Scott v. City of Detroit

M. J. Kelly, J.

(concurring). I concur in affirming the award of summary judgment in favor of defendant Employers Mutual Liability Insurance Company. We granted rehearing on August 11, 1981, and directed the plaintiff to "supplement his brief by showing this Court what evidence it would introduce at trial to show that Employers’ inspector or other designated employee visited the tunnel site * * Plaintiff’s briefs failed to directly respond to that order and his supplemental brief fails to zero in on the issue by confusing the inspector’s visits to the above-ground overall job site with visits to the tunnel site.

Plaintiff’s brief centers squarely on certain interrogatories propounded to defendant insurance company and the answers made by defense counsel to certain of those interrogatories. Neither party addresses the propriety of those answers and I write to discourage the method used by counsel for the defendant in answering the interrogatories.

On July 14, 1975, plaintiff submitted 31 interrogatories to defendant which were answered by defendant’s attorney on September 5, 1975. The following jurat was employed:

"State of Michigan ] County of Wayne j ss'
John A. Kruse, being duly sworn, states that he is the attorney for the defendant, Employers Mutual Liability Insurance Company of Wisconsin, that no individual within that organization is capable of answering all of the interrogatories and that the information contained in the answers to the interrogatories was gath*247ered by him as counsel and he believes the answers to be true.
Further, the deponent saith not.
'Vs/ John A. Kruse
John A. Kruse”

Question No. 28 began as follows:

"State whether any person acting in your behalf was ever present on the subject construction site from date of commencement of said construction up to and including the date of plaintiffs injury for any reason whatsoever * * *.”

The interrogatory then went on to ascertain the name, date, details and communications made by any such person. GCR 1963, 309.2 mandates this question to constitute a continuing interrogatory with respect to which the adverse party must reveal any subsequently acquired knowledge. The names of two persons were provided by counsel for the insurance company. Then the following interrogatory, No. 29, was posed:

"State and list all safety equipment provided on the job site where plaintiff alleges injury and for use in connection with the job task plaintiff was performing at said time and state the name and address of every person responsible for the procurement and placement thereof.”

Defendant’s answer responded:

"29. This defendant was not present and has no knowledge.”

What does that mean? If defendant was inserted instead of deponent one would have to presume it was an artless dodge of the question. If defendant *248truly means the corporate defendant, how could it be present except through an agent or employee acting in its behalf? Either way the answer is irregular and I believe incompetent. The parties have argued the substance of these questions and answers and the information to be interpolated therefrom. The majority opinion addresses the substance of these answers at the beginning of ¶ 5 and perhaps correctly so, for failure of the plaintiff to question the propriety, sufficiency and regularity of the answers submitted and the method employed by defendant Employers Mutual Liability Insurance Company through its attorney. I do not address the effect of the failure of the plaintiff to object to or move to strike these answers. I do suggest, however, that the answers are improper. Certainly there is no room for interpolating information therefrom, the drawing of inferences or supplying missing terms such as a tunnel site, which is what the plaintiff has urged us to do.

I therefore concur in the result reached by the majority, but reprove the method employed by defendant in answering interrogatories in apparent disregard for the applicable court rules.