CINCINNATI INSURANCE COMPANY V JOSEPH D WEAVER
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STATE OF MICHIGAN
COURT OF APPEALS
CINCINNATI INSURANCE COMPANY,
UNPUBLISHED
February 15, 2011
Plaintiff-Appellant,
v
No. 294814
Lenawee Circuit Court
LC No. 09-003214-NI
JOSEPH D. WEAVER,
Defendant-Appellee,
and
PIONEER STATE MUTUAL INSURANCE
COMPANY,
Defendant.
Before: JANSEN, P.J., and OWENS and SHAPIRO, JJ.
JANSEN P.J. (dissenting).
I respectfully dissent from the majority’s determination that the trial court erred by
granting summary disposition in favor of defendant Weaver. Although plaintiff included
excerpted portions of the state trooper’s deposition testimony in its brief in response to
defendant’s motion for summary disposition, this was not sufficient to create a genuine issue of
material fact concerning the causation of the accident. The transcripts of the deposition
testimony, themselves, were never submitted to the trial court. Under MCR 2.116(G)(5), the
trial court is required to consider only the affidavits, depositions, admissions, and other
documentary evidence “then filed in the action or submitted by the parties.” However, it is
beyond dispute that the transcripts of the deposition relied on by plaintiff in this case were
neither “filed in the action” nor “submitted by the parties.” Thus, there was necessarily no
deposition for the trial court to consider within the meaning of MCR 2.116(G)(5). Moreover,
plaintiff’s inclusion of excerpted portions of the deposition testimony in its brief did not serve as
a substitute for the actual deposition transcripts. Reeves v Kmart Corp, 229 Mich App 466, 481
n 7; 582 NW2d 841 (1998). The trial court correctly determined that plaintiff had failed to
present sufficient documentary evidence to create a genuine issue of material fact concerning the
causation of the accident. Accordingly, I would affirm.
/s/ Kathleen Jansen
-1-
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