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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UNPUBLISHED 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: 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 

 

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 Despite there only being four inquiries in the request for admissions, the inquiries were 

combined with interrogatories, which were far more extensive.