State Trial Courts

FUMICO vs. the Estate of Miller

Edward Guza (Guza, Nesbitt &. Putzier), Bozeman, for FUMICO;

James McKenna (McKenna Law), Bozeman, for the Estate.

DISCOVERY: Amount of insurance subrogation deemed admitted under Rule 36(a)(3) for untimely re­sponse to RFAs ... J. Brown.

Lawrence Miller drove into Yellowstone Country Inn in West Yellowstone 8/7/11. Medical records indicate that he blacked out and died some time during the collision from artery disease. The hotel was insured by FUMICO. Because of Miller's lack of insurance, FUMICO paid for the damages he caused in the amount of $35,383.55, then filed a claim with the PR for subrogation. The PR denied it by pleading 7/12/12. FUMICO pro­pounded discovery requests 1/2/13, including RFAs that it paid $35,383.55 for damages caused by Miller for which it is entitled to subrogation. Although the Estate's re­sponses were due 2/4, it did not file them until 2/20. FUMICO pointed out the failure to timely respond in a letter to the Estate's counsel dated 2/ 11. The parties stipulated 4/ 16 that Miller was negligent and that FUMI­CO is entitled to damages caused by his negligence, and the sole remaining issue is the extent of damages. FUMI­CO requests summary judgment as to the amount, con­tending that because the Estate failed to timely respond to its RFAs it has automatically admitted that FUMICO's damages amount to $35,383.55, pursuant to Rule 36(a)(3). The Estate contends that the $18,750 difference between the parties' claimed damages warrants a trial on the merits, and that FUMICO did not suffer any preju­dice by the late discovery responses. 

Allowing for a 3 days for mailing, the Estate's re­sponses to RFAs were due 2/4/13. It did not request an extension. Instead, after being reminded by FUMICO's counsel that no responses had been timely provided, and thus were deemed admitted under 36(a)(3), it provided responses 2/20 -16 days late. The MSC has repeatedly enforced 36(a)(3) to deem matters admitted when no timely response is provided. In Easton (Mont. 1991) the plaintiff argued that there was a "mix-up in office procedure" to excuse his failure to timely respond and argued that "the law strongly favors disposition on the merits of the case and full litigation of all the issues." The MSC affirmed Judge McPhillips's summary judgment, stating that "filing a late response is not a matter of right, but lies within the trial court's discretion." (citing Garrett (Mont. 1990) and Moras/ (Mont. 1974)). In Morast the controlling factual issues were deemed admitted for failure to timely answer under Rule 36(a). It also stated that "admissions obtained by the use of Rule 36 may show that there is no genuine issue as to any material fact and justify the entry of a summary judgment under rule 56." (quoting Wright & Miller, Federal Practice & Procedure: Civil §2264. Spooner (Mont. 2000) affirmed summary judgment as to damages in a specific amount pursuant to Rule 36. 

verdict

Summary Judgment granted for Defense on Insurance Subrogation Claims

Pursuant to 36(a)(3), the RFAs are deemed admitted. There is no material fact as to the amount of damages incurred. Summary judgment for FUMICO awarding $35,383.55 damages against the Estate. Bench trial set for 4/ 21 is vacated.  

The Estate could have requested that its automatic admissions to the RFAs be withdrawn. Rule 36(b). It could have requested additional time to respond, from FUMICO's counsel or the Court. 36(a)(3). It did neither, even though FUMICO's counsel gave written notice that its responses were late and thus deemed admitted. 

Estate of Miller, Gallatin DP-11-102, 3/27 /14.