20221229_C358796_52_358796.Opn.Pdf ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LISA BRADLEY, FOR PUBLICATION
December 29, 2022
Plaintiff-Appellant, 9:10 a.m.
v No. 358796
Wayne Circuit Court
PROGRESSIVE MARATHON INSURANCE LC No. 20-006927-NF
COMPANY, and NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY,
Defendants-Appellees.
Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.
PER CURIAM.
Plaintiff, through appellate counsel, appeals as of right the trial court’s order dismissing
this case on the basis of a failure to timely file a motion to substitute for the deceased plaintiff a
personal representative of plaintiff’s estate. We affirm.
I. FACTS
Lisa Bradley filed this action for no-fault personal protection benefits against defendants,
Progressive Marathon Insurance Company, and Nationwide Mutual Fire Insurance Company, on
June 1, 2020, alleging that she was owed benefits for injuries sustained in a motor vehicle accident
that occurred on June 14, 2019.1 Each defendant filed affirmative defenses arguing, among other
things, that the other was the higher priority insurer obligated to pay no-fault benefits.
Progressive moved for summary disposition on September 9, 2020, seeking dismissal on
the basis of its argument that Nationwide was the higher priority insurer obligated to pay any
1
For ease of discussion, we refer to the party litigating this action as “plaintiff” and the injured
party herself as “Bradley.”
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benefits due. This motion and the defendants’ other motions for summary disposition pursuant to
MCR 2.116(C)(10) remained pending and undecided when the case was dismissed.
On March 1, 2021, plaintiff filed a Suggestion of Death, giving notice that Bradley had
died on February 11, 2021. The notice included the statement that a personal representative would
be appointed for her estate. On April 13, 2021, the trial court entered an order continuing the
hearing on defendants’ motions until May 26, 2021, “to allow a Personal Representative to be
appointed for [Bradley].”
On July 1, 2021, Progressive filed a motion to dismiss under MCR 2.202(A)(1)(b) for
plaintiff’s failure to file a motion to substitute a personal representative for Bradley within 91 days
after the Suggestion of Death filed on March 1, 2021. The motion alleged prejudice as follows:
Defendant Progressive has been, and will continue to be, prejudiced by Plaintiffs
failure to file the necessary statement and motion as Defendant cannot participate
in meaningful litigation and/or settlement negotiations with Plaintiff’s counsel as
they have no party to represent in this matter given Ms. Bradley’s death and their
lack of substitution of her estate.
Progressive also argued that plaintiff bore the burden of showing good cause for the failure
to file a motion to substitute within the 91-day period, arguing that dismissal was appropriate where
plaintiff offered no excuse for the delay.
On July 8, 2021, Nationwide filed a concurrence, noting that defendants’ motions had been
adjourned twice for lack of substitution of a personal representative for Bradley. In support,
Nationwide submitted evidence of an online case search of the Wayne Probate Court records
showing that an estate for Bradley had not yet been opened in probate court.2
On July 26, 2021, plaintiff filed an answer to the motion to dismiss, noting that the estate
had been opened and arguing that dismissal was not appropriate where “the estate is simply
awaiting a hearing date with the court so that the Letters of Authority can be issued.” The answer
noted that Bradley’s family had retained an attorney to open an estate and asserted that the family
had taken all appropriate steps to do so. Plaintiff did not offer when the attorney was retained or
otherwise explain the delay in opening the estate.
The motion to dismiss initially was noticed for hearing on July 28, 2021, but subsequently
re-noticed for August 19, 2021, and again for September 3, 2021. In the meantime, Nationwide’s
motion for summary disposition pursuant to MCR 2.116(C)(10) was re-noticed for hearing on
September 9, 2021.
On September 3, 2021, the trial court heard a very brief argument from counsel for
Nationwide, and briefer argument in concurrence from Progressive’s counsel. Plaintiff did not
2
Plaintiff explains on appeal that a personal representative was appointed for the estate on October
6, 2021.
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appear. Plaintiff’s brief on appeal indicates that counsel did not appear because he mistakenly
thought the matter was to be heard on September 9, 2021.
The trial court then gave the following reasons for granting the motion to dismiss:
Obviously it’s been more than ninety-one (91) days since Ms. Bradley passed away,
and since the Suggestion of Death was filed with the court.
Plaintiff’s counsel had failed to file motion to substitute the estate in Ms. Bradley’s
place and instead of this litigation.
There’s no doubt, it is clear that under MCR 2.202(A)(l)(b), the action must be
dismissed as to the deceased party unless motion for substitution is made within
ninety-one (91) days after the filing and service of the statement of fact of the death.
Defendant Progressive Marathon Insurance Company and National Mutual Fire
Insurance Company has been and will continue to be prejudiced for the failure of
Plaintiffs to file necessary statement and motion.
Defendant cannot participate in meaningful litigation and/or settlement
negotiations with Plaintiff’s counsel, as they have no party to represent them in this
matter given that Ms. Bradley’s death and the lack of substitution in the estate.
And here’s the thing. It has come to the attention that there is probate hearing on
the 29th of September 2021 at 10:00 a.m. before the Honorable Judge Keith.
But again, the court rules are clear. And they were actually told many times over
that they needed to get the ball rolling within the time period, and they failed to do
so.
And since Plaintiff failed to file the appropriate motion substituting the parties
pursuant to MCR 2.202(A) within the ninety-one (91) day period, her claim in this
matter must be dismissed.
And so, the Court will grant Progressive Marathon Insurance Company’s motion
for dismissal, dismissing Plaintiff Lisa Bradley’s claim in this matter pursuant to
MCR. 2.202. So Ordered.
The final order of dismissal was entered on September 14, 2021, and plaintiff filed this
claim of appeal on October 5, 2021.
II. STANDARD OF REVIEW
“A trial court’s decision to dismiss an action is reviewed for an abuse of discretion.”
Donkers v Kavach, 277 Mich App 366, 368; 745 NW2d 154 (2007). “An abuse of discretion
occurs when the decision results in an outcome falling outside the range of principled outcomes.”
Jilek v Stockson, 297 Mich App 663, 665; 825 NW2d 358 (2012) (quotation marks and citation
omitted). “A trial court necessarily abuses its discretion when it makes an error of law.” Pirgu v
United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016). Finally, we “review de novo
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the interpretation of court rules . . . .” Vyletel-Rivard v Rivard, 286 Mich App 13, 20; 777 NW2d
722 (2009).
III. DISCUSSION
On appeal, plaintiff argues that “[g]iven the lack of any evidence of real prejudice to the
Defendants in this case,” the trial court abused its discretion by dismissing the case. Defendants,
on the other hand, argue that “[t]he plain language of MCR 2.202(A)(1)(b) made it Plaintiff’s
burden to show the absence of prejudice, and Plaintiff made no attempt to carry that burden below.”
Therefore, defendants argue, the trial court necessarily did not abuse its discretion by dismissing
the case.3 For the reasons set forth, we need not reach the question whether plaintiff showed the
absence of prejudice for the purposes of MCR 2.202(A)(1)(b), because we conclude that even if
plaintiff did show the absence of prejudice, the trial court still did not abuse its discretion by
dismissing the case. Specifically, we conclude that a finding of prejudice is not necessary for the
proper exercise of the discretion to dismiss a plaintiff’s action since the applicable court rule
mandates dismissal.
MCR 2.202(A) provides as follows:
(1) If a party dies and the claim is not thereby extinguished, the court may
order substitution of the proper parties.
(a) A motion for substitution may be made by a party, or by the successor
or representative of the deceased party.
(b) Unless a motion for substitution is made within 91 days after filing and
service of a statement of the fact of the death, the action must be dismissed as to
the deceased party, unless the party seeking substitution shows that there would be
no prejudice to any other party from allowing later substitution.
(c) Service of the statement or motion must be made on the parties as
provided in MCR 2.107, and on persons not parties as provided in MCR 2.105.
(2) If one or more of the plaintiffs or one or more of the defendants in an
action dies, and the right sought to be enforced survives only to the surviving
plaintiffs or only against the surviving defendants, the action does not abate. A
party or attorney who learns that a party has died must promptly file a notice of the
death.
3
Defendants also argue that this Court lacks jurisdiction over this appeal. We disagree. MCL
600.2921 provides that an action for no-fault benefits survives the plaintiff’s death, and MCR
2.202(A) implicitly recognizes that the action continues until the matter of the substitution of a
party for the deceased plaintiff is resolved—and this necessarily includes an appeal from the denial
of a motion to substitute, the appeal being a continuation of the action.
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There is a dearth of published caselaw discussing MCR 2.202(A)(1)(b). In Mather
Investors, LLC v Larson, 271 Mich App 254; 720 NW2d 575 (2006), the deceased party was one
of two defendants. Id. at 255. The case against the deceased defendant was dismissed because
she died before she was served with the complaint. Id. The other defendant moved for summary
disposition, arguing that the deceased defendant was a necessary party, without whom the case
could not properly proceed. Id. The trial court allowed the plaintiff to substitute the decedent’s
estate if it could show the other defendant was not prejudiced, but ultimately found that the
defendant was prejudiced and dismissed the case. Id. This Court affirmed on appeal, stating as
follows:
Because Maddock, the transferor, died without extinguishing the claim,
substitution of her estate was properly within the trial court’s discretion under the
court rules. . . . Because the motion for substitution was untimely under MCR
2.202(A)(1)(b), plaintiff was required to demonstrate that there would be no
prejudice to defendant by allowing that substitution. . . . The trial court found
defendant prejudiced by the delay, during which time the property has been tied up
by a lis pendens notice and memories of witnesses . . . have faded . . . . We find no
clear error in these findings, nor has plaintiff refuted them. [Id. at 260 (quotation
marks and citations omitted).]
This holding does not address whether a finding of prejudice, or lack thereof, is necessary
here to dismiss a plaintiff’s action. It holds that a plaintiff is required to show a lack of prejudice
to have an untimely motion to substitute granted, but it does not answer the question whether the
absence of prejudice, or an erroneous finding of prejudice, necessarily renders a court’s dismissal
over the lack of a timely motion to substitute constitutes an abuse of discretion. To answer that,
we must look to MCR 2.202(A)(1)(b) which requires dismissal unless there is a showing of no
prejudice. The rule does not require that an untimely motion to substitute be granted upon a
showing of a lack of prejudice.
MCR 2.202(A)(1) provides that “[i]f a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties.” Similarly, MCR 2.202(D) provides that
“[s]ubstitution of parties under this rule may be ordered by the court either before or after judgment
or by the Court of Appeals or Supreme Court pending appeal.” In other words, both subrules (A)
and (D) grant a court wide discretion to substitute a party. MCR 2.202(A)(1)(b), however, limits
that discretion by providing that the action “must be dismissed” if a motion for substitution is not
“made within 91 days after filing and service of a statement of the fact of the death.” In our view,
the more logical interpretation of the qualifying language that follows the rule’s mandate “unless
the party seeking substitution shows that there would be no prejudice to any other party from
allowing later substitution” is that the mandatory limitation on the trial court’s discretion no longer
applies if, as is arguably the case before us, the plaintiff makes a showing as to a lack of prejudice.
In other words, if the party seeking substitution shows the absence of prejudice despite filing a
motion for substitution beyond the 91-day period, the mandatory requirement that the trial court
dismiss the case is extinguished. In such a situation, the general rule set forth in MCR 2.202(A)
and (D) governs the trial court’s discretion.
Thus, if a motion for substitution is timely filed within 91 days, the trial court “may order
substitution of the proper parties.” MCR 2.202(A)(1). Under this rule, the trial court has the
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discretion to order substitution if the motion is timely filed. Conversely, if the argument offered
by plaintiff is correct, then the trial court is required to order substitution on the basis of an
untimely motion if the moving party shows the absence of prejudice. If so, the trial court would
have less discretion when considering an untimely motion than it would when considering a timely
motion. We cannot find another instance under our court rules in which a dilatory party would be
rewarded in such a manner as would take place if we adopted plaintiff’s argument.4
Further, while “staff comments to the court rules are not binding authority, . . . they can be
persuasive in understanding the proper scope or interpretation of a rule or its terms.” People v
Comer, 500 Mich 278, 298 n 48; 901 NW2d 553 (2017). The staff comment addressing the 1985
adoption of MCR 2.202 states as follows: “Subrule (A)(1)(b) sets a 91-day time limit for moving
to substitute following the death of a party. This makes the rule consistent with FR Civ P 25.
However, later substitution is allowed if the party seeking it shows that no other party will be
prejudiced because of the late motion.” (MCR 2.202, 1985 Staff Comment) (emphasis added). 5
The word “allowed” suggests that untimely substitution is permitted but not required. Thus, the
staff comment reinforces our conclusion regarding the mandatory language contained in the rule.
In this case, it seems clear the failure of plaintiff to take timely action to open an estate
weighed heavily in the trial court’s decision to dismiss. In particular, despite the fact that on April
13, 2021, the trial court entered an order continuing the hearing on defendants’ motions until May
26, 2021, to allow a personal representative to be appointed, as of July 8, 2021, plaintiff had still
failed to open a probate case. On balance, giving deference to the trial court’s superior knowledge
of the case, we cannot conclude that the decision to dismiss fell outside the range of principled
outcomes.
IV. CONCLUSION
MCR 2.202(A)(1)(b) does not require that the trial court refuse to dismiss the case if the
plaintiff has showed no prejudice. Instead, when the plaintiff has showed no prejudice, the trial
4
We recognize, of course, that when a statement of the fact of death is timely filed and served,
and the motion for substitution is made within 91 days after that filing and serving, it would be
quite difficult for a trial court to justify its discretion refusing to order substitution. However, if
the statement of the fact of death is not timely filed and served, the trial court may be justified in
exercising its discretion to refuse to order substitution even if the motion itself is filed within 91
days after the filing and serving of the statement of the fact of death. The Advisory Committee
Notes to Fed R Civ P 25—the federal analogue to MCR 2.202—explain as follows: “A motion to
substitute made within the prescribed time will ordinarily be granted, but under the permissive
language of the first sentence of the amended rule (‘the court may order’) it may be denied by the
court in the exercise of a sound discretion if made long after the death--as can occur if the
suggestion of death is not made or is delayed--and circumstances have arisen rendering it unfair to
allow substitution.” (Advisory Committee Notes to Fed R Civ P 25).
5
Fed R Civ P 25(a)(1) provides, in relevant part, that “[i]f the motion [for substitution] is not made
within 90 days after service of a statement noting the death, the action by or against the decedent
must be dismissed.”
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court retains the discretion to either dismiss or retain the case. In the matter before us, the trial
court did not abuse its discretion by dismissing the case. Therefore, we affirm.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Michael J. Riordan
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