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United Services Auto Association v. Selina

Court of Appeals of Illinois, First District, Fourth Division

December 12, 2019

UNITED SERVICES AUTO ASSOCIATION, Plaintiff-Appellant,
v.
DAWN GOBENCIONG SELINA, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County No. 16 M115375 Honorable Jim Ryan, Judge, presiding.

          Attorneys for Appellant: Jeffrey S. Deutschman, of Deutschman & Associates, P.C., of Chicago, for appellant.

          Attorneys for Appellee: Samiha H. Yousuf and Faizan A. Khan, both of Chicago, for appellee.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

          OPINION

          LAMPKIN, JUSTICE

         ¶ 1 Plaintiff insurer United Services Auto Association (United) filed a subrogation action to recover property damages as a result of a vehicle collision between its insured and the defendant driver, Dawn Gobenciong Selina. At the mandatory arbitration hearing, United failed to comply with defendant's request to produce United's adjustor. The arbitration panel denied defendant's request for a bad faith finding against United, found instead that all the parties had participated in the hearing in good faith, and issued an award in favor of United.

         ¶ 2 Defendant rejected the arbitration award, requested a hearing in the circuit court, and subsequently moved the court to bar United from presenting any evidence and testimony at trial as a sanction for United's failure to produce its adjustor. The circuit court granted defendant's motion and subsequently denied United's motion to reconsider that ruling. Thereafter, the circuit court granted defendant's motion for a directed verdict.

         ¶ 3 On appeal, United argues that the circuit court erred when it (1) barred United from introducing any evidence or testimony at trial as a sanction for United's failure to produce its adjustor at the arbitration hearing where that failure was inadvertent and the arbitration panel found that United had participated in the hearing in good faith, (2) denied United's motion for reconsideration based on the court's erroneous application of existing law to the facts of this case, and (3) entered a directed verdict at trial as a result of these erroneous rulings.

         ¶ 4 For the reasons that follow, we hold that the circuit court abused its discretion when it barred United from presenting any evidence or testimony at the trial based on United's failure to produce its adjuster at the prior mandatory arbitration hearing where the arbitration panel found that all the parties had participated in the hearing in good faith and the circuit court's severe sanction extended to other issues in the case unrelated to the absence of the adjuster. Accordingly, we reverse the judgment of the circuit court and remand this matter for further proceedings.[1]

         ¶ 5 I. BACKGROUND

         ¶ 6 On January 22, 2016, United's insured, Darius Karalis, and defendant were in a vehicle collision on Interstate 55 in Hodgkins, Illinois. In November 2016, United filed its complaint for subrogation against defendant, alleging she negligently collided with the rear end of Karalis's vehicle because she drove too closely behind it and failed to drive at a reasonable speed, keep a proper lookout, maintain control of her vehicle, and keep her braking mechanism in good working order. United requested $7079.62 in damages as the amount it was required to expend under the terms of the deductible collision clause of its insurance policy with Karalis. The case was ordered to mandatory arbitration to determine liability and damages.

         ¶ 7 During discovery, defendant, pursuant to Illinois Supreme Court Rule 237(b) (eff. July 1, 2005), served United with a notice requiring the presence of Karalis and "an adjuster or representative from United who can competently testify regarding the alleged damages *** at the trial/arbitration in order that Defendant may call as witness."

         ¶ 8 In June 2017, United filed a motion with the circuit court to excuse the adjustor from the arbitration. United argued that it would produce its insured driver; this was a property damage subrogation case rather than a total loss claim; the alleged damages were $7079.62 and the paid vehicle repair bill was a presumptively admissible document pursuant to Illinois Supreme Court Rule 90(c) (eff. July 1, 2008); and requiring an adjuster to testify at the arbitration would not further the case, add any additional pertinent testimony, or bolster defendant's case. This motion was scheduled for hearing on July 12, 2017, but was stricken when United failed to appear.

         ¶ 9 Prior to the arbitration, United served on defendant its Rule 90(c) package, which consisted of photographs of Karalis's damaged vehicle and one ...


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