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Lawyers’ Corner: Late Responses in Communicare Michigan v ACIA

It’s a trial attorney’s duty to make sure responses to Interrogatories and Requests to Admit are filed on time. But when clerical errors lead to late responses, is there anything you can do to save your client’s case?

The recent unpublished Court of Appealse case Communicare Michigan, LLC v Automobile Club Insurance Association (ACIA), explains when and how a court can extend deadlines to allow for late responses to Requests to Admit. Applying Janczyk v Davis, a published opinion from 1983, the court decided the plaintiff should be allowed to file late responses to the defendant’s Requests to Admit over 2 months after they were due.

The Defendant’s insured, Lori Rodebush was in an auto accident resulting in a traumatic brain injury. A few months later she was admitted to a neuro-rehabilitation program operated by Communicare – the plaintiff. Defendant ACIA denied its claim for no-fault benefits under Rodebush’s coordinated no-fault insurance policy.

ACIA served Communicare with Requests to Admit on April 1, 2014, which stated (1) that Rodebush’s health care policy was primary to the no-fault policy; and (2) that ACIA was not the highest priority no-fault insurer. When Communicare did not respond, ACIA filed a motion for summary disposition on May 19, 2014.

Communicare sent in its late responses to Request to Admit on July 7, along with its response to the motion for summary disposition. At the hearing on July 23, the plaintiff’s lawyer asked for an extension to make the late responses timely. The trial judge refused.

But the Court of Appeals found this was an abuse of discretion. MCR 2.312 applies to written requests for admission. It says:

Each mater as to which a request is made is deemed admitted unless, within 28 days after service of the request, or within a shorter or longer time as the court may allow, the party to whom the request is directed serves on the party requesting the admission a written answer or objection addressed to the matter.

MCR 2.312(D)(1) says:

“A matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of an admission. For good cause the court may allow a party to amend or withdraw an admission. The court may condition amendment or withdrawal of the admission on terms that are just.”

Janczyk lays out the factors for a court to consider in extending the deadline for late responses:

  1. Whether the late response will “aid in the presentation of the action” or whether “refusing the request would eliminate the trial on the merits.”
  2. Whether the other party would be prejudiced by a late response.
  3. The reason for delay.

The appeals court applied the Janczyk factors to Communicare’s case and came out finding an abuse of discretion. The late responses to the Request to Admit would have wholly dispense with the case – resulting in an immediate summary disposition. With trial still 6 months away, ACIA wasn’t prejudiced by the late responses being allowed. It still had plenty of time to investigate and present proof that Rodebush’s health insurance was not an ERISA policy, as Communicare alleged in its late responses, and that there was another no-fault insurer of higher priority.

As for the reason for the delay, Communicare didn’t answer that question in its response to the Motion for Summary Dispoition, but later, in its Motion for Reconsideration, it called the omission a “clerical error.” The court noted:

“Communicare gains absolutely nothing by withholding facts that would, at least on their face, decide the case in its favor. As such, there is no basis to suggest that delay in answering the request was an intentional delay rather than inadvertent error.”

When trial attorneys miss discovery deadlines, sometimes it is because they, or their clients, are trying to postpone disclosure of some unfavorable information. But late responses to Requests to Admit rarely benefit a party. That’s what makes discovery deadlines, especially on Requests to Admit, so crucial for client advocates.

But as Communicare demonstrates, all is not lost when a clerical error results in late responses. Janczyk and MCR 2.312 allow trial judges to extend deadlines and withdraw admissions as long as attorneys do their work and file the right motions in time to defeat the inevitable motion for summary disposition.

David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He has been handling discovery issues in no-fault cases for nearly 25 years. Look for David as a featured speaker at the Institute for Continuing Legal Education’s upcoming No-Fault Institute in April 2016. If your client is facing a difficult no-fault issue, contact Christensen Law today for a referral.