§ RULE 2.112 PLEADING SPECIAL MATTERS

RULE 2.112 PLEADING SPECIAL MATTERS

(A) Capacity; Legal Existence.

(1) Except to the extent required to show jurisdiction of a court, it is not necessary to allege

(a) the capacity of a party to sue,

(b) the authority of a party to sue or be sued in a representative capacity, or

(2) A party wishing to raise an issue about

(a) the legal existence of a party,

(b) the capacity of a party to sue or be sued, or

must do so by specific allegation, including supporting facts peculiarly within the pleader's knowledge.

(B) Fraud, Mistake, or Condition of Mind.

(1) In allegations of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.

(2) Malice, intent, knowledge, and other conditions of mind may be alleged generally.

(1) In pleading performance or occurrence of conditions precedent, it is sufficient to allege generally that all conditions precedent have been performed or have occurred.

(2) A denial of performance or occurrence must be made specifically and with particularity.

(D) Action on Policy of Insurance.

(1) In an action on a policy of insurance, it is sufficient to allege

(a) the execution, date, and amount of the policy,

(b) the premium paid or to be paid,

(d) the interest of the insured, and

(e) the loss.

(2) A defense of

(a) breach of condition, agreement, representation, or warranty of a policy of insurance or of an application for a policy; or

(b) failure to furnish proof of loss as required by the policy

must be stated specifically and with particularity.

(E) Action on Written Instrument.

(1) In an action on a written instrument, the execution of the instrument and the handwriting of the defendant are admitted unless the defendant specifically denies the execution or the handwriting and supports the denial with an affidavit filed with the answer. The court may, for good cause, extend the time for filing the affidavits.

(2) This subrule also applies to an action against an indorser and to a party against whom a counterclaim or a cross-claim on a written instrument is filed.

(F) Official Document or Act. In pleading an official document or official act, it is sufficient to allege that the document was issued or the act done in compliance with law.

(G) Judgment. A judgment or decision of a domestic or foreign court, a tribal court of a federally recognized Indian tribe, a judicial or quasi-judicial tribunal, or a board or officer, must be alleged with sufficient particularity to identify it; it is not necessary to state facts showing jurisdiction to render it.

(H) Statutes, Ordinances, or Charters. In pleading a statute, ordinance, or municipal charter, it is sufficient to identify it, without stating its substance, except as provided in subrule (M).

(I) Special Damages. When items of special damage are claimed, they must be specifically stated.

(J) Law of Other Jurisdictions; Notice in Pleadings. A party who intends to rely on or raise an issue concerning the law of

(1) a state other than Michigan,

(2) a United States territory,

(3) a foreign nation or unit thereof, or

(4) a federally recognized Indian tribe

must give notice of that intention either in his or her pleadings or in a written notice served by the close of discovery.

(K) Fault of Nonparties; Notice.

(1) Applicability. This subrule applies to actions based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death to which MCL 600.2957 and MCL 600.6304, as amended by 1995 PA 249, apply.

(2) Notice Requirement. Notwithstanding MCL 600.6304, the trier of fact shall not assess the fault of a nonparty unless notice has been given as provided in this subrule.

(3) Notice.

(a) A party against whom a claim is asserted may give notice of a claim that a nonparty is wholly or partially at fault. A notice filed by one party identifying a particular nonparty serves as notice by all parties as to that nonparty.

(b) The notice shall designate the nonparty and set forth the nonparty's name and last known address, or the best identification of the nonparty that is possible, together with a brief statement of the basis for believing the nonparty is at fault.

(c) The notice must be filed within 91 days after the party files its first responsive pleading. On motion, the court shall allow a later filing of the notice on a showing that the facts on which the notice is based were not and could not with reasonable diligence have been known to the moving party earlier, provided that the late filing of the notice does not result in unfair prejudice to the opposing party.

(4) Amendment Adding Party. A party served with a notice under this subrule may file an amended pleading stating a claim or claims against the nonparty within 91 days of service of the first notice identifying that nonparty. The court may permit later amendment as provided in MCR 2.118.

(L) Medical Malpractice Actions.

(1) In an action alleging medical malpractice filed on or after October 1, 1993, each party must file an affidavit as provided in MCL 600.2912dand600.2912e. Notice of filing the affidavit must be promptly served on the opposing party. If the opposing party has appeared in the action, the notice may be served in the manner provided by MCR 2.107. If the opposing party has not appeared, the notice must be served in the manner provided by MCR 2.105. Proof of service of the notice must be promptly filed with the court.

(2) In a medical malpractice action, unless the court allows a later challenge for good cause:

(a) all challenges to a notice of intent to sue must be made by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer or motion, and

(b) all challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer, must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.

(M) Headlee Amendment Actions. In an action alleging a violation of Const 1963, art 9, §§ 25-34, the factual basis for the alleged violation or a defense must be stated with particularity. In an action involving Const 1963, art 9, § 29, the plaintiff must state with particularity the type and extent of the harm and whether there has been a violation of either the first or second sentence of that section. In an action involving the second sentence of Const 1963, art 9, § 29, the plaintiff must state with particularity the activity or service involved. All statutes involved in the case must be identified, and copies of all ordinances and municipal charter provisions involved, and any available documentary evidence supportive of a claim or defense, must be attached to the pleading. The parties may supplement their pleadings with additional documentary evidence as it becomes available to them.

(N) A party whose cause of action is to collect a consumer debt as defined in the Michigan collection practices act (MCL 445.251[a] and [d]) must also include the following information in its complaint:

(1) the name of the creditor (as defined in MCL 445.251[e] and [f]), and

(2) the corresponding account number or identification number, or if none is available, information sufficient to identify the alleged debt, and

(3) the balance due to date.