United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART DEFENDANT'S
MOTION TO DISMISS (DOC. 21) AND DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DOC. 22)
CARAM STEEH UNITED STATES DISTRICT JUDGE
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.
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.
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
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).
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.
17 at PageID 134-35). Mr. Daniels' never produced Ms.
Daniels for a deposition.
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).
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
37 and 41
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