses to make the report a
court may exclude his testimony if offered at trial.
Thus, it is clear that dismissal of plaintiff’s suit was a potential sanction for failing to attend
scheduled IMEs. It is also clear that the trial court had alternative remedies it could fashion short
of dismissal.
“Dismissal is a drastic step that should be taken cautiously.” Vicencio v Ramirez, 211 Mich
App 501, 506; 536 NW2d 280 (1995). “Before imposing such a sanction, the trial court is required
to carefully evaluate all available options on the record and conclude that the sanction of dismissal
is just and proper.” Id. In addition, “[o]ur legal system favors disposition of litigation on the
merits.” Id. at 507. In reaching the decision as to whether the sanction of dismissal is appropriate,
the trial court should consider:
(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.; see also Duray Dev,
LLC v Perrin, 288 Mich App 143, 165, 792 NW2d 749 (2010).]
This Court has repeatedly stated that trial courts are to carefully consider alternative
sanctions on the record and evaluate the above factors when deciding whether to dismiss a party’s
claim. See Swain v Morse, 332 Mich App 510, 524; 957 NW2d 396 (2020) (“A trial court must
give careful consideration to the factors involved and consider[] all of its options in determining
what sanction [is] just and proper in the context of the case before it.”) (quotation marks and
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citation omitted; alteration in original); Perrin, 288 Mich App at 164-165 (same); Vicencio, 211
Mich App at 507 (stating that “[b]efore imposing [dismissal], the trial court is required to carefully
evaluate all available options on the record and conclude that the sanction of dismissal is just and
proper”); Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990)2 (“While it is within the
trial court’s authority to bar an expert witness or dismiss an action as a sanction for the failure to
timely file a witness list, the fact that such action is discretionary rather than mandatory
necessitates a consideration of the circumstances of each case to determine if such a drastic
sanction is appropriate.”).
In MacArthur Patton Christian Ass’n v Farm Bureau Ins Group, 403 Mich 474, 477-478;
270 NW2d 101 (1978), the Michigan Supreme Court held that the trial court abused its discretion
when it dismissed the plaintiff’s claim because other less drastic sanctions were available. In
MacArthur, the defendant filed a motion to dismiss against the plaintiff, who failed to appear for
a deposition on two occasions only nine days apart. Id. at 475-476. The plaintiff argued that his
failure to attend was not “willful” within the meaning of the applicable court rule. Id. at 477. The
Michigan Supreme Court agreed with the plaintiff, finding that this was “not a case where the
failure to respond to discovery requests extends over substantial periods” or where “the failure to
provide discovery [was] in violation of a direct order of the trial court.” Id. The Court held that
“the use of the most drastic sanction of dismissal with prejudice was not justified by the facts of
this case.” Id. at 478.
In this case, the trial court made no effort to carefully consider alternative sanctions or
evaluate all available options on the record when it concluded that dismissal was appropriate. The
trial court noted that plaintiff had attended scheduled appointments with his own medical providers
but failed to appear for the scheduled IMEs around the same period of time. The trial court stated
that plaintiff “shows up from [sic] what he wants to show up for” and that he displayed a “pattern
of deliberate delay and . . . willful misconduct” in failing to appear for the IMEs. However, the
trial court neglected to analyze plaintiff’s purported “willful misconduct,” such as considering the
reasons for his failure to attend, nor did it consider any other factors on the record. In addition,
while the trial court concluded that plaintiff’s violation of MCL 500.3151 was willful, it did not
consider on the record that plaintiff complied with defendant’s other discovery requests, such as
responding to written discovery and appearing for a deposition. The trial court made no mention
of plaintiff’s assertions that for the medical appointments he did attend, his medical providers
made special accommodations for him to protect him from contracting COVID-19. The trial court
also failed to mention on the record that plaintiff was an elderly man who had heart complications
and had recently undergone a heart procedure, which made him especially vulnerable, especially
to complications resulting from COVID-19.3 While a court order is not necessary to require
plaintiff to appear for an IME, see MCL 500.3151(1) (“[A]t the request of an insurer the person
shall submit to mental or physical examination by physicians”), plaintiff otherwise did not have a
2
“A decision from this Court published before November 1, 1990, is not binding but may be relied
on for its persuasive value.” Premier Prop Servs, Inc v Crater, 333 Mich App 623, 634 n 5; 963
NW2d 430 (2020).
3
At the time defendant scheduled the IMEs, COVID-19 cases were surging within Wayne County
and no vaccine for the virus was yet publicly available.
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history of refusing to comply with previous court orders in this case. See MacArthur, 403 Mich
at 477 (dismissal was an abuse of discretion where, in part, the plaintiff did not refuse discovery
“in violation of a direct order of the trial court.”).
Nor did the trial court expressly examine the factor regarding prejudice. This factor is
notable in this case because plaintiff did not simply cancel the scheduled IMEs, but instead offered
to reschedul these examinations and stipulate to an order adjourning scheduling order dates,
including extending the discovery cutoff date. While defendant correctly notes that the timing of
an IME is important because it represents a “snapshot” of a claimant’s health, the court failed to
address on the record whether defendant would suffer any prejudice.
Defendant contends that the trial court properly analyzed the appropriate factors because
plaintiff’s counsel argued at the hearing on the motion to dismiss that an order to compel plaintiff’s
appearance at an IME could have been entered, and yet the trial court still dismissed the case. In
addition, defendant argues that defense counsel identified the factors from Dean at the motion
hearing, and the trial court noted that plaintiff displayed a pattern of deliberate delay and willful
misconduct. However, merely hearing the arguments from the parties does not demonstrate that
the court carefully considered these factors or considered alternative sanctions on the record. It is
clear that the trial court did not “carefully evaluate all available options on the record,” Vicencio,
211 Mich App at 507, such as those delineated in MCL 500.3153, when concluding that dismissal
was appropriate. Because the trial court failed to consider any alternatives when determining
whether the sanction of dismissal was appropriate, the trial court abused its discretion.
Defendant also argues that the trial court was not required to evaluate alternative sanctions
or evaluate all options on the record before dismissing plaintiff’s claims because this was a
statutory violation under the no-fault act, and not merely a discovery violation. We disagree. In
support, defendant relies on Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 181; 732 NW2d
88 (2007), in which the plaintiff sought medical and psychiatric treatment for injuries sustained in
an automobile accident. After the plaintiff filed suit against the defendant-insurer, the defendant
demanded that the plaintiff submit to an IME under MCL 500.3151. Id. at 182. The plaintiff
refused, arguing that MCL 500.3151 and her insurance policy with the defendant were not
exclusively controlling, and that “the conduct of any [IME] was also governed by MCR 2.311(A),
the rule covering [IMEs] in litigation of any kind.” Id. The defendant disputed this assertion,
arguing that MCR 2.311(A) conflicted with MCL 500.3151 because MCR 2.311 allowed “court-
created conditions on the examination.” Id. The defendant filed a motion to compel the plaintiff
to submit to an IME under MCL 500.3151, and the trial court ordered the plaintiff to submit to the
IME, subject to conditions proposed by the plaintiff. Id. at 182-183. The defendant filed an
application for an interlocutory appeal, and this Court affirmed the trial court’s order. Id. at 183.
The Michigan Supreme Court reversed, concluding that “the no-fault act comprehensively
addresses the matter of claimant examinations,” and MCR 2.311 was not “applicable to such
examinations.” Id. at 191. Further, it stated that “[w]hile the court rules control matters on which
the no-fault act is silent, they do not control matters specifically addressed by the act.” Id. at 190.
The Supreme Court reasoned that MCR 2.311 was not applicable because that “court rule requires
pending litigation and the insurer to show good cause, and allows court-imposed conditions as a
predicate to the examination while § 500.3151 does not have these requirements.” Id. The Court
rejected the plaintiff’s argument that MCR 2.311 should have controlled because “claims and
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investigations are procedural” and not substantive. Id. at 191. It stated that “a statute is substantive
when . . . it concerns a matter that has as its basis something other than court administration.”
Muci, 478 Mich at 191 (quotation marks and citation omitted). The Supreme Court reasoned that
“the provisions concerning medical examinations” did not concern court administration and were
substantive. Id. Finally, the Court held that “[a] trial court’s ability to adjudicate disputes arising
under the statute and the insurance policy regarding examinations is limited to the authority
granted by the no-fault act itself . . . .” Id. at 194.
Muci is not applicable to this case. The factors laid out in Dean and Vicencio are for the
court’s consideration in determining whether dismissal is a just and proper sanction. As noted
above, this Court has repeatedly required trial courts to carefully consider alternative sanctions on
the record and evaluate factors in determining that dismissal is appropriate. See Perrin, 288 Mich
App at 165; Vicencio, 211 Mich App at 507. While defendant suggests that prior cases from this
court involved discovery violations and did not exclusively involve a plaintiff’s failure to submit
for an IME, we see no reason to depart from the long line of cases holding that an abuse of
discretion occurs when a court fails to place its reasoning and consideration of alternative sanctions
on the record.
In addition, the factors stated in Dean and Vicencio do not infringe on an insurer’s right to
require an IME of a claimant under MCL 500.3151, nor do they preclude courts from dismissing
a claim for a plaintiff’s failure to attend an IME. Conversely, in Muci, the applicable court rule
directly conflicted with MCL 500.3151 because it added conditions as a predicate to an IME that
MCL 500.3151 did not. Caselaw noting that “[t]he record should reflect that the trial court gave
careful consideration to the factors involved and considered all its options in determining what
sanction was just and proper,” Kalamazoo Oil Co v Boerman, 242 Mich App 75, 86; 618 NW2d
66 (2000), is not analogous to the court-imposed conditions as a predicate to an IME in Muci, and
MCL 500.3153 is largely silent as to factors the court should consider in determining sanctions.
Accordingly, Muci is not applicable in the instant case, and the trial court was, as a proper exercise
of its discretion, required to evaluate alternative sanctions or evaluate all options on the record
before it dismissed plaintiff’s claim.
Reversed and remanded to the trial court for further proceedings consistent with this
opinion. Plaintiff, as the prevailing party, may tax costs. MCR 7.219(A). We do not retain
jurisdiction.
/s/ Michael F. Gadola
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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