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Glover v. Fitch

Court of Appeals of Illinois, First District, Third Division

June 24, 2015

TIFFANY L. GLOVER, by National Heritage Insurance Company, Plaintiff-Appellant,
v.
BEVERLY FITCH, Defendant-Appellee

Appeal from the Circuit Court of Cook County. No. 11-M1-13422. The Honorable James Snyder, Judge Presiding.

For PLAINTIFF-APPELLANT: Samuel A. Shelist, Shelist Law Firm, LLC, Chicago, IL.

For DEFENDANT-APPELLEE: Jamie Shimer, Fabrizio, Hanson, Peyla & Kawinski, P.C., Joliet, IL.

PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Hyman and Mason concurred in the judgment and opinion.

OPINION

PUCINSKI, PRESIDING JUSTICE

[¶1] This case arises from an automobile collision in which Tiffany Glover suffered personal injuries and Glover's insurer, plaintiff National Heritage Insurance Company (National Heritage), suffered $7,224 in damages. National Heritage brought this subrogation action as the subrogee of Glover against defendant, Beverly Fitch, who was allegedly negligent in causing the collision. The case was assigned to arbitration and the arbitration trial date occurred with defendant and defendant's counsel's failure to appear. An arbitration award was entered in favor of National Heritage. Defendant filed a motion to reject or vacate the arbitration award, arguing that defense counsel never received notice of the arbitration hearing date. The circuit court granted defendant's motion and the case proceeded to trial, whereupon a jury trial was held and resulted in a verdict for defendant. Plaintiff appealed, arguing that the arbitration award should not have been vacated due to alleged lack of postcard notice to defense counsel because counsel has an affirmative duty to follow his own case and knew that the case had been assigned to arbitration. Defendant argued that we lack jurisdiction of the appeal because plaintiff did not seek Illinois Supreme Court Rule 304(a) language (Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010)) to permit an earlier appeal from the order vacating the arbitration award and that, in the alternative, the court did not abuse its discretion in vacating the arbitration award where defense counsel was not sent notice of the arbitration date.

[¶2] Regarding jurisdiction, we hold that parties are not required to appeal an interlocutory order within 30 days of entry of that order but may instead choose to appeal upon a final judgment in the case. Parties may, of course, seek the inclusion of Illinois Supreme Court Rule 304(a) language (Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010)) in an interlocutory order to be able to immediately appeal that order, but they are not required to do so and may, instead, wait until entry of a final judgment.

[¶3] As to the merits of the case, we hold that the court did not abuse its discretion in vacating the arbitration award. Although the circuit court relied on the fact that defense counsel did not receive postcard notice of the hearing date because of the circuit court clerk's delay in properly entering his appearance, we caution that attorneys still have a duty to keep track of their cases on the docket. In this case defense counsel apparently did not inquire as to the date of the arbitration hearing, though he knew the case was on the arbitration calendar. Given our deferential standard of review, however, we cannot say that the circuit court abused its discretion in vacating the default judgment based on the failure to send notice of the hearing date to defense counsel. While the circuit court focused on the error by the clerk's office in entering defense counsel's appearance, we hold that the arbitration center's failure to provide the required notice pursuant to Illinois Supreme Court Rule 88 (eff. June 1, 1987) and the arbitration panel's failure to inquire whether all parties received due notice pursuant to Illinois Supreme Court Rule 91(a) (eff. June 1, 1993) also support the circuit court's determination to vacate the arbitration default judgment.

[¶4] BACKGROUND

[¶5] On February 4, 2011, defendant Beverly Fitch was allegedly negligent in an automobile collision with Tiffany L. Glover. Glover suffered personal injuries as well as property damage. Glover's insurer, National Heritage, paid Glover damages and brought this action on May 11, 2011 against Fitch as Glover's subrogee to recover the damages it paid.

[¶6] On August 31, 2011, Fitch's counsel filed his appearance, jury demand, and answer. The case was transferred to assignment to arbitration on November 10, 2011. A discovery closure date was entered on November 10, 2011.

[¶7] On December 11, 2011, plaintiff filed and mailed out an Illinois Supreme Court Rule 90 (eff. July 1, 2008) and Rule 237 (eff. July 1, 2005) package for arbitration to Fitch's counsel. The Rule 90 and Rule 237 package did not include or reference the arbitration hearing date.

[¶8] On January 13, 2012, Fitch's counsel filed a motion to continue the arbitration, to reopen discovery, and to consolidate. The motion was noticed for January 25, 2012. On that date, the motion to continue arbitration was granted and the matter was reset for arbitration on March 27, 2012. On February 21, 2012, plaintiff filed a motion to continue the March 27, 2012 arbitration date and to amend the complaint to include personal injuries.

[¶9] Plaintiff was granted leave to file an amended complaint and filed an amended complaint on March 14, 2012, which added a count for subrogation and a count for personal injuries. The discovery closure date was continued to May 1, 2012. The March 27, 2012 arbitration hearing date was stricken upon ...


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