Nationwide Mut. Ins. Co. v. Kogut

819 N.E.2d 1127, 354 Ill. App. 3d 1, 289 Ill. Dec. 327
CourtAppellate Court of Illinois
DecidedNovember 15, 2004
Docket1-02-3505
StatusPublished
Cited by1 cases

This text of 819 N.E.2d 1127 (Nationwide Mut. Ins. Co. v. Kogut) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mut. Ins. Co. v. Kogut, 819 N.E.2d 1127, 354 Ill. App. 3d 1, 289 Ill. Dec. 327 (Ill. Ct. App. 2004).

Opinion

819 N.E.2d 1127 (2004)
354 Ill. App.3d 1
289 Ill.Dec. 327

NATIONWIDE MUTUAL INSURANCE COMPANY, as Subrogee of Irene MIKA, Plaintiff-Appellant,
v.
Dorota KOGUT, Defendant-Appellee.

No. 1-02-3505.

Appellate Court of Illinois, First District, First Division.

November 15, 2004.

*1128 John G. McAuley of McAuley & Lamborn, Chicago, for Appellant.

Betsy Rosenberg of Mordini & Schwartz, P.C., Chicago, for Appellee.

Justice CAHILL delivered the opinion of the court:

Plaintiff Nationwide Mutual Insurance Company appeals a trial court order that barred it from rejecting an arbitration award on the sole ground that it failed to produce its insured at arbitration. We believe the order barring plaintiff from rejecting the award was an abuse of discretion. We reverse and remand for further proceedings.

Plaintiff filed a subrogation action against defendant Dorota Kogut for damages arising out of a car accident involving defendant and plaintiff's insured, Irene Mika. The case was assigned to mandatory arbitration. The hearing was not transcribed, but the record reveals that counsel for both parties, an agent for plaintiff, an interpreter for Mika (who does not speak English) and defendant attended. Mika did not attend the hearing. The record reveals that plaintiff presented testimony from its agent and defendant as an adverse witness. Plaintiff also submitted evidence of damages through a Rule 90(c) package (Official Reports Advance Sheet No. 26 (December 24, 2003), R. 90(c), eff. January 1, 2004).

An award was entered for defendant. Plaintiff filed a timely notice of rejection of the award. Defendant moved to bar plaintiff's rejection under Supreme Court Rule 91(b) (145 Ill.2d R. 91(b)), arguing plaintiff failed to participate in the arbitration in good faith and in a meaningful manner because plaintiff did not produce Mika at the hearing. Plaintiff responded that it made reasonable but unsuccessful attempts to produce Mika. Plaintiff's attorney said in an affidavit that he asked Mika's insurance agent, Isabel Karem, to contact Mika and confirm the arbitration date. Karem had acted as an interpreter for Mika in the past. Plaintiff's attorney *1129 and Karem made a conference call to Mika and spoke with Mika's husband and son. Mika's son told plaintiff's attorney that Mika would attend the arbitration. Plaintiff's attorney also said he paid a Polish interpreter $140 to attend the hearing. Defendant did not respond to plaintiff's affidavit.

The trial court granted defendant's motion to bar rejection and entered judgment on the award for defendant. Plaintiff appeals, arguing: (1) the trial court's finding that plaintiff failed to participate in the arbitration in good faith and in a meaningful manner solely on the ground that plaintiff did not produce Mika at the hearing was an abuse of discretion; and (2) the trial court erred by failing to include in its written order the grounds for barring rejection of the award as required under Supreme Court Rule 219(c) (166 Ill.2d R. 219(c)).

We consider plaintiff's arguments out of sequence and begin our analysis by addressing the contention that the trial court committed reversible error by failing to put in writing the ground for its finding that plaintiff failed to participate in good faith and in a meaningful manner.

Rule 219(c) provides a range of sanctions a court may impose where a party fails to comply with discovery. 166 Ill.2d R. 219(c). The last paragraph of Rule 219(c) directs that where a sanction is imposed under the rule, the court "shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order." 166 Ill.2d R. 219(c). Rule 219(c) is made applicable to mandatory arbitration proceedings through Rule 91(b), which authorizes a court to "order sanctions as provided in Rule 219(c)" where a party fails to participate in the arbitration hearing in good faith and in a meaningful manner. 145 Ill.2d R. 91(b).

Rule 91(b) does not limit the applicability of Rule 219(c) to the list of sanctions contained therein. Rather, it directs the trial court to "order sanctions as provided in Rule 219(c)." (Emphasis added.) 145 Ill.2d R. 91(b). By using the language "as provided in" we believe the drafters of Rule 91(b) intended to incorporate the procedure to be followed when imposing Rule 219(c) sanctions, including the directive to the trial court that it set forth with specificity the grounds for its decision.

This reading of Rule 91(b) is consistent with our treatment of sanction orders in other contexts, including proceedings for contempt and for sanctions under Rules 137 (155 Ill.2d R. 137) and 219(c). See Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill.App.3d 509, 514, 254 Ill.Dec. 776, 748 N.E.2d 222 (2001) (contempt order must state the specific acts on which it is based); Selvy v. Beigel, 309 Ill.App.3d 768, 777, 243 Ill.Dec. 399, 723 N.E.2d 702 (1999) (trial court must state grounds for imposing Rule 137 sanctions); Chabowski v. Vacation Village Ass'n, 291 Ill.App.3d 525, 528, 228 Ill.Dec. 806, 690 N.E.2d 115 (1997) (trial court is required to give specific reasons for imposing Rule 219(c) discovery violation sanctions). Sanctions, in whatever context, are not available on the wave of a wand. If we are to maintain the deference granted the trial court under an abuse of discretion standard of review, and to ensure the integrity of the standard, we must continue to urge the trial courts to draft sanction orders that are specific enough to allow us to defer to the discretion of the trial court with confidence. See North Shore Sign Co., Inc. v. Signature Design Group, Inc., 237 Ill.App.3d 782, 790-91, 178 Ill.Dec. 634, 604 N.E.2d 1157 (1992) (the considerable deference given a trial court's decision whether to impose sanctions is predicated on the necessary requirement that the trial *1130 court make explicit factual findings on which a court of review may make an informed decision).

While we find that courts must put in writing the grounds for issuing Rule 91(b) sanctions, we do not agree that the trial court's failure in this case to put in writing the grounds for barring plaintiff's rejection of the arbitration award, standing alone, requires reversal. See Chabowski, 291 Ill.App.3d at 528, 228 Ill.Dec. 806, 690 N.E.2d 115 (a court's failure to set forth the grounds for sanctions under Rule 219(c) is not per se reversible error). In this case we are able to surmise from the record the basis for the court's decision: the failure to produce the insured. Although defendant argued plaintiff should be barred from rejecting the arbitration award on more than one ground, the trial court granted defendant's motion under Rule 91(b). The only ground for defendant's Rule 91(b) argument was that plaintiff failed to produce its insured at the arbitration hearing. Defendant did not attack the degree of plaintiff's participation on any other ground.

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Bluebook (online)
819 N.E.2d 1127, 354 Ill. App. 3d 1, 289 Ill. Dec. 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mut-ins-co-v-kogut-illappct-2004.