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Brandt v. John S. Tilley Ladders Co.

OPINION FILED JUNE 30, 1986.

BOBBYDICK BRANDT, PLAINTIFF,

v.

JOHN S. TILLEY LADDERS COMPANY, DEFENDANT-APPELLEE (AETNA CASUALTY AND SURETY COMPANY, INTERVENOR-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Alan Morrill, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Intervenor Aetna Casualty and Surety Company (Aetna), the insurer of plaintiff's employer, appeals the dismissal with prejudice of plaintiff's action for his failure to comply with discovery. At issue are whether: (1) the dismissal was an abuse of discretion; and (2) Aetna, as an intervenor, may bring this appeal. We answer both questions in the affirmative.

Plaintiff's complaint filed on July 22, 1983, alleged that he was injured while using one of defendant's products in the course of his employment as a laborer. Plaintiff was notified twice that his deposition was to be taken, the first having been set in Chicago on November 3, 1983, after which plaintiff moved to Texas, and the second on March 22, 1985. Plaintiff did not appear for either deposition. Thereafter, plaintiff's deposition was scheduled for May 17, 1985, and May 24, 1985. Plaintiff also failed to appear on these dates. No order compelling plaintiff's attendance was ever sought or entered under Supreme Court Rule 203 (87 Ill.2d R. 203), regulating the place at which depositions may be taken of nonresident plaintiffs among others.

On July 15, 1985, defendant's motion to dismiss plaintiff's complaint pursuant to Supreme Court Rule 219 (87 Ill.2d R. 219) for failure to comply with discovery was granted and the circuit court dismissed plaintiff's cause of action with prejudice.

Approximately three weeks later, on August 9, 1985, Aetna, as insurer of plaintiff's employer, filed a motion to vacate the order of dismissal and subsequently filed a petition to intervene in the cause on August 16, 1985. The circuit court granted Aetna leave to intervene but denied its motion to vacate the dismissal on October 25, 1985. Aetna appeals.

I

• 1 Aetna maintains that the circuit court erred in granting defendant's motion to dismiss plaintiff's action for failure to comply with discovery. Under Supreme Court Rule 201(k) (87 Ill.2d R. 201(k)) any motion regarding discovery must include a statement that after personal consultation the parties were unable to resolve their differences. Strict compliance with this rule is required especially where, as here, drastic relief such as dismissal of the action is sought in the motion. (Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill.2d 559, 565, 416 N.E.2d 252; Spiller v. Continental Tube Co. (1983), 95 Ill.2d 423, 431, 447 N.E.2d 834; Gallo v. Henke (1982), 107 Ill. App.3d 21, 27, 436 N.E.2d 1068.) Failure to include a statement in compliance with Rule 201(k) should result in dismissal of the motion. Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill.2d 559, 566, 416 N.E.2d 252.

• 2 Here, defendant's motion to dismiss plaintiff's cause did not include a statement of personal consultation in compliance with Rule 201(k). Therefore, the circuit court should have dismissed defendant's motion rather than plaintiff's complaint. The drastic remedy of dismissal of an action for failure to comply with discovery is appropriate only where there is a showing of wilful and deliberate disregard of court authority. (Barnes v. Black & Decker Manufacturing Co. (1984), 135 Ill. App.3d 700, 706, 481 N.E.2d 1200.) There was no such showing here. In fact, the record reveals that plaintiff at least partly complied with discovery requests by answering interrogatories. Parenthetically, plaintiff's interrogatories addressed to defendant, served by mail on December 7, 1983, were never answered. The dismissal order was the first sanction entered by the circuit court in this case; however, as the authorities indicate, the purpose of discovery sanctions is to accomplish the required discovery, not to punish but to coerce recalcitrant parties to cooperate. (Jaffee v. Fogelson (1985), 137 Ill. App.3d 961, 964, 485 N.E.2d 531; Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill. App.3d 63, 398 N.E.2d 264.) We note also that plaintiff no longer resided in Illinois at some time during or soon after 1983. Under these circumstances the dismissal of plaintiff's cause of action as the initial court sanction was an abuse of discretion.

Defendant's reliance on Simmons v. Shimek (1985), 139 Ill. App.3d 927, 929, 488 N.E.2d 283, for the proposition that compliance with Rule 201(k) may be demonstrated by the record on review lends no support. That case, unlike the case at bar, involved a plaintiff who did not comply with circuit court orders to appear at his deposition and therefore is inapplicable.

Additionally, plaintiff, as a nonresident, was subject to the exercise of the circuit court's discretion as to where the deposition would be taken, "at a designated place in this State or elsewhere for [that] purpose," under Supreme Court Rule 203 (87 Ill.2d R. 203). It is possible that the court could have ordered the deposition of plaintiff to have been taken at a place other than defense counsel's office in Cook County where it had been set each time by defendant. Nothing in the record reveals any application to the circuit court for an order so directing. Although the deposition of a nonresident plaintiff may be requested without first securing a court order under Rule 203 (Gallo v. Henke (1982), 107 Ill. App.3d 21, 26, 436 N.E.2d 1068), the absence of any effort to secure court assistance prior to a dismissal of the cause reflects the improvidence of the latter course of action under these facts.

The dismissal of plaintiff's cause of action under these circumstances was error.

II

This appeal is taken by Aetna purportedly to protect its rights as plaintiff's employer's subrogee. In this posture, the disposition of this appeal depends on Aetna's right as an intervenor to appeal the dismissal.

• 3 Under section 5(b) of the Workers' Compensation Act (Act), an employer, or as here, the employer's insurer, must be given notice of any action filed by an employee and may intervene in the employee's cause of action against a third party at any time prior to the satisfaction of judgment. (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(b); Jackson v. Polar-Mohr (1983), 115 Ill. App.3d 571, 575, 450 N.E.2d 1263.) The purpose of such intervention is to allow the employer or insurer to protect its lien interest in any recovery of the employee to the extent that the employer or insurer initially was required to pay the employee under the Act. (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(b); Jackson v. ...


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