Authored By: Jennifer A. Cupples
We are all familiar with Michigan Court Rule 2.312(A) which allows a party to serve on another party a written request for the admission of truth of a matter within the scope of MCR 2.302(B) as it relates to statements or opinions of fact or the application of law to fact, including the genuineness of documents. The requests are usually issued keeping in mind that if a party denies the genuineness of a document or the truth of a matter as requested, and if the party requesting the admission later proves that fact to be true, the requesting party may move for an order requiring the other party to pay the expenses incurred in making that proof, including attorney fees, pursuant to MCR 2.313(C)(2). The court rule provides that an order requiring payment of expenses incurred in making that proof shall be entered by the court, unless it finds that (a) the request was held objectionable pursuant to MCR 2.312, (b) the admission sought was of no substantial importance, (c) the party failing to admit has reasonable ground to believe that he or she might prevail on the matter, or (d) there was no other good reason for the failure to admit. MCR 2.313(C)(2).
Applying the requirements of MCR 2.312 and 2.313, the Michigan Court of Appeals in an unpublished per curiam decision, Malusi v Farm Bureau Gen. Ins. Co. of Mich. v Citizens Ins. Co. of America, (Docket No. 341435) (Feb 12, 2019),reversed and remanded the trial court’s order granting third-party plaintiff Farm Bureau’s motion for attorney fees under MCR 2.313(C), finding that the underlying request for admission was not made in accordance with MCR 2.312, thereby precluding recovery of attorney fees by way of MCR 2.313. The Malusi decision relied on a prior case, Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 457; 540 NW2d 696 (1995), which cautioned “the mere fact that the matter was proved at trial does not, of itself, establish that the denial in response to the request for admission was unreasonable”. The Malusi case seems to be exactly what the Richardson court was considering when faced with a motion under MCR 2.313.
In Malusi, the plaintiff was struck by a vehicle while riding his bicycle. The plaintiff’s parents had a no-fault policy with Citizens under which the plaintiff’s vehicle was added and he was listed as an “additional insured”, however, it is unclear from the record where he actually resided. The plaintiff first made claim for PIP benefits through Citizens. When his claim was denied, he sought benefits through the Michigan Assigned Claims Plan (“MACP”) pursuant to MCL 500.3171, and MACP appointed Farm Bureau to the plaintiff’s claim. The plaintiff alleged that Farm Bureau failed to pay him PIP benefits and brought a claim against Farm Bureau, which then filed a third-party complaint against Citizens, claiming that Citizens was responsible for the plaintiff’s PIP benefits as the insurer in highest priority.
Farm Bureau thereafter sent a request for admission to Citizens, asking Citizens to admit that it was the insurer in highest priority. Citizens denied this request. Citizens and Farm Bureau then filed competing motions for summary disposition, with Citizens arguing that it was not liable for the plaintiff’s benefits because he was not a “named insured” and was not domiciled with his parents at the time of the accident. The trial court agreed with Farm Bureau finding that the plaintiff’s status as an “additional insured” under the Citizens policy entitled him to PIP coverage, concluding that there was no question that the plaintiff was a “resident” of his parents’ home and that the contracting parties intended to extend coverage to the plaintiff. Citizens’ motion for summary disposition was therefore denied, and Farm Bureau’s motion was granted by the trial court.
Farm Bureau then moved for attorney fees pursuant to MCR 2.313(C), arguing that Citizens was unreasonable in its refusal to admit that it was the insurer in highest priority. Citizens countered that it had a reasonable belief that the plaintiff did not reside with his parents at the time of the accident and that there was therefore no coverage. The trial court concluded that there was no valid legal basis for Citizens to deny priority status and awarded Farm Bureau nearly $19,000.00 in attorney fees.
Citizens appealed the trial court’s award of attorney fees under MCR 2.313(C) and the Court of Appeals reviewed that decision for an abuse of discretion. Citizens argued that the trial court abused its discretion because Farm Bureau’s request for Citizens to admit priority was an improper subject for an MCR 2.312 request for admission. The Court of Appeals agreed, explaining that the purpose of MCR 2.312 is “to limit areas of controversy and save time, energy, and expense which otherwise would be spent in proffering proof of matters properly subject to admission.” See Richardson, supra. Importantly, the Court of Appeals ruled that MCR 2.312 cannot be used as an avenue to force an opposing party to admit that the plaintiff’s claim has merit. Id., at 457-458.
Applying the above, the Court of Appeals found that Farm Bureau’s request for Citizens to admit that it was the insurer in highest priority was actually a request for Citizens to admit that Farm Bureau’s claim had merit. Thus, an inappropriate subject for a request for admission because the sole claim in Farm Bureau’s third-party complaint was that it was not liable for plaintiff’s PIP benefits because Citizens was in higher priority. Citizens’ refusal to make the admission cannot form the basis for an award of attorney fees under MCR 2.313(C) because it did not comply with MCR 2.312(A). The award of attorney fees was reversed, and the case remanded for further proceedings consistent with the Court of Appeals’ opinion.
The message is clear from Malusi: make sure your requests for admission are proper under MCR 2.312. More specifically, make sure that the requests relate to statements or opinions of fact or the application of law to fact and do not make an attempt to force an opposing party to admit whether there is merit to the claims asserted in the case. Otherwise the failure to admit a request for admission that is later deemed genuine or truthful cannot be used as the basis for a request for attorney fees.