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03/27/97 VALERIE A. WEBBER v. DEAN P. BEDNARCZYK

March 27, 1997

VALERIE A. WEBBER, PLAINTIFF-APPELLEE,
v.
DEAN P. BEDNARCZYK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Edwin J. Richardson, Judge Presiding.

Released for Publication May 12, 1997.

The Honorable Justice Cerda delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

The defendant appeals a finding by the circuit court of Cook County that the defendant did not participate in an arbitration hearing in good faith and in a meaningful manner in violation of Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)) and appeals the sanction that was entered against him as a consequence. Defendant was barred from rejecting the arbitration award as a sanction. We reverse.

Plaintiff alleged in her complaint that defendant negligently collided his car into her car. Defendant denied in his answer that he was negligent, and he filed an affirmative defense that plaintiff was contributorily negligent.

Both plaintiff's and defendant's depositions were taken.

On June 27, 1995, discovery was closed, and the cause was assigned to mandatory arbitration.

Defendant filed a Supreme Court Rule 90(c) notice of intent to offer into evidence at the arbitration hearing plaintiff's medical reports, which revealed the following. As a child, plaintiff had poliomyelitis affecting the left leg. In November 1993, plaintiff complained to her doctor of low-back pain and weakness in her left leg. Her doctor's assessment was "left sided weakness possibly secondary to polio" and "back strain, secondary to possible automobile accident." Plaintiff was referred to another doctor for "evaluation of the polio," and physical therapy was ordered for the back pain. A December 1993 laboratory report found no electrophysiological evidence of post-polio syndrome.

On September 21, 1995, the arbitrators awarded plaintiff $10,500. The arbitrators did not make a finding that defendant participated in bad faith, and the arbitration award did not state whether plaintiff sought such a finding. Defendant rejected the award on October 11, 1995.

On October 24, 1995, plaintiff filed a motion to strike defendant's rejection of the arbitration award, and she argued that defendant denied that he negligently caused the collision and that defendant filed an affirmative defense claiming that the plaintiff was contributorily negligent. Plaintiff also argued that, despite defendant's deposition testimony that he was not paying attention while driving, in the arbitration hearing defendant denied liability and argued that plaintiff contributed to the collision because she failed to keep a proper lookout for vehicles before she turned left.

In her motion, plaintiff also gave the following as reasons why defendant did not participate in the arbitration in good faith: (1) prior to the arbitration hearing defendant refused to admit liability without any basis to do so; (2) defendant failed to conduct a reasonable investigation of the facts before filing his frivolous affirmative defenses; (3) defendant failed to withdraw the affirmative defense after defendant's deposition clearly established that it was erroneously filed; (4) defendant argued in a letter written to plaintiff's attorney before arbitration (a) that plaintiff was referred to a second doctor for the purpose of evaluating her polio and (b) that only some of the damages submitted by plaintiff were related to the accident; (5) at the arbitration hearing defendant did not present any medical testimony in support of the polio argument, and the medical records rebutted that argument; (6) defendant introduced documents pursuant to Supreme Court Rule 90(c) in support of an argument that plaintiff's childhood polio was a cause of her medical treatment; and (7) defendant argued without any basis at the arbitration hearing that plaintiff was contributorily negligent.

At the same time that plaintiff filed the motion to strike, she filed the following supplemental interrogatories, to which defendant objected:

"1. Please state any and all case names and Court numbers of any and all cases filed in the Circuit Court of Cook County that were assigned to Mandatory Arbitration in which the law firm of Galvin, Mordini, Schwartz and Meade represented any Defendant sued or which had ...


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