West Bend Mutual Insurance v. Herrara

September 30, 1997

No. 1--95--3577

WEST BEND MUTUAL INSURANCE COMPANY, ) Appeal from the
a/s/o/ JOHN CENCIG, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. )
)
NICANDRO HERRERA and )
FRANCISCO HERRERA, ) Honorable
) Sidney A. Jones III,
Defendants-Appellants. ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Defendants Nicandro Herrera and Francisco Herrera (the
Herreras) appeal from an order of the circuit court of Cook County
debarring them from rejecting an arbitration award issued against
them and in favor of plaintiff West Bend Mutual Insurance Company
(West Bend). On appeal, the Herreras argue that: (1) they could
not be barred from rejecting the arbitration award under Illinois
Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)); (2) they could not
be barred from rejecting the award under Illinois Supreme Court
Rules 90(g) or 237 (145 Ill. 2d R. 90(g), 134 Ill. 2d R. 237); (3)
there were no grounds for barring their rejection of the award; (4)
the trial court's application of the Illinois Supreme Court Rules
denied them equal protection of the laws; (5) the trial court's
denial of a trial by jury violated the due process clause; (6)
debarring them from rejecting the award deprived them of their
constitutional right to a trial by jury; (7) debarring them from
rejecting the award violated the enabling statute; and (8)
debarring them from rejecting the award was an excessive sanction.
For the reasons set forth below, we reverse.
On July 1, 1994, West Bend filed a complaint against the
Herreras alleging negligence and seeking damages as a result of an
automobile collision between West Bend's insured, John Cencig, and
a car driven by Nicandro and owned by Francisco, which occurred on
July 23, 1993. The Herreras filed an appearance, an answer with
affirmative defenses, and a jury demand. Thereafter, West Bend
filed a "Notice to Produce at Trial and Arbitration Hearing"
pursuant to Illinois Supreme Court Rules 237 (134 Ill. 2d R. 237)
and 90(g) (145 Ill. 2d R. 90(g)), and section 2--1102 of the
Illinois Code of Civil Procedure (735 ILCS 5/2--1102 (West 1992)),
requesting that the Herreras appear at the commencement of West
Bend's case-in-chief.
On October 27, 1994, West Bend filed a notice of deposition
for Nicandro Herrera, but the deposition was subsequently
cancelled. Thereafter, the trial court assigned the case to
mandatory arbitration and, on June 22, 1995, the arbitration
hearing was held. The record does not contain a transcript of that
hearing. It is undisputed, however, that both Francisco and
Nicandro Herrera appeared at the hearing with counsel. The
arbitrators issued an award in favor of West Bend in the amount of
$3,952. The award did not state any other findings. The Herreras
filed a timely notice of rejection of the award, and requested a
trial pursuant to Supreme Court Rule 93. 145 Ill. 2d R. 93.
Thereafter, West Bend filed a motion to bar the Herreras from
rejecting the arbitration award, arguing that while Nicandro
Herrera appeared at the arbitration hearing, when called to testify
during West Bend's case-in-chief, Nicandro "advised all persons
present at the arbitration hearing that he did not speak any
[E]nglish." West Bend also stated that the Herreras did not
provide an interpreter at the hearing, and neither of the Herreras
testified in either West Bend's case-in-chief or the Herreras'
case-in-chief. West Bend argued that because Nicandro failed to
testify pursuant to its notice to produce under Rule 237(b) (134
Ill. 2d R. 237(b)), and failed to testify in his own behalf, he
failed to participate in good faith as required by Rule 91 (145
Ill. 2d R. 91). West Bend further argued that, as a result of
Nicandro Herreras' failure to testify, he prevented a meaningful
arbitration hearing from occurring.
In their response to West Bend's motion to bar their rejection
of the arbitration award, the Herreras contended that they had
complied with Rule 237 based on the fact that they both appeared at
the arbitration hearing. They also contended that no rules existed
requiring them to provide a translator at the hearing and that West
Bend knew prior to the hearing that Nicandro would require a
translator because West Bend had cancelled Nicandro's deposition
for that same reason. The Herreras further contended that
debarment from rejecting the arbitration award would be an improper
sanction because, pursuant to the rules, there are only two grounds
for barring a party from rejecting an award--when a party was
either not present at the hearing either in person or by counsel or
where a party failed to participate in the hearing in good faith
and in a meaningful manner and the arbitration panel makes such an
express finding--and the Herreras' actions did not fall within
either of these two categories. The Herreras also contended that
Rule 237 did not require a party to provide an interpreter, but
rather only that the party "appear" at the proceedings. An
affidavit was attached to the Herreras' response from the Herreras'
attorney, Molly Wood, which stated that Wood and the Herreras were
present at the arbitration hearing, Nicandro Herrera spoke broken
English, and Wood actively participated in the arbitration hearing
"by making an opening statement, cross-examining the Plaintiff and
making a closing argument denying Defendants' negligence and
responsibility for the Plaintiff's property damage."
In reply to the Herreras' response to its motion, West Bend
argued that the Herreras' attorney was aware that Nicandro did not
speak English; West Bend was not aware that Nicandro did not speak
English; the Herreras had a duty to ensure their availability to
testify and to provide a translator; the Herreras' attorney did not
suggest at the hearing that Nicandro could speak broken English but
rather stated that he only spoke Spanish; and Nicandro never spoke
in English at the hearing. West Bend contended that because
Nicandro did not testify at the arbitration hearing, he should be
precluded from testifying at the trial. West Bend further
contended that Nicandro's failure to testify violated Rule 237
because this rule "requires the appearance of the party for
purposes of said party being a witness," and Nicandro's "failure to
testify [was] therefore a violation of the spirit of Rule 237."
West Bend argued that because of this "violation," the trial court
could exclude or debar Nicandro from testifying at trial.
On September 15, 1995, the trial court entered an order,
ruling that Nicandro Herrera "failed to participate in a meaningful
manner and in good faith by failing to testify at the arbitration
hearing in both Plaintiffs case pursuant to plaintiffs 237 notice
and in Defendants case in chief"; that Nicandro was therefore
"debarred from Rejecting the arbitration award"; "and judgment on
the award in the amount of $3,952.00 plus costs is entered in favor
of Plaintiff [West Bend] and against the Defendants [Herreras]."
The record does not include any transcripts of the hearing on West
Bend's motion. This appeal followed.
The Herreras contend that they could not be barred from
rejecting the arbitration award under Supreme Court Rule 91(b)
because "the arbitration panel alone has the power to make a
determination" in its award that they failed to participate in the
hearing in good faith and in a meaningful manner, and that
"[n]othing in that rule extends that power to the court."
According to the Herreras, absent a finding of bad faith
participation, "[c]learly Supreme Court Rule 91(b) was not intended
to allow the court to make its own independent finding of bad faith
participation," especially in light of the fact that the trial
court was not in any position to evaluate their conduct at the
arbitration hearing because it had no transcripts from the hearing
upon which to base any ruling.
West bend argues that "there is no conjunctive requirement [in
Rule 91(b)] that an arbitration panel finding of bad faith
participation must precede a lower court's ability to debar a
rejection [of an arbitration award]," but rather, Rule 91(b) only
indicates that such a finding by the arbitration panel is prima
facie evidence that a party failed to participate in good faith or
in a meaningful manner, which "indicates the intent of *** Rule
90(g) for a hearing to be conducted in which evidence is presented
for the trial court to make its ultimate decision as to whether or
not bad faith participation occurred and whether or not a debarment
of rejection is justified."
"Interpreting Supreme Court Rules involves the same principles
which are applicable when interpreting statutes. The primary rule
of statutory interpretation is that the court should ascertain and
give effect to the intent of the legislature." Furniss v. Resnick,
286 Ill. App. 3d 318, 19, 676 N.E.2d 8 (1997). Supreme Court Rule
93(a) sets forth the procedure by which a party may reject an
arbitration award. The rule provides that "[w]ithin 30 days after
the filing of an award with the clerk of the court, and upon
payment of the sum of $200 to the clerk of the court, any party who
was present at the arbitration hearing *** may file with the clerk
a written notice of rejection of the award and request to proceed
to trial." 145 Ill. 2d R. 93(a). The rule also provides that
"[t]he filing of a notice of rejection shall not be effective as to
any party who is debarred from rejecting an award."
Supreme Court Rule 91 specifically provides for two
circumstances when a party may be barred from rejecting an
arbitration award. Subsection (a) provides that if a party fails
to be present, "either in person or by counsel," at an arbitration
hearing, that party waives the right to reject the award. 145 Ill.
2d R. 91(a). Subsection (b), which prescribes the degree of a
party's participation at the hearing, provides:
"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 the 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), including, but not
limited to, an order debarring that party from
rejecting the award, and costs and attorney
fees incurred for the arbitration hearing and
in the prosecution of the petition for
sanctions, against that party." (Emphasis
added.) 145 Ill. 2d R. 91(b).
The Committee Comments following the rule indicate that subsection
(b) was added in 1993 because "there were complaints by arbitrators
that some parties and lawyers would merely attend but refuse to
participate in arbitration." (Emphasis added.) Subsection (b) was
included to "discourage such misconduct." The comments also
explain that:
"Arbitration must not be perceived as
just another hurdle to be crossed in getting
the case to trial. Good-faith participation,
as required by this rule, was therefore
intended to assure the integrity of the
arbitration process." 145 Ill. 2d R. 91(b)
Committee Comments.
We decline to hold that Rule 91(b) requires that the
arbitration panel must first make a finding of failure to
participate in a hearing in good faith and in a meaningful manner
before a court can review the issue. As West Bend argues, Rule
91(b) only states that an arbitration panel's finding of bad faith
is prima facie evidence that a party failed to participate in good
faith or in a meaningful manner. Nowhere does the rule state that
the arbitration panel must first make such a finding before a court
can review the issue. Indeed, the committee comments following the
rule emphasize the significance of good faith participation and
thus imply that review of this issue by the courts is desirable.
In the present case, however, the arbitration panel did not make a
finding of bad faith, and no transcripts exist from the hearing.
Therefore, the trial court did not have a basis to determine
whether the Herreras failed to participate in the hearing in good
faith or in a meaningful manner. As this court has stated, "[t]he
arbitration panel members are in the best position to judge the
participation of the parties before them," and "[w]ithout knowing
everything that transpired during an arbitration hearing, it is
difficult for the circuit court to make a judgment call without the
assistance of findings of the arbitration panel members." Weber v.
Bednarczyk, 287 Ill. App. 3d 458, 463, 678 N.E.2d 701 (1997).
In addition, we find that the fact that Nicandro Herrera could
not speak English and did not appear at the hearing with a
translator, standing alone, did not constitute failure to
participate in the hearing in good faith and in a meaningful
manner. The Herreras appeared at the hearing with their attorney,
Molly Wood, and Wood's affidavit indicated that she made an opening
statement, cross-examined plaintiff, and made a closing argument in
behalf of the Herreras. If West Bend believed that Nicandro's
failure to provide a translator constituted bad faith, it should
have requested that the arbitration panel make findings on the
issue. As stated above, the arbitration panel is in the best
position to determine whether a party has failed to participate in
an arbitration hearing in good faith or in a meaningful manner, and
without an adequate record of the proceedings or a finding by the
panel of a failure to participate in good faith and in a meaningful
manner, the trial court cannot make its own determination of bad
faith participation.
The Herreras next contend that the trial court could not bar
them from rejecting the award under Supreme Court Rules 90(g) or
237 because they both appeared at the hearing, and nothing in the
rules provide that they are required to bring an interpreter, as
argued by West Bend. West Bend contends that the trial court
properly barred the Herreras from rejecting the arbitration award
pursuant to Supreme Court Rules 90(g) and 237 because Nicandro's
inability to speak English and the Herreras' appearance without an
interpreter was "no different than electing not to be present at
the arbitration hearing at all."[fn1]
Illinois Supreme Court rule 90(g) provides:
"The provisions of Rule 237, herein,
shall be equally applicable to arbitration
hearings as they are to trials. The presence
of a party may be waived by stipulation or
excused by court order for good cause shown
not less than seven days prior to the hearing.
Remedies upon a party's failure to comply with
notice pursuant to rule 237(b) may include an
order debarring that party from rejecting the
award." 145 Ill. 2d R. 90.
Rule 237 provides:
"(a) Service of Subpoenas. Any witness
shall respond to any lawful subpoena of which
he or she has actual knowledge ***.
(b) Notice of Parties et al. The
appearance at the trial of a party or a person
who at the time of trial is an officer,
director, or employee of a party may be
required by serving the party with a notice
designating the person who is required to
appear." (Emphasis added.) 134 Ill. 2d R.
237.
We reject West Bend's argument that the Herreras failed to
comply with Rule 237, thereby triggering imposition of the
debarment sanction of Rule 90(g). West Bend's argument, that the
Herreras' appearance was in effect no appearance "at all,"
basically amounts to the same argument it made that their
participation at the arbitration hearing was not in good faith and
in a meaningful manner. Rule 237 simply requires that a witness
"appear," which the Herreras did; there is no provision that the
witness provide an interpreter, if one is necessary. We therefore
hold that Nicandro Herrera properly complied with Supreme Court
Rule 237 because he appeared at the arbitration hearing and,
therefore, was not subject to the application of the debarment
sanction of Rule 90(g).
We briefly note that the cases relied on by West Bend in
support of its Rule 237 argument are distinguishable from the
present case. In Smith v. Johnson, 278 Ill. App. 3d 387, 662 N.E.2d 531 (1996), and Williams v. Dorsey, 273 Ill. App. 3d 893,
652 N.E.2d 1286 (1995), the defendants, who had been properly
served with Rule 237(b) notices to appear, failed to appear at
their arbitration hearings and were subsequently debarred from
rejecting the arbitration awards, whereas in the present case, both
Nicandro and Francisco did appear at their arbitration hearing. In
Jara v. Municipal Court for the San Antonio Judicial District of
Los Angeles County, 578 P.2d 94 (1978), a non-English speaking
defendant argued that he was entitled to a court-appointed
interpreter. The Jara court held that California courts are not
required to appoint interpreters at public expense to assist
litigants, and stated that non-English speaking litigants have
"alternative sources for language assistance to communicate with
counsel and other community professionals and officials," without
stating which party should provide an interpreter if one is
required. The Jara court further stated that the defendant's
appearance at trial without the assistance of an interpreter did
not deprive the defendant of a meaningful opportunity to be heard.
Jara, 578 P.2d at 97. We briefly note that not only is Jara a
California case and thus in no way controlling, but, in the present
case, the same factual situation or issues are not presented.
Rather, West Bend argues that the Herreras, not the court, should
have provided their own interpreter and that the Herreras did not
meaningfully participate in the arbitration hearing.
The Herreras next contend that no grounds existed for barring
their rejection of the arbitration award because they complied with
West Bend's Rule 237(b) notice to appear and the arbitration panel
did not make a finding that they failed to participate at the
hearing in good faith and in a meaningful manner. The Herreras
argue that the Supreme Court rules do not list any other grounds
for debarring a party from rejecting an arbitration award and,
therefore, "the rules implicitly exclude all other grounds for
barring rejection of an arbitration award." West Bend makes the
same arguments as to this issue as it made to the issues discussed
above. We are unable to say, under the facts of this case, that
grounds existed for the trial court's imposition of debarment as a
sanction against the Herreras in light of the absence of a
transcript of the arbitration hearing and/or a finding by the
arbitration panel that the Herreras failed to participate in the
arbitration hearing in good faith and in a meaningful manner.
Accordingly, we hold that the trial court erred in debarring the
Herreras from rejecting the arbitration award, and the order
striking the rejection of the arbitration award is reversed and
vacated.
Based on our holding, we need not address the Herreras'
remaining arguments.
For the reasons stated, we therefore reverse the circuit
court's order, and remand the cause for further proceedings.
Reversed and remanded.
WOLFSON, P.J., and CERDA, J., concur.
[fn1]West Bend's motion to debar was against Nicandro only.
It is unclear from the record whether or not Francisco testified.