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Anderson v. Mercy

April 8, 2003

JANICE ANDERSON PLAINTIFF-APPELLEE,
v.
BRIAN MERCY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois No. 01-AR-452 Honorable Mark A. VandeWiele Judge, Presiding

The opinion of the court was delivered by: Presiding Justice McDADE

PUBLISHED

Following mandatory arbitration in a personal injury action arising from an automobile collision, an award was entered in favor of plaintiff Janice Anderson and against defendant Brian Mercy. The circuit court granted plaintiff's motion to bar defendant from rejecting the arbitration award, and later entered judgment on the award in favor of plaintiff. Defendant appealed, contending the trial court abused its discretion when it barred him from rejecting the arbitration award. For the reasons stated below, we vacate and remand.

FACTS

The record before us does not contain transcripts of the arbitration hearing but does, reveal the following facts.

On November 6, 2001, plaintiff filed a negligence action, alleging injuries, following a two-car accident in which she was a passenger in a vehicle that was struck by defendant's vehicle. Because plaintiff sought less than $50,000 in damages, the matter was submitted to mandatory arbitration.

Through a letter dated April 17, 2002, defendant's counsel notified plaintiff's attorney that:

"I anticipate admitting liability and trying the case on the issue of proximate cause and damages. Unless you have some objection, I do not intend to produce my client at the arbitration hearing currently scheduled for May 23, 2002. If you have an objection, please inform me immediately and I will file the appropriate motion with the court and request that his presence be excused since he lives in Hawaii and liability is admitted."

Plaintiff did not object to defendant's absence nor did she request his presence by a Rule 237 (166 Ill. 2d R. 237) notice.

The arbitration hearing was held on May 23, 2002. Defendant's counsel was present but defendant was not and the hearing proceeded without him. Defendant's counsel did not present either an arbitration package or any direct evidence at the arbitration hearing. The arbitrators entered an award for plaintiff and against defendant in the amount of $15,000. This award was less than the amount that plaintiff had sought. The arbitration panel made no determination that defendant had or had not participated in good faith, nor was it asked by either party to do so.

On June 3, 2002, defendant filed his notice of rejection of the arbitration award. In response, plaintiff filed a motion to debar rejection of the award, stating that defendant presented no evidence to the arbitration panel and failed to participate in the hearing in good faith and in a meaningful manner. Defendant's response was supported by the affidavit of his attorney, who averred that the defendant actively participated in the arbitration proceedings through counsel, who cross-examined plaintiff and made a closing argument.

On August 21, 2002, the trial court found defendant had failed to participate in good faith in the arbitration hearing and was, therefore, barred from rejecting the arbitration award. The court entered judgment in plaintiff's favor, stating in its written order: "Defendant did not present any evidence at the arbitration hearing, not one witness, not one document. Defendant deemed it too inconvenient to appear and also deemed it unnecessary to hire his own medical expert or submit any evidence via Rule 90."

Defendant timely ...


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