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02/23/96 DARYL SMITH v. FREDERICK A. JOHNSON

February 23, 1996

DARYL SMITH, PLAINTIFF-APPELLEE,
v.
FREDERICK A. JOHNSON, DEFENDANT, AND LYNDA MCCASTER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN J. CROWN, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Egan, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Defendant Lynda McCaster appeals from an order of the circuit court of Cook County quashing her rejection of an arbitration award and entering judgment on the award against her. We affirm. The relevant facts are as follows.

Plaintiff, Daryl Smith, brought this action against defendants, Lynda McCaster and Frederick A. Johnson, to recover for injuries and damages sustained during a collision between plaintiff's and McCaster's vehicles near the intersection of 37th Street and Ashland Avenue on February 8, 1993. Plaintiff's complaint alleged that on that date, the automobile driven by Johnson and owned by McCaster violently collided with the rear of plaintiff's automobile. Plaintiff alleged that Johnson was McCaster's agent. Plaintiff filed his complaint on July 20, 1993. On August 30, 1993, the matter was transferred to mandatory arbitration. The arbitration hearing was scheduled for March 18, 1994.

On March 16, 1994, Johnson's attorneys, who also represented McCaster, moved to excuse Johnson from the arbitration hearing. Plaintiff had served both defendants with a notice to appear at trial and/or at any mandatory arbitration proceedings pursuant to Rule 237(b). 134 Ill. 2d R. 237(b). The motion to excuse Johnson explained that he was incarcerated in Wisconsin at the time and stated that McCaster had promised to attend the hearing. The trial court entered an order excusing Johnson.

The arbitration hearing took place two days later, on March 18, 1994. Defendants' attorneys were present, but neither defendant attended. The panel of arbitrators entered a unanimous finding in favor of plaintiff and against both Johnson and McCaster in the amount of $15,000. The arbitrators also concluded that McCaster willfully failed to appear pursuant to notice and recommended that McCaster not be allowed to reject the award.

On April 11, 1994, McCaster and Johnson together filed a notice rejecting the arbitration award and requesting a trial on the matter. The trial court granted a hearing on plaintiff's motion to quash the rejection of the award. After receiving briefs and hearing arguments, the trial court quashed McCaster's rejection and entered judgment in favor of plaintiff and against McCaster in the amount of $15,000.

McCaster now contends that the trial court erred in barring her from rejecting the arbitration award. She relies primarily on two cases, Weisenburn v. Smith, 214 Ill. App. 3d 160, 573 N.E.2d 240, 157 Ill. Dec. 822 (1991), and Allstate Insurance Co. v. Pena, 227 Ill. App. 3d 348, 591 N.E.2d 526, 169 Ill. Dec. 353 (1992), both of which held that a defendant who does not attend an arbitration hearing but is represented by an attorney is deemed present and thereby preserves his right to reject an arbitration award.

Plaintiff, however, points out that McCaster ignores amendments made in 1993 to the supreme court rules governing mandatory arbitration. Specifically, plaintiff argues that pursuant to newly amended Rule 90(g), debarring a defendant from rejecting an arbitration award is an appropriate sanction for that party's failure to comply with a Rule 237(b) notice to appear. 145 Ill. 2d R. 90(g). Similarly, newly added subsection (b) of Rule 91 grants a trial court the authority to enter an order debarring a defendant from rejecting an award if it has been determined that such defendant has willfully failed to participate in the hearing in a meaningful manner. 145 Ill. 2d R. 91(b). Plaintiff argues, therefore, that the trial court's order quashing McCaster's rejection of the arbitration award was an appropriate exercise of discretion and should not be disturbed.

Supreme Court Rules 86 through 95 govern actions subject to mandatory arbitration, and, as plaintiff indicates, certain amendments to Rules 90, 91, and 93, which took effect June 1, 1993, affect the outcome of this case. 145 Ill. 2d Rs. 90, 91, 93.

Subsection (g) of Rule 90 was amended and now provides as follows:

"(g) Compelling Appearance of Witness at Hearing. The provisions of Rule 237, herein, shall be equally applicable to arbitration hearings as they are to trials. The presence of a party may be waived by stipulation or excused by court order for good cause shown not less than seven days prior to the hearing. Remedies upon a party's failure to comply with notice pursuant to Rule 237(b) may ...


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