Appeal from the Circuit Court of St. Clair County. No. 97-AR-520 Honorable Annette A. Eckert, Judge, presiding.
The opinion of the court was delivered by: Justice Chapman
On October 31, 1996, Marla Wallace was injured in an automobile accident when the vehicle in which she was riding, as a passenger with Richard Norman, collided with a vehicle driven by Wenona Woolfolk. The vehicle operated by Woolfolk was insured by Gallant Insurance Company. Wallace filed a two-count complaint against Woolfolk and Norman. As a sanction for Woolfolk's failure to appear at her discovery deposition, the court struck Woolfolk's answer, jury demand, and counterclaim for contribution. Subsequently, Woolfolk failed to attend the mandatory arbitration. The arbitrator entered an award of $9,919.61 in favor of Wallace and against Woolfolk. Pursuant to Supreme Court Rule 91(a) (145 Ill. 2d R. 91(a)), the trial court barred Woolfolk from rejecting the award and entered judgment. Marla Wallace subsequently filed a nonwage garnishment action against Woolfolk's insurer, Gallant Insurance Company (Gallant). Gallant responded with the affirmative defense of Woolfolk's non-cooperation. The court struck Gallant's affirmative defense as legally insufficient and sanctioned Gallant in the amount of $850 for filing it without conducting a proper investigation. Gallant appeals. We affirm.
Two issues are raised on appeal: first, whether Gallant's affirmative defense was improperly stricken as legally insufficient and, second, whether the court abused its discretion in entering the sanctions order.
In Illinois, the burden of proof is on the insurance company to establish by a preponderance of the evidence that it acted in good faith to secure the attendance of its insured at trial and that the insured's failure to appear was due to her refusal to cooperate. See Lappo v. Thompson, 87 Ill. App. 3d 253, 254, 409 N.E.2d 26, 28 (1980); Mazzuca v. Eatmon, 45 Ill. App. 3d 929, 360 N.E.2d 454 (1977). An insurer is not liable for a judgment rendered against its insured if the insured willfully failed to cooperate by refusing to appear at trial after receiving adequate notice. However, the insurer is liable if it was not sufficiently diligent in attempting to secure the insured's appearance or if the insured's failure to attend was not due to a refusal to cooperate. See Harvey v. Johnson, 30 Ill. App. 3d 750, 755, 332 N.E.2d 680, 683 (1975). Good faith is evaluated not only in terms of what the insurer did to secure cooperation, but also in terms of what the insured failed to do. See Lappo, 87 Ill. App. 3d at 254, 409 N.E.2d at 28.
To determine whether the trial court erred in striking Gallant's affirmative defense of non-cooperation, we need to review the record to determine just what measures were taken to assure Woolfolk's cooperation in this matter.
On July 19, 1997, Woolfolk was served with Wallace's complaint. The case was assigned to the mandatory arbitration docket. On August 11, 1997, the law firm of Gallop, Johnson & Neuman (Gallop) sent its first letter to Woolfolk, notifying her that Gallant had hired Gallop to defend her. Gallant does not allege either that Woolfolk received this letter or that Gallop tried to find out whether she did.
On August 15, 1997, Wallace served interrogatories and a request for production on Woolfolk, by mailing them to Gallop. On August 19, 1997, an agreed order granted Woolfolk 30 days in which to respond to Wallace's complaint. On September 17, 1997, Gallop filed a motion to dismiss Wallace's claim. On September 18, 1997, Gallop allegedly mailed Woolfolk proposed answers to discovery. The letter from Gallop to Woolfolk does not appear in the record, but the date of mailing the proposed answers is referenced in a Gallop letter dated October 29, 1997.
On September 23, 1997, the case was set for arbitration for January 14, 1998. The record shows that on October 17, 1997, defendant Norman filed a notice to Woolfolk to be present at the arbitration. In an October 29, 1997, letter, Gallop asked Woolfolk to contact Gallop about proposed interrogatory answers that it had sent to her five weeks earlier. This letter advised Woolfolk that her failure to cooperate could result in her being held personally liable for any verdict rendered against her. On November 4, 1997, the clerk filed Wallace's motion to compel Woolfolk to respond to discovery requests. On November 13, 1997, the trial judge entered a pretrial management schedule, advising the parties of discovery deadlines. Gallant does not allege that Gallop informed Woolfolk of this schedule.
The record also shows the following:
November 21, 1997 Deadline for answering complaint; Woolfolk failed to answer.
November 25, 1997 Woolfolk was not present when attorneys for all parties convene for party depositions.
November 28, 1997 Deadline set by court for discovery; Woolfolk never answered discovery.
December 9, 1997 Gallop wrote to Woolfolk and asked her to respond to the interrogatories and request for production that had been sent four months earlier.
December 29, 1997 Defendant Norman filed a motion for default against Woolfolk because of Woolfolk's alleged ...