If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DWANITA MCDADE,

Plaintiff-Appellant,

UNPUBLISHED

July 18, 2024

v No. 366578

Wayne Circuit Court

PROGRESSIVE INSURANCE COMPANY and 

PROGRESSIVE DIRECT INSURANCE 

COMPANY,

Defendants,

and

PROGRESSIVE UNIVERSAL INSURANCE 

COMPANY,

Defendant-Appellee.

LC No. 18-004003-NF

Before: LETICA, P.J., and BOONSTRA and MARIANI, JJ.

PER CURIAM.

In this first-party no-fault action, plaintiff appeals by right the circuit court’s order granting 

summary disposition under MCR 2.116(C)(10) in favor of defendant Progressive Universal 

Insurance Company.

1

 We affirm.

 

1 The other defendants are not involved in this appeal.
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I. BACKGROUND

The factual background was summarized by this Court in McDade v Progressive Ins Co, 

unpublished per curiam opinion of the Court of Appeals, issued December 26, 2019 (Docket 

No. 345179) (“McDade I”), as follows:

Plaintiff, an Illinois resident, was injured in a motor vehicle accident in 

Michigan. She made a claim with her Illinois auto insurer for no-fault benefits. 

Her insurer did not provide the benefits nor issue a denial. After several months, 

therefore, she sued [defendant] for no-fault benefits . . . . Her complaint alleged 

that she owned a vehicle insured by . . . defendant and that she was entitled to 

Michigan no-fault benefits pursuant to the policy. In response to these (and 

virtually all other) allegations in the complaint, defendant answered that it “lacks 

knowledge or information sufficient to form a belief as to the truth of the 

allegation.”

Along with its answer defendant served requests for admission on plaintiff 

seeking information regarding the extent of plaintiff’s [injuries]. The request for 

admissions did not seek admissions regarding the policy or whether defendant is 

responsible to pay Michigan personal protection insurance (PIP) benefits under its 

policy.

One month after filing its answers and affirmative defenses, defendant filed 

a motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim) 

asserting that it is not certified in Michigan under MCL 500.3163 and so has no 

duty to pay PIP benefits to plaintiff. Plaintiff argued . . . that the defense on which 

the motion relied, i.e., non-certification in Michigan, had been waived because it 

had not been set forth in defendant’s answer or affirmative defenses[.] [McDade I, 

unpub op at 1-2.]

The circuit court agreed with defendant and granted the motion. Id. at 2. Plaintiff appealed that 

decision to this Court, arguing that defendant had waived its noncertification defense by failing to 

plead it in its affirmative defenses. Id.

This Court agreed and reversed the circuit court’s decision because defendant had not 

adequately pleaded its noncertification defense. McDade I, unpub op at 2-3. This Court further 

directed that defendant, “in order to bring a motion based on this defense, . . . must seek to amend 

its defenses and, if granted leave to do so, [must] bring a motion under MCR 2.116(C)(10) since a 

dismissal based on this defense requires that the court determine whether there is a factual 

question.” Id. at 3.

Instead of moving to amend its affirmative defenses on remand, defendant instead filed an 

application for leave to appeal with the Michigan Supreme Court, which was eventually denied in 

May 2020. McDade v Progressive Ins Co, 505 Mich 1085; 943 NW2d 137 (2020). Thereafter, 

no action occurred in the case for nearly two years until the circuit court sua sponte ordered the 

parties to appear at a hearing in March 2022.
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Before the hearing, defendant moved for leave to amend its affirmative defenses. The 

circuit court granted defendant’s motion, finding that neither party was at fault for the delay and

that plaintiff had failed to establish prejudice. Defendant then filed its amended affirmative 

defenses, specifically pleading that plaintiff was not eligible for PIP benefits under its policy 

because defendant had not filed a certification required by MCL 500.3113 and MCL 500.3163.

Plaintiff filed an interlocutory application from the circuit court’s order granting 

defendant’s motion to amend its affirmative defenses in this Court, which was denied. McDade v 

Progressive Ins Co, unpublished order of the Court of Appeals, entered November 10, 2022 

(Docket No. 361814). Plaintiff appealed to our Supreme Court, which also denied interlocutory 

review. McDade v Progressive Ins Co, 511 Mich 872; 984 NW2d 201 (2023).

Defendant then moved for summary disposition under MCR 2.116(C)(10) based on its

noncertification defense. The circuit court granted defendant’s motion.

II. STANDARD OF REVIEW

We review de novo a circuit court’s decision on a motion for summary disposition. Maiden 

v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “Summary disposition is appropriate 

under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving 

party is entitled to judgment as a matter of law.” Mr Sunshine v Delta College Bd of Trustees, 343 

Mich App 597, 601-602; 997 NW2d 755 (2022) (quotation marks and citation omitted).

On appeal, however, plaintiff challenges the circuit court’s decision granting defendant 

leave to amend its affirmative defenses. “This Court reviews grants and denials of motions for 

leave to amend pleadings for an abuse of discretion.” Jenks v Brown, 219 Mich App 415, 420; 

557 NW2d 114 (1996). “An abuse of discretion occurs when the trial court’s decision falls outside 

the range of reasonable and principled outcomes, or when the trial court makes an error of law.” 

VHS of Mich, Inc v State Farm Mut Auto Ins Co, 337 Mich App 360, 372-373; 976 NW2d 109 

(2021).

III. ANALYSIS

Plaintiff asserts that the circuit court abused its discretion by granting defendant leave to 

amend its affirmative defenses nearly four years after defendant first learned of its failure to 

properly plead its noncertification defense. According to plaintiff, this delay caused her to suffer 

prejudice. We disagree.

Leave to amend “shall be freely given when justice so requires.” MCR 2.118(A)(2). 

Generally, amendment is a matter of right. VHS of Mich, Inc, 337 Mich App at 373. “Indeed, 

MCR 2.118(C)(1) provides that amendments to conform to the evidence ‘may be made on motion 

of a party at any time, even after judgment,’ and MCR 2.111(F)(3) confirms that ‘[a]ffirmative 

defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in 

accordance with MCR 2.118.’ ” VHS of Mich, Inc, 337 Mich App at 374.

Ordinarily, then, a motion to amend should be granted, “and should be denied only for the 

following particularized reasons[.]” Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997). 

These particularized reasons include “[1] undue delay, [2] bad faith or dilatory motive on the part 
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of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, 

[4] undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] 

futility . . . .” Id. (quotation marks and citation omitted). “[D]elay alone is not a sufficient basis 

for refusing an amendment.” Id. at 661. Instead, a circuit court “must also find that the delay was 

the result of bad faith, or the opposing party suffered prejudice.” VHS of Mich, Inc, 337 Mich App 

at 374. Further, within the meaning of MCR 2.118(C)(2), prejudice “does not mean the opposing 

party might lose on the merits or might incur some additional costs; rather, it means the opposing 

party would suffer an inability to respond that the party would not otherwise have suffered if the 

affirmative defense had been validly raised earlier.” Glasker-Davis v Auvenshine, 333 Mich App 

222, 231; 964 NW2d 809 (2020).

Defendant’s nearly four-year delay in moving to amend an affirmative defense—the time 

between defendant learning it had failed to properly plead its defense at the initial summary 

disposition stage in July 2018 and moving to amend in March 2022—is a long delay. Plaintiff on 

appeal argues that this delay is “astonishing” and suggests that defendant willfully disregarded the 

court rules and hid its defense. Yet, absent from the record are any facts tending to show that 

defendant acted with any type of dilatory motive or bad faith. Indeed, plaintiff conveniently omits 

the procedural facts that at least half this time was devoted to appellate litigation on the issue of 

whether the noncertification defense was an affirmative defense subject to MCR 2.111(F)(2). 

While this Court in McDade I directed defendant to amend its affirmative defenses on remand, 

defendant opted to appeal McDade I to the Supreme Court instead. This litigation strategy was 

within its rights.

After the appellate litigation had concluded, the register of actions reflects that during the 

remaining time (approximately two years), neither party took any action on the case beyond 

defense counsel entering appearances. In fact, the circuit court ascribed the lack of activity on the 

case to itself. The court explained that it had not received notice of the Supreme Court’s denial of 

defendant’s interlocutory application for leave to appeal for unknown reasons, opining that may 

have been due to the COVID-19 pandemic. Regardless, the court observed that the onus was on 

it to revive the case after leave was denied. And, although either party could have acted to move 

the case forward, an undue motive could not be imputed to defendant on the basis of the lack of 

activity alone. Under these circumstances, there is no indication that defendant’s delay in 

amending its affirmative defenses was somehow undue or nefarious and such delay, alone, was 

not sufficient to deny its motion for leave to amend.2 See Weymers, 454 Mich at 661.

Notwithstanding the lack of any undue delay, plaintiff argues that the four-year delay 

caused her to suffer prejudice. According to plaintiff, had defendant promptly asserted its 

noncertification defense, plaintiff would have timely made claims for other coverage either 

through the Michigan Assigned Claims Plan or her own health insurance carrier. Because 

 

2 The parties dispute to whom the delay should be attributed. Defendant points out that plaintiff 

failed to “prosecut[e]” her case and that it could have reasonably assumed plaintiff had abandoned 

the matter. In our view, blame is immaterial because no bad motive can be inferred from either 

party’s conduct.
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defendant filed its affirmative defense more than four years after the accident, by plaintiff’s logic, 

she lost the ability to recover for injuries from these other avenues. Plaintiff, however, misses that 

she could have timely filed these claims regardless of whether and when defendant raised its 

defense of nonliability for PIP benefits because of lack of certification. In other words, plaintiff 

did not suffer the loss of these claims that she would have otherwise had if defendant filed the 

affirmative defense earlier. See Glasker-Davis, 333 Mich App at 231. Rather, plaintiff could have 

pursued these sources of coverage and she simply did not.3

In sum, we conclude that the circuit court did not abuse its discretion when it granted

defendant’s motion for leave to amend its affirmative defenses. And, because no genuine issue of 

material fact exists that defendant is not certified in Michigan, defendant is not liable to provide 

plaintiff with PIP benefits. Accordingly, the circuit court did not err by granting summary 

disposition in defendant’s favor under MCR 2.116(C)(10).

Affirmed.

/s/ Anica Letica

/s/ Mark T. Boonstra

/s/ Philip P. Mariani

 

3 Plaintiff relies on Baker v Marshall, 323 Mich App 590; 919 NW2d 407 (2018), in which this 

Court reversed a circuit court’s grant of summary disposition because the lower court granted 

judgment premised on the failure to plead an affirmative defense. On appeal, this Court 

determined that because the defense was never pleaded, the defendant had waived it and summary 

disposition was improper. Id. Baker is not helpful to plaintiff because its procedural posture is 

distinguishable. This matter, unlike Baker, involves the question whether the circuit court abused 

its discretion by granting a motion for leave to amend.