The Illinois First District Appellate Court recently issued an opinion which has broad implications for the duties imposed upon parties responding to requests to admit under Illinois Supreme Court Rule 216. The decision is Oelze v. Score Sports Venture, LLC, ___ Ill. App. 3d ___ (1st Dist. No. 1-09-1476 March 30, 2010). A link to the opinion on the Illinois Courts official website is here: http://tinyurl.com/y4t8sub
Among the issues in the case is one which relates to Rule 216 requests to admit. The plaintiff submitted requests to have the defendant admit that her attached medical bills were reasonable, necessary and resultant from the underlying occurrence. Such a request to admit is valid under the holding of Szczeblewski v. Gossett, 342 Ill. App. 3d 344, 348, 795 N.E.2d 368, 371 (5th Dist. 2003). Although I still believe the 2003 Szczeblewski decision was incorrectly decided, because it requires a defendant to have expert knowledge, it is the law of Illinois and the requests to admit here were proper.
The defendant responded to each itemized request by neither denying nor admitting the requests and instead stating that, having “made reasonable inquiry and the information known or readily available within the Defendant’s control [being] insufficient to admit or deny,” and not being a physician or nurse, having no training in medical billing and practice rates or treatments described in plaintiff’s bills reasonable and necessary medical diagnosis, care or treatment,” she could not admit or deny the request to admit.
This responsive language completely tracked the Szczeblewski opinion as to the manner in which a defendant would have to respond to such requests to make it a valid response. However, in this 2010 appellate court opinion in Oelze, the Court ruled this response was insufficient because the defendant must also “explain why its resources are lacking to such an the extent that it cannot answer the requests.” The court felt the defendant had sufficient means to either admit or deny because it had already received plaintiff’s medical records and it had “access to its insurance company and the insurer’s databases of claims and necessary treatments and expenses, [so it] could make a pretty good guess at the reasonableness of the expenses and treatments claimed and contest those, if necessary.” Thus, these “boilerplate responses” were deemed by the court to be admissions of the requested information.
In my view, this is a very bad decision and makes little sense.
First, the earlier appellate court decision in Szczeblewski merely stated the following about the manner in which such requests to admit should be answered:
“To ensure that the laudable purpose of Rule 216 is accomplished, a party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party’s reasonable control. In this case that would include the defendant’s attorney and insurance company investigators or representatives.”
The defendant here in Oelze responded completely consistently, and in fact identically, with the earlier decision’s language. The 2010 appellate court decision, however, now adds on a further requirement found nowhere in Supreme Court Rule 216 that the defendant responding to the request to admit must now EXPLAIN its response. Rule 216(c) refers to responses as follows:
“Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either
(1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or
(2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.
If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission. If good faith requires that a party deny only a part, or requires qualification, of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder. Any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.”
Yes, the Rule requires the responder to set “forth in detail the reasons why he cannot truthfully admit or deny” the request, but it does not indicate the detail which is necessary. Certainly there is no case law in Illinois which identifies the detail necessary to provide an adequate basis to explain why the responder can neither admit nor deny. Here, the defendant already indicated its specific reasons for non-admission of denial by using the language approved of by the appellate court in Szczeblewski.
So, how detailed must the “explanation” be? Are responders to requests to admit going to be subject to deemed admissions on the basis they did not give enough detailed explanation when there are no standards to say what is enough detail to provide? Based on this brand new requirement of the detail of explanation required by the Rule, the appellate court deemed the responses as admissions, which even the court in Szczeblewski did not do. Instead, the Szczeblewski court remanded the issue back to the trial court for a ruling on whether the defendant would be permitted to amend the response. In another case, the appellate court even accepted the explanations for the non-denial based on the reasons provided not only in the response but also the information provided to the court at the time of the hearing on the motion to compel an answer. Favia v. Ford Motor Co., 381 Ill.App.3d 809, 886 N.E.2d 1182, 320 Ill.Dec. 113 (1st Dist. 2008).
Second, the appellate court in Oelze stuck its neck out to describe the defendant’s responses to these requests to admit as “boilerplate.” I question how a court can describe the responses as “boilerplate” when a prior appellate court (Szczeblewski) was the one to state the language would be appropriate.
Third, the Oelze court went out on another limb by suggesting, apparently without any evidence in the record, that the defendant had “access to its insurance company and the insurer’s databases of claims and necessary treatments and expenses….” In 25 years of practice, I have never heard of some type of casualty insurance company “database of claims and necessary treatments and expenses.” Maybe medical insurance companies have that kind of information available to them because they make decisions on necessary treatments and expenses every day, but casualty insurers do not. In any event, how can the appellate court take judicial notice of such a fact? Further, the facts of each case are significantly different, so how can an insurer’s “database” provide the basis for an admission?
The most significant problem with the Oelze decision, however, is its statement that information available to a defendant is such that it “could make a pretty good guess at the reasonableness of the expenses and treatments claimed.”
A “pretty good guess?”
So, now parties are expected to make judicial and evidentiary admissions based on “a pretty good guess?” Respectfully, I disagree. Rule 216 requests to admit should not be answered on whether the responding party has a “pretty good guess” about the answer. Prior case law disagrees with this decision as well. In a case in which the appellate court also deemed the defendant’s responses as admitted, the appellate court rejected the responder’s non-response only because the non-response was impossible to be correct. In that case, the trial court was found to have not committed error in deeming as admitted the defendant’s response to a request to admit which asked defendant to admit it owned the property where the accident occurred. The defendant’s response that it did not have sufficient information to respond was rejected by the appellate court because the defendant “must” have known whether it owned the property. Fritzsche v. Union Pacific RR Co., 303 Ill.App.3d 276, 707 N.E.2d 721, 236 Ill.Dec. 594 (5th Dist. 1998).
Without doubt, the defendant’s response in Oelze does not fall within the category of information which it “must” have known. Whether a person owns property is something which that person uniquely must know. However, the appropriateness of medical bills and treatment to another person are not the type of thing which a responding party “must” know.
Unfortunately, the Oelze opinion imposes a significant higher burden on parties responding to requests to admit. From now on, they must not only “know” whether the request to admit is true, they must have “a pretty good guess” about whether it is true.
No one’s asking, but I dissent.