            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



FELIX CIMINELLI and SUZANNE CIMINELLI,                              UNPUBLISHED
                                                                    January 2, 2020
               Plaintiffs-Appellants,

v                                                                   No. 343980
                                                                    Wayne Circuit Court
HOME-OWNERS INSURANCE COMPANY,                                      LC No. 17-006110-NF

               Defendant-Appellee.


Before: FORT HOOD, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

       Plaintiffs appeal by right the trial court’s order granting defendant’s second motion to
dismiss for failure to participate in discovery. We vacate that order and remand for further
proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Plaintiffs were involved in an automobile accident in 2014; defendant was their
automobile insurer at the time. In April 2017, plaintiffs filed a complaint alleging that defendant
had breached the parties’ contract by failing to pay no-fault benefits stemming from that
accident.

       In October 2017, the parties filed cross-motions to compel discovery. The trial court
subsequently entered a stipulated order compelling plaintiffs to respond within 14 days to
defendant’s interrogatories and requests for production of documents.

       In November 2017, defendant scheduled physical medicine and neurosurgery
independent medical examinations (IMEs) for both plaintiffs. Plaintiffs failed to appear.
Defendant moved to dismiss the case, and the trial court instead ordered plaintiffs to attend the
IMEs within 60 days. Plaintiffs appeared for the physical medicine IMEs, but did not appear for
the neurosurgery IMEs. After learning that plaintiffs were being treated by an orthopedic
surgeon as well as a neurosurgeon, defendant attempted to also schedule orthopedic surgery
IMEs for both plaintiffs, but plaintiffs informed defendant of a scheduling conflict on the chosen
dates. After defendant rescheduled the orthopedic surgery and neurosurgery IMEs, plaintiff’s
counsel contacted defendant via email and stated that the neurosurgery and orthopedic surgery


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IMEs were redundant and that he would not inform plaintiffs of an IME appointment until
defendant agreed to cancel one or the other.

       The record reflects that plaintiff’s own depositions were also rescheduled three times,
with the last deposition date being April 3, 2018. However, on March 23, 2018, plaintiffs’
counsel sent defendant an email stating that plaintiff Felix Cimminelli (Felix) had suffered a
seizure and could not be deposed. Defendant received a letter from Felix’s psychiatrist
recommending that his deposition be postponed. Neither plaintiff appeared for the scheduled
depositions on April 3, 2018.

        Defendant filed a second motion to dismiss on the ground that plaintiffs had willfully
obstructed discovery by failing to appear at their IMEs and their own depositions and should be
sanctioned by the dismissal of their suit. The trial court granted defendant’s motion, and denied
plaintiffs’ motion for reconsideration.

       This appeal followed.

                                 II. STANDARD OF REVIEW

       This Court reviews for an abuse of discretion a trial court’s imposition of discovery
sanctions. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 630; 750 NW2d 228 (2008). “An
abuse of discretion occurs when the decision is outside the range of principled outcomes.”
Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659-660; 819 NW2d 28 (2011).

                                        III. ANALYSIS

        Plaintiffs argue that the trial court abused its discretion by dismissing the case without
first conducting the requisite legal analysis or evaluating alternative sanctions on the record. We
agree.

        MCR 2.313(B)(2)(c) provides: “If a party . . . fails to obey an order to provide or permit
discovery, . . . the court in which the action is pending may order such sanctions as are just,
including, but not limited to . . . dismissing the action.” “A court may impose the severe
sanction” of dismissal “ ‘only when a party flagrantly and wantonly refuses to facilitate
discovery, not when the failure to comply with a discovery request is accidental or
involuntary.’ ” Hardrick, 294 Mich App at 661-662, quoting Bass v Combs, 238 Mich App 16,
26; 604 NW2d 727 (1999), overruled in part on other grounds by Dimmitt & Owens Fin, Inc v
Deloitte & Touche (ISC), LLC, 481 Mich 618, 628 (2008).

       The following factors must be considered in determining the appropriateness of a
discovery sanction:

       [W]hether the violation was wilful or accidental; (2) the party’s history of
       refusing to comply with discovery requests (or refusal to disclose witnesses); (3)
       the prejudice to the [other party]; (4) actual notice to the [other party] of the
       witness and the length of time prior to trial that the [other party] received such
       actual notice; (5) whether there exists a history of [the party’s] engaging in
       deliberate delay; (6) the degree of compliance by the [party] with other provisions


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       of the court’s order; (7) an attempt by the [party] to timely cure the defect, and (8)
       whether a lesser sanction would better serve the interests of justice. [Bass, 238
       Mich App at 26-27, quoting Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d
       571 (1990) (alterations in original).]

        Dismissal as a discovery sanction “should be entered only in the most egregious
circumstances.” Kalamazoo Oil Co v Boerman, 242 Mich App 75, 87; 618 NW2d 66 (2000).
“[B]ecause default is a severe sanction, it is imperative that the trial court balance the factors and
explain its reasons for imposing such a grave sanction to allow for meaningful appellate review.”
Id. at 88, citing Bass, 238 Mich App at 26-27; Thorne v Bell, 206 Mich App 625; 632-633, 522
NW2d 711 (1994). “The court must also evaluate on the record other available options before
concluding that a drastic sanction is warranted.” Frankenmuth Mut Ins Co v ACO, Inc, 193 Mich
App 389, 397; 484 NW2d 718, 722 (1992). “The record should reflect that the trial court gave
careful consideration to the factors involved and considered all of its options in determining what
sanction was just and proper in the context of the case before it.” Duray Dev, LLC v Perrin, 288
Mich App 143, 165; 792 NW2d 749 (2010). A trial court’s failure to explain its reasons for
dismissal on the record constitutes an abuse of discretion. Vicencio v Ramirez, 211 Mich App
501, 506-507; 536 NW2d 280 (1995), citing Hanks v SLB Mgt, Inc, 188 Mich App 656, 658; 471
NW2d 621 (1991).

        In this case, at the very outset of discovery, plaintiffs had to be compelled to respond to
written discovery requests. Plaintiffs then failed to appear at their first set of physical medicine
and neurosurgery IMEs despite being under a statutory duty to do so. See MCL 500.3151
(“When the mental or physical condition of a person is material to a claim . . . for past or future
personal protection insurance benefits, the person shall submit to mental or physical examination
by physicians”). The trial court entered an order directing plaintiffs to “appear for their IMEs . . .
by March 13, 2018.” Plaintiffs appeared at one IME, but instead of appearing at the court-
ordered neurosurgery IMEs or the orthopedic surgery IMEs that defendant later requested,
plaintiffs’ counsel sent a letter stating that his clients would only attend either a neurosurgery
IME or an orthopedic IME, not both. Plaintiffs’ counsel had no authority to unilaterally modify
plaintiffs’ statutory duty or the court order to appear at the neurosurgery IMEs; only the court
could do so with an order, under MCL 500.3159, “to protect against annoyance, embarrassment
or oppression.” Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 194; 732 NW2d 88 (2007)
(holding that even a court “may not impose conditions on [an IME]” if “an insured fails to
demonstrate good cause that submission to particular examination will cause annoyance,
embarrassment, or oppression.”) In any event, plaintiffs never attended another IME of any
variety.

        Furthermore, plaintiffs rescheduled their own depositions three times—once by
agreement, once by canceling the depositions two days before the scheduled date due to an
asserted scheduling conflict, and once so that Felix could undergo further medical examinations
for his seizure. Plaintiffs never explained why Felix—who was allegedly too occupied with
neurological testing to be deposed—could not be examined by defendant’s neurosurgeon. And
plaintiffs never offered an excuse for plaintiff Suzanne Ciminelli (Suzanne)’s failure to appear
for her IMEs and deposition.




                                                 -3-
        At the hearing on defendant’s motion to dismiss, defense counsel informed the court that
plaintiffs had missed three depositions and a combined 10 IMEs. Plaintiffs’ counsel admitted
that he had demanded that defendant choose between a neurosurgery and orthopedic surgery
IME. The trial court stated that “[b]ecause of the failure to appear at all these [depositions and
IMEs] the Court will grant the motion.”

        We conclude that the trial court abused its discretion by imposing the sanction of
dismissal without considering, on the record, any of the factors listed above or explaining how
other, lesser sanctions were not proper. . See Bass, 238 Mich App at 26-27; Duray Dev, 288
Mich App at 165. Although plaintiffs’ conduct may indeed warrant the imposition of the
sanction of dismissal,1 “[o]ur legal system favors disposition of litigation on the merits[,]”
Vicencio, 211 Mich App at 507, and a trial court seeking to impose dismissal as a sanction for
discovery violations must do so in a deliberate and explicit way, on the record, that is amenable
to appellate review. Kalamazoo Oil Co, 242 Mich App at 87-88. In this case, the trial court
abused its discretion by failing to place its reasoning and consideration of alternative sanctions
on the record, and as a result we must vacate its order and remand for further proceedings
consistent with this opinion. Vicencio, 211 Mich App at 506-507.

       Vacated and remanded for further proceedings. We do not retain jurisdiction.



                                                            /s/ Karen M. Fort Hood
                                                            /s/ Deborah A. Servitto
                                                            /s/ Mark T. Boonstra




1
  We note that the record of the case shows that the trial court had, on multiple occasions,
unsuccessfully attempted to secure plaintiffs’ compliance with their discovery obligations by
way of earlier court orders that imposed lesser sanctions. Further, defendant was arguably
prejudiced because it could not defend against plaintiffs’ assertion of a causal connection
between the accident and plaintiffs’ medical conditions without timely examinations by
physicians of defendant’s choosing. The no-fault act addresses that exact risk of prejudice by
requiring plaintiffs to submit to such examinations. MCL 500.3151(1).



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