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Daniels v. Esurance Property and Casualty Insurance Co.

United States District Court, E.D. Michigan, Southern Division

May 22, 2018

DEMITRIUS DANIELS, Plaintiff,
v.
ESURANCE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

          OPINION AND ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS (DOC. 21) AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 22)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Plaintiff Demitrius Daniels sued defendant Esurance Property and Casualty Insurance Company for payment of expenses arising out of an automobile accident on October 18, 2016. The matter is presently before the Court on Esurance's motion to dismiss, (Doc. 21), and motion for summary judgment, (Doc. 22). Oral argument was held on April 16, 2018. For the reasons stated below, Esurance's motion to dismiss is GRANTED IN PART and Esurance's motion for summary judgment is DENIED.

         I. Background

         Mr. Daniels was involved in an automobile accident on August 27, 2014. Mr. Daniels thereafter filed a claim with his insurer, Liberty Mutual, for benefits including attendant care and household replacement services.

         Mr. Daniels purchased an Esurance auto policy in 2016. Mr. Daniels was involved in another automobile accident on October 18, 2016 and submitted a PIP claim with Esurance. (Doc. 1-2 at PageID 11). Mr. Daniels filed this lawsuit in Wayne County Circuit Court on December 19, 2016. (Doc. 1-2). Esurance removed the lawsuit on January 23, 2017. (Doc. 1). On March 9, 2017, the Court entered a scheduling order with a discovery cut-off date of September 29, 2017. (Doc. 6 at PageID 50).

         Mr. Daniels claimed that his cousin, Ms. Senitra Daniels provided household replacement services and attendant care following the accident. (Doc. 22-20; 24-4). Esurance sought to depose Ms. Senitra Daniels. The parties initially scheduled Ms. Daniels' deposition for May 30, 2017. (Doc. 21-20 at PageID 570). Ms. Daniels' appeared on May 30, 2017, but the parties adjourned her deposition due to concerns about Mr. Daniels' mental health. Ms. Daniels' deposition was rescheduled for June 30, 2017. (Doc. 21-21 at PageID 573). Mr. Daniels' deposition was scheduled for the same date. The parties deposed Mr. Daniels for several hours and, near the end of the business day, agreed to adjourn Ms. Daniels' deposition. The parties stipulated to extend discovery on September 7, 2017. (Doc. 14). Ms. Daniels' deposition was rescheduled for September 19, 2017. (Doc. 21-21 at PageID 575). Mr. Daniels' counsel acknowledges that he adjourned this date. (Doc. 26 at PageID 1464; 1467). The parties rescheduled Ms. Daniels' deposition for September 21, 2017. (Doc. 21-21 at PageID 577). Shortly before that date, Esurance messaged Mr. Daniels' attorney to confirm the deposition. (Doc. 21-22 at PageID 584). Mr. Daniels' attorney could not confirm Ms. Daniels' presence and the parties canceled Ms. Daniels' fourth deposition date. (Doc. 21-22 at PageID 580).

         Esurance filed a motion to compel Ms. Daniels to appear for a deposition on October 18, 2017. (Doc. 15). Mr. Daniels did not file a response. Magistrate Judge David R. Grand granted Esurance's request in part on October 24, 2017, stating:

Counsel for Plaintiff shall obtain and provide at least two dates for the taking of Ms. Daniels' deposition, and such deposition will be scheduled to take place on or before Friday, November 17, 2017. Ms. Daniels' failure to appear for her deposition as ordered herein may result in an order precluding Plaintiff from offering her testimony at trial and/or striking Plaintiff's claims for household replacement services and attendant care provided by Ms. Daniels.

         (Doc. 17 at PageID 134-35). Mr. Daniels' never produced Ms. Daniels for a deposition.

         Esurance conducted additional discovery, including hiring an investigator to surveil Mr. Daniels. The investigator followed Mr. Daniels in early February 2017 and summarized his observations in a report dated February 17, 2017. (Doc. 22-23 at PageID 981-1003). The investigator conducted a second round of surveillance in mid-April 2017 and prepared a report dated April 28, 2017. (Doc. 22-23 at PageID 1004-31).

         II. Legal Standard

         A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 37 and 41

         Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), if a party or witness designated under Federal Rule of Civil Procedure 30(b)(6) fails to obey an order to provide or permit discovery, the court may issue orders:

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing ...

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