                          STATE OF MICHIGAN

                              COURT OF APPEALS



DARREEN ZIRKER and NORMAN WEST,                                      UNPUBLISHED
                                                                     July 19, 2016
               Plaintiffs-Appellants,

v                                                                    No. 326129
                                                                     Wayne Circuit Court
AUTO-OWNERS INSURANCE COMPANY,                                       LC No. 14-009743-NF

               Defendant-Appellee.


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


Fort Hood, J. (dissenting).

       I respectfully dissent. I would hold that the trial court abused its discretion in granting
defendant’s motion for summary disposition on the basis of plaintiffs’ failure to timely respond
to defendant’s request for admissions.

        As stated by the majority, I agree that the resolution of this case depends on balancing the
three factors articulated by this Court in Janczyk v Davis, 125 Mich App 683, 692; 337 NW2d
272 (1983). In determining whether to allow a party to file late answers to a request for
admissions, the court must first consider “whether or not allowing the party to answer late ‘will
aid in the presentation of the action.’ In other words, the trial judge should consider whether or
not refusing the request will eliminate the trial on the merits.” Id. (citation omitted). Next, the
trial court should consider whether the requesting party would suffer any prejudice if the court
were to allow a late answer. Id. Finally, “the trial court should consider the reason for the delay:
whether or not the delay was inadvertent.” Id. at 692-693.

        As the majority concludes, two of the three Janczyk factors weigh in favor of plaintiffs.
However, the majority opines that the third factor, whether the delay in responding to the request
for admissions was inadvertent, weighs so heavily in favor of defendant that it merits dismissal
of plaintiffs’ case. I disagree.

       Initially, I reject the majority’s cursory dismissal of the first and second Janczyk factors
as seemingly unimportant. Here, deeming the answers to the request for admissions admitted




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leads to a complete dismissal of this case on the merits. Notably, were only four1 requests for
admissions for each plaintiff, and the requests were dispositive to the case. Clearly, the request
for admissions do not appear to be for the purpose of the “elimination of uncontested issues and
expedition of trial,” id. at 691, but rather a successful maneuver by defendant’s attorney to
swiftly eliminate the case. Such action, clearly contrary to the intention of the court rule, is in
my opinion no less egregious than plaintiffs’ negligence in failing to respond to the request for
admissions. Further, there is no indication that defendant would be prejudiced by allowing
defendant’s late answer to the request for admissions. Considering the content and form of the
request for admissions, no valuable information would be obtained by the answers. Further,
plaintiffs did respond to the request for admissions (albeit past the deadline), discovery had not
expired, and the parties had indeed been engaging in discovery, including depositions.

        In regard to the third factor, I agree with the majority that the issue is whether the failure
to respond to the request for admissions 28 days after the documents were filed was inadvertent.
Here, while the conduct of plaintiffs’ counsel throughout this case demonstrates a pattern of
neglect, the failure to respond within the 28-day period seems to simply be one in a number of
inadvertent oversights, rather than an intentional act, as the majority opines.

        Overall, I am not convinced that punishing plaintiffs in this matter would be just,
especially after weighing all of the factors. Again, the policy of the court rule is the “elimination
of uncontested issues and expedition of trial.” Id. (quotation marks and citations omitted). The
issues involved in the request for admissions were not uncontested; they were the heart of
plaintiffs’ case. In light of the significance of the admissions, the “balance between the interests
of justice and diligence in litigation” weighs in favor of the interests of justice. Id. at 691.
Therefore, I would reverse trial court’s order granting defendant’s motion for summary
judgment.

                                                              /s/ Karen M. Fort Hood




1
  Despite there only being four inquiries in the request for admissions, the inquiries were
combined with interrogatories, which were far more extensive.


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