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09/30/97 WEST BEND MUTUAL INSURANCE COMPANY v.

September 30, 1997

WEST BEND MUTUAL INSURANCE COMPANY, A/S/O/ JOHN CENCIG, PLAINTIFF-APPELLEE,
v.
NICANDRO HERRERA AND FRANCISCO HERRERA, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones III, Judge Presiding.

Released for Publication November 26, 1997.

The Honorable Justice Burke delivered the opinion of the court. Wolfson, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

Defendants Nicandro Herrera and Francisco Herrera (the Herreras) appeal from an order of the circuit court of Cook County debarring them from rejecting an arbitration award issued against them and in favor of plaintiff West Bend Mutual Insurance Company (West Bend). On appeal, the Herreras argue that: (1) they could not be barred from rejecting the arbitration award under Illinois Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)); (2) they could not be barred from rejecting the award under Illinois Supreme Court Rules 90(g) or 237 (169 Ill. 2d R. 90(g), 166 Ill. 2d R. 237); (3) there were no grounds for barring their rejection of the award; (4) the trial court's application of the Illinois Supreme Court Rules denied them equal protection of the laws; (5) the trial court's denial of a trial by jury violated the due process clause; (6) debarring them from rejecting the award deprived them of their constitutional right to a trial by jury; (7) debarring them from rejecting the award violated the enabling statute; and (8) debarring them from rejecting the award was an excessive sanction. For the reasons set forth below, we reverse.

On July 1, 1994, West Bend filed a complaint against the Herreras alleging negligence and seeking damages as a result of an automobile collision between West Bend's insured, John Cencig, and a car driven by Nicandro and owned by Francisco, which occurred on July 23, 1993. The Herreras filed an appearance, an answer with affirmative defenses, and a jury demand. Thereafter, West Bend filed a "Notice to Produce at Trial and Arbitration Hearing" pursuant to Illinois Supreme Court Rules 237 (166 Ill. 2d R. 237) and 90(g) (169 Ill. 2d R. 90(g)), and section 2--1102 of the Illinois Code of Civil Procedure (735 ILCS 5/2--1102 (West 1992)), requesting that the Herreras appear at the commencement of West Bend's case-in-chief.

On October 27, 1994, West Bend filed a notice of deposition for Nicandro Herrera, but the deposition was subsequently cancelled. Thereafter, the trial court assigned the case to mandatory arbitration and, on June 22, 1995, the arbitration hearing was held. The record does not contain a transcript of that hearing. It is undisputed, however, that both Francisco and Nicandro Herrera appeared at the hearing with counsel. The arbitrators issued an award in favor of West Bend in the amount of $3,952. The award did not state any other findings. The Herreras filed a timely notice of rejection of the award, and requested a trial pursuant to Supreme Court Rule 93. 174 Ill. 2d R. 93.

Thereafter, West Bend filed a motion to bar the Herreras from rejecting the arbitration award, arguing that while Nicandro Herrera appeared at the arbitration hearing, when called to testify during West Bend's case-in-chief, Nicandro "advised all persons present at the arbitration hearing that he did not speak any English." West Bend also stated that the Herreras did not provide an interpreter at the hearing, and neither of the Herreras testified in either West Bend's case-in-chief or the Herreras' case-in-chief. West Bend argued that because Nicandro failed to testify pursuant to its notice to produce under Rule 237(b) (166 Ill. 2d R. 237(b)), and failed to testify in his own behalf, he failed to participate in good faith as required by Rule 91 (145 Ill. 2d R. 91). West Bend further argued that, as a result of Nicandro Herreras' failure to testify, he prevented a meaningful arbitration hearing from occurring.

In their response to West Bend's motion to bar their rejection of the arbitration award, the Herreras contended that they had complied with Rule 237 based on the fact that they both appeared at the arbitration hearing. They also contended that no rules existed requiring them to provide a translator at the hearing and that West Bend knew prior to the hearing that Nicandro would require a translator because West Bend had cancelled Nicandro's deposition for that same reason. The Herreras further contended that debarment from rejecting the arbitration award would be an improper sanction because, pursuant to the rules, there are only two grounds for barring a party from rejecting an award--when a party was either not present at the hearing either in person or by counsel or where a party failed to participate in the hearing in good faith and in a meaningful manner and the arbitration panel makes such an express finding--and the Herreras actions did not fall within either of these two categories. The Herreras also contended that Rule 237 did not require a party to provide an interpreter, but rather only that the party "appear" at the proceedings. An affidavit was attached to the Herreras' response from the Herreras attorney, Molly Wood, which stated that Wood and the Herreras were present at the arbitration hearing, Nicandro Herrera spoke broken English, and Wood actively participated in the arbitration hearing "by making an opening statement, cross-examining the plaintiff and making a closing argument denying Defendants' negligence and responsibility for the Plaintiff's property damage."

In reply to the Herreras' response to its motion, West Bend argued that the Herreras' attorney was aware that Nicandro did not speak English; West Bend was not aware that Nicandro did not speak English; the Herreras had a duty to ensure their availability to testify and to provide a translator; the Herreras' attorney did not suggest at the hearing that Nicandro could speak broken English but rather stated that he only spoke Spanish; and Nicandro never spoke in English at the hearing. West Bend contended that because Nicandro did not testify at the arbitration hearing, he should be precluded from testifying at the trial. West Bend further contended that Nicandro's failure to testify violated Rule 237 because this rule "requires the appearance of the party for purposes of said party being a witness," and Nicandro's "failure to testify [was] therefore a violation of the spirit of Rule 237." West Bend argued that because of this "violation," the trial court could exclude or debar Nicandro from testifying at trial.

On September 15, 1995, the trial court entered an order, ruling that Nicandro Herrera "failed to participate in a meaningful manner and in good faith by failing to testify at the arbitration hearing in both Plaintiffs case pursuant to plaintiffs 237 notice and in Defendants case in chief"; that Nicandro was therefore "debarred from Rejecting the arbitration award"; "and judgment on the award in the amount of $3,952.00 plus costs is entered in favor of plaintiff [West Bend] and against the Defendants [Herreras]." The record does not include any transcripts of the hearing on West Bend's motion. This appeal followed.

The Herreras contend that they could not be barred from rejecting the arbitration award under Supreme Court Rule 91(b) because "the arbitration panel alone has the power to make a determination" in its award that they failed to participate in the hearing in good faith and in a meaningful manner, and that "nothing in that rule extends that power to the court." According to the Herreras, absent a finding of bad faith participation, "clearly Supreme Court Rule 91(b) was not intended to allow the court to make its own independent finding of bad faith participation," especially in light of the fact that the trial court was not in any position to evaluate their conduct at the arbitration hearing because it had no transcripts from the hearing upon which to base any ruling.

West bend argues that "there is no conjunctive requirement [in Rule 91(b)] that an arbitration panel finding of bad faith participation must precede a lower court's ability to debar a rejection [of an arbitration award]," but rather, Rule 91(b) only indicates that such a finding by the arbitration panel is prima facie evidence that a party failed to participate in good faith or in a meaningful manner, which "indicates the intent of *** Rule 90(g) for a hearing to be conducted in which evidence is presented for the trial court to make its ultimate decision as to whether or not bad faith participation occurred and whether or not a debarment of rejection is justified."

"Interpreting Supreme Court Rules involves the same principles which are applicable when interpreting statutes. The primary rule of statutory interpretation is that the court should ascertain and give effect to the intent of the legislature." Furniss v. Rennick, 286 Ill. App. 3d 318, 319, 676 N.E.2d 8, 221 Ill. Dec. 668 (1997). Supreme Court Rule 93(a) sets forth the procedure by which a party may reject an arbitration award. The rule provides that "within 30 days after the filing of an award with the clerk of the court, and upon payment of the sum of $200 to the clerk of the court, any party who was present at the arbitration hearing *** may file with the clerk a written notice of rejection of the award and request to ...


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