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Ruback v. Doss

March 29, 2004

[5] PATRICIA RUBACK, PLAINTIFF-APPELLANT,
v.
EMMET DOSS A/K/A EMMETTE DOSS, AND KATHERINE DOSS, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County 99 L 6571 Hon. John G. Laurie, Judge Presiding.

[7] The opinion of the court was delivered by: Justice McBRIDE

[8]  This appeal arises out of an automobile collision between plaintiff, Patricia Ruback, and defendant Emmet Doss, now deceased. Defendant Katherine Doss was Emmet's wife and was the owner of the vehicle driven by Emmet Doss during the collision with plaintiff. Katherine Doss was not in the vehicle driven by her husband at the time of the accident. After Emmet's death, Katherine Doss was appointed special administrator of his estate.

[9]  On June 14, 1999, plaintiff filed a two-count negligence complaint against Emmet Doss (count I) and Katherine Doss, under a principal-agent theory, (count II) alleging personal injuries as a result of the automobile collision between plaintiff and Emmet Doss on July 7, 1997. The case was originally filed in the law division, was transferred to the first municipal district, and was then submitted to mandatory arbitration. Before the arbitration hearing, plaintiff subpoenaed two occurrence witnesses at the addresses noted on the police report documenting the collision. These witnesses were Deitrich A. Norwood and Dondi Montgomery. Neither Norwood nor Montgomery appeared at the arbitration hearing. The record shows that plaintiff and her husband testified at the hearing and that plaintiff received an award of $30,000 against defendants. The arbitration award did not include a finding that plaintiff had acted in bad faith. Both plaintiff and defendants rejected the award and requested a trial.

[10]   On July 23, 2002, defendants filed a motion to bar plaintiff from testifying or producing any evidence at trial and to enter judgment for the defendants as a sanction under Supreme Court Rule 91(b) for plaintiff's failure to participate in good faith at the arbitration hearing. 145 Ill. 2d R.91(b). The basis of the motion to bar was that plaintiff and her husband were permitted to testify at the arbitration hearing in violation of the Dead-Man's Act, set forth in section 8-201 of the Illinois Code of Civil Procedure. 735 ILCS 5/8-201 (West 2000). Defendants argued that because plaintiff failed to produce any competent, independent, or disinterested witness to support her claim, she participated in bad faith at the arbitration hearing. The motion to bar did not provide a copy of the transcript of the arbitration hearing; however, on August 27, 2002, the trial court granted defendants' motion and barred plaintiff from presenting any evidence or testimony at trial pursuant to Supreme Court Rule 91(b). 145 Ill. 2d R.91(b).

[11]   On August 30, 2002, defendants moved for summary judgment on the ground that plaintiff was barred and could not produce any evidence or testimony at trial and, therefore, no genuine issue of material fact existed. The trial court granted defendants' summary judgment motion on October 3, 2002. On the same day, plaintiff's motion to reconsider was denied.

[12]   Plaintiff's primary contention on appeal is that the trial court abused its discretion when it determined plaintiff's participation in the arbitration hearing amounted to bad faith, and thereafter erroneously granted the motion to bar and defendants' motion for summary judgment.

[13]   Plaintiff claims that she participated in good faith at the arbitration hearing by attempting to procure two independent witnesses; by preparing and serving an evidence package under Supreme Court Rule 90(c)(166 Ill. 2d R. 90(c)), which consisted of documentary evidence related to her injuries; and by presenting her testimony and that of her husband. Plaintiff also contends that the trial court erred by finding her testimony was barred by the Dead-Man's Act, defendants should have objected to the testimony at the hearing, and the presentation of her case without independent witnesses did not amount to bad faith.

[14]   On appeal defendants' response is essentially the same argument they made to the trial court; plaintiff participated in bad faith by testifying at the arbitration hearing in violation of the Dead-Man's Act and by failing to produce the testimony of the independent witnesses subpoenaed. As noted above, in the absence of a bad-faith finding by the arbitrators and without the benefit of any transcript from the arbitration hearing, the trial court found that plaintiff did not participate in the arbitration hearing in good faith. The trial court's sanction order debarring plaintiff from presenting any evidence at trial was based upon Supreme Court Rule 91(b).

[15]   Supreme Court Rule 91(b) provides, in relevant part:

[16]   "All parties to the arbitration hearing must participate in the hearing in good faith and in a meaningful manner. If a panel of arbitrators unanimously finds that a party has failed to participate in a hearing in good faith and in a meaningful manner, the panel's finding and factual basis therefor shall be stated on the award. Such award shall be prima facie evidence that the party failed to participate in the arbitration hearing in good faith and in a meaningful manner and a court, when presented with a petition for sanctions or remedy therefor, may order sanctions as provided in Rule 219(c) ***." 145 Ill. 2d R. 91(b).

[17]   Sanctions imposed by a trial court under Rule 91 "will be reversed only where the court's decision represents an abuse of discretion." State Farm Insurance Co. v. Harmon, 335 Ill. App. 3d 687, 690, 781 N.E.2d 335 (2002). A party must "participate in an arbitration hearing in good faith by subjecting the case to the type of adversarial testing expected at a trial." Harmon, 335 Ill. App. 3d at 690. A party acts in bad faith "where its actions amount to a deliberate and pronounced disregard for the rules and the court." Harmon, 335 Ill. App. 3d at 690. "Bad faith may consist of inept preparation or intentional disregard for the process." Harmon, 335 Ill. App. 3d at 690. Further, an abuse of discretion means a decision that is arbitrary or exceeds the bounds of reason. State Farm Insurance Co. v. Rodrigues, 324 Ill. App. 3d 736, 740, 756 N.E.2d 359 (2001).

[18]   The Dead-Man's Act provides, in relevant part:

[19]   "In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** to any event which took place in the presence of the deceased ***." 735 ILCS 5/8-201 (West 2000).

[20]   The purposes of the Dead-Man's Act are: "[T]o protect decedents' estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony. [Citation.] The Act bars only that evidence which defendant could have ...


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