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It is inherent to a trial attorney’s job that we make sure to comply with court directives, including scheduling orders. A recent unpublished Michigan Court of Appeals case warns that when we fail to do so, it could result in our client’s case being dismissed all together.
When an auto accident attorney files a Third Party lawsuit for serious impairment of a body function under MCL 500.3135, there is an expectation that a motion for summary disposition on the existence of that serious impairment is soon to follow. Insurance defendants (whether under liability insurance for the individual defendant, or under an uninsured motorist policy) are quick to try to resolve cases on this threshold issue. But even when we know a motion is coming, a recent unpublished Michigan Court of Appeals decision, Hampton v West, reminds us we still need to be diligent to make sure our responses comply with the court rules and trial court scheduling orders.
On March 5, 2013, Deborah Hampton and Joyia West were in a motor vehicle accident. Hampton suffered cervical neck injuries, but their nature and severity were up for debate. When she filed a Third Party lawsuit against West, the defendant’s lawyers filed the anticipated motion for summary disposition.
In particular, the defendant argued that all of the plaintiff’s diagnostic testing was negative for neck injury. That included:
X-rays of the left shoulder, cervical spine, and thoracic spine on March 7, 2013;
EMGs on April 30, 2013 and May 7, 2013;
MRIs on December 12, 2013 and August 30, 2014.
In addition, two “independent medical examinations” performed by insurance medical experts indicated she had a cervical strain, which had been resolved.
After the defendant filed her motion for summary disposition, the trial court issued a “Motion for Summary Disposition Brief Scheduling Order.” In that order, the court set the hearing for April 8, 2015 and requiring the “non-moving party’s responsive motion and supporting brief shall be filed and received by the Court and opposing counsel on or before March 25, 2015 by 4:30 p.m.” The order then said “If motions and supporting briefs are not timely filed, the Court will assume there is no law to support that party’s position.”
Hampton’s lawyer relied on MCR 2.119(C)(2), which states:
(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:
(a) at least 5 days before the hearing, if served by mail, or
The firm filed her response brief on April 1, 2015. The brief argued that medical records showing “persistent problems with severe migraines, neck pain and shoulder pain” were objective manifestations of her impairment. Her doctors had observed tightness in her trapezius muscle, pain in her left shoulder, and tightness in the cervical paraspinal muscles. The responsive motion argued that these created a question of fact as to the nature and extent of Hampton’s injuries.
But at the April 8, 2015, oral argument, the court rejected those arguments as untimely. The trial court judge said that the responsive brief was filed in violation of the scheduling order, so its arguments and evidence would not be considered.
The plaintiffs’ lawyers appealed, arguing that the trial court erred by ruling on the motion for summary disposition without considering Hampton’s written response or oral argument. The Michigan Court of Appeals disagreed. It noted:
“In fact, MCR 2.119(C)(3) specifically provides that a court—by separate order—may set a different time for filing motions or responses, which occurred in this case. Further, it is well-established that a court may enter scheduling orders and impose time periods that differ from time periods set forth in particular court rules. See People v Grove, 455 Mich 439, 469-470; 566 NW2d 547 (1997); Kemerko Clawson, LLC, 269 Mich App at 350-351.”
While the opinion called the trial court’s refusal to accept a response to summary disposition a “harsh sanction,” the judges refused to substitute their own judgment when the matter was within the trial court’s discretion.
Without the responsive brief and documentary evidence provided on April 1, there was nothing to establish a “genuine issue of disputed material fact” and defeat the motion for summary disposition brought under 2.16(C)(10).
Hampton shows that plaintiffs’ attorneys need to pay particular attention to the scheduling orders issued by the courts. While a court rule may impose a normal deadline for responsive briefs, filing, or other procedural issues, a trial court’s scheduling order will always rule the day. These orders should never be taken for granted. Even a small error in calendaring could result in “harsh sanctions” and could even result in your case being dismissed.
An error like this could also open your firm up to a malpractice lawsuit. If your client is unable to collect her damages from the defendant because of your negligence, he or she may try to collect it from you. Plaintiffs’ attorneys should take care to properly calendar all the dates included in a scheduling order, and make sure that all support staff know how to confirm deadlines. This extra step could be the difference between a happy client and defending an expensive lawsuit.
David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He has been representing plaintiffs against the auto insurance industry for over 25 years. If your client is facing complex no-fault or Third Party litigation, contact Christensen Law today for a referral.