On March 8, 2020, Mr. Gueye and Ms. Hood were involved in a motor vehicle accident. Mr. Gueye had PIP coverage with State Farm and filed a claim for PIP benefits, as well as uninsured/underinsured motorist (“UM/UIM”) benefits. Mr. Gueye failed to appear for an IME scheduled for September 16, 2020. State Farm scheduled a second IME for October 28, 2020, and an EUO for October 6, 2020. On September 24, 2020, Mr. Gueye’s counsel advised that Mr. Gueye would be out of the country and asked that the EUO take place via zoom.
On October 1, 2020, State Farm formally denied Mr. Gueye’s claims for failure to attend the September IME but attempted to schedule an EUO for November 10, 2020. Mr. Gueye’s counsel stated they would be filing suit very soon and Mr. Gueye could be deposed instead. Mr. Gueye then waited nearly four months before filing a Summons and Complaint. The Complaint sought payment of outstanding no-fault PIP benefits and UM/UIM benefits.
State Farm filed a motion for summary disposition seeking dismissal of all claims. State Farm alleged that Mr. Gueye was required to attend the EUO and IME pursuant to its policy, and his failure to do so precluded him from recovering UM/UIM benefits. State Farm also alleged that Mr. Gueye’s failure to attend the IME justified dismissal of the PIP claims pursuant to the No-Fault Act.
In response, Mr. Gueye argued that State Farm waived the EUO requirement, and that the request for the EUO was unreasonable because State Farm would not accommodate Mr. Gueye’s travel. Regarding the UM/UIM benefits, he argued that State Farm was the first to breach the insurance contract and thus Mr. Gueye was no longer required to perform the policy requirements. Regarding the PIP benefits, he argued that dismissal based on one missed IME was unjust.
The trial court granted summary disposition in favor of State Farm and dismissed all of Mr. Gueye’s claims against State Farm. Mr. Gueye then appealed. In a published decision, Gueye v State Farm Mutual Auto Ins Co, et al, the Court of Appeals affirmed the trial court’s decision regarding the UM/UIM claims. The Court found that an insurance provision requiring attendance at an EUO before an insured can file a lawsuit for UM/UIM benefits is generally enforceable. Further, an insured who, without cause refuses to submit to an EUO “should be” precluded from coverage. The Court reasoned that the terms of the insurance contract were unambiguous and there was no dispute that that Mr. Gueye did not show for the IME or the EUO. Therefore, Mr. Gueye did not perform the necessary conditions precedent to claim UM/UIM benefits. The Court remanded those claims to the trial court for a determination whether the dismissal was with or without prejudice, however.
Regarding the PIP claims, the Court noted that attendance at an EUO or IME is not mandatory under the No-Fault Act. The Court observed that the trial court dismissed the PIP count for failure to attend the IME under MCR 2.116 but that rule is not a rule of sanction. Rather, dismissal of a claim for failure to comply with the statutory IME requirement should be viewed through the traditional analysis for dismissal as a discovery sanction. Relying upon the analysis of Drew v Nationwide Mut Fire Ins Co, (Unpub, COA No. 358546, 8/18/22), the Court found a trial court must place its reasoning and consideration of alternative sanctions on the record, and further found that failure to attend a pre-suit IME should be treated the same as a failure to attend an IME during litigation/discovery.
The Court stated that before dismissing a no-fault claim under MCL 500.3152, the trial court should “carefully evaluate all available options on the record and conclude that the sanction of dismissal is just and proper.” Specifically, the Court directed that on remand, the trial court should consider the factors laid out in Vicencio v Ramirez, 211 Mich App 501, 536 NW2d 280 (1995), to determine whether the sanction of dismissal is appropriate in this case. The Court noted that State Farm never filed a motion to compel an IME so at least one of the Vicencio factors was not considered.
For reference and convenience, the non-exhaustive list of Vicencio factors is as follows:
1. Whether the violation was willful or accidental
2. The party’s history of refusing to comply with previous court orders
3. The prejudice to the opposing party
4. Whether there exists a history of deliberate delay
5. The degree of compliance with parts of the court’s orders
6. Attempts to cure the defect
7. Whether a less sanction would better serve the interests of justice
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com
