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### STATE OF MICHIGAN

COURT OF APPEALS

DARREEN ZIRKER and NORMAN WEST,

Plaintiffs-Appellants, UNPUBLISHED July 19, 2016

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

Defendant-Appellee.

Before: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

Fort Hood, J. ( dissenting ).

I respectfully dissent. I woul d hold that the trial court abu sed its discretion in granting defendant’s motion for summary disposition on the basis of plai ntiffs’ failure to timely respond to defendant’s request for admissions.

As stated by the majority, I ag ree that the res olution 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 la te answers to a request for admissions, the court must first consider “whether or not allow ing the party to answer late ‘will aid in the presentation of the action.’ In other words, the tr ial judge should c onsider whether or not refusing the request will eliminate the trial on the merits .” Id . (citation omitted). Next, the

trial court should consider wheth er the requesting party would suffer any prejudice if the court

were to allow a late answer. Id . Finally, “the trial court shou ld 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 d efendant that it merits dismissal of plaintiffs’ case. I disagree.

Initially, I reject the majorit y’s cursory dismissal of the fi rst and second Janczyk factors as seemingly unimportant. Here, deeming the answers to the req uest for admissions admitted-2- leads to a complete dismissal of this case on the merits. Nota bly, were only four 1 requests for admissions for each plaintiff, and the requests were dispositiv e to the case. Clearly, the request for admissions do not appear to be for the purpose of the “elim ination of uncontested issues and expedition of trial,” id . at 691, but rather a successful maneuver by defendant’s attor ney to swiftly eliminate the case. Such action, clearly contrary to t he intention of the court rule, is in my opinion no less egregious than plaintiffs’ negligence in fai ling to respond to the request for admissions. Further, there is no indication that defendant wou ld be prejudiced by allowing defendant’s late answer to the request for admissions. Conside ring the content and form of the request for admissions, no valuab le information would be obtain ed by the answers. Further, plaintiffs did respond to the request for admissions (albeit pa st the deadline), discovery had not expired, and the parties had i ndeed 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 docu ments 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 po licy of the court rule is the “e limination of uncontested issues and expedition of trial.” Id . (quotation marks and citations omitted). The issues involved in the request f or admissions were not uncontes ted; they were the heart of plaintiffs’ case. In light of the significance of the admissio ns, 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 defenda nt’s motion for summary judgment.

/s/ Karen M. Fort Hood

1 Despite there only being four i nquiries in the request for adm issions, the inquiries were combined with interrogatories, w hich were far more extensive.