State Farm Insurance Co. v. Gebbie

May 19, 1997   

                               No. 1-96-2774



STATE FARM INSURANCE COMPANY a/s/o      )  Appeal from the
JONATHAN BLAZE,                         )  Circuit Court of
                                        )  Cook County.
     Plaintiff-Appellee,                )  
                                        )
               v.                       )  
                                        )  
CHRISTIAN GEBBIE,                       )  Honorable
                                        )  Sidney A. Jones, III,
     Defendant-Appellant.               )  Judge Presiding.



     JUSTICE GALLAGHER delivered the opinion of the court:

     Defendant Christian Gebbie appeals from an order of the
circuit court of Cook County which barred him from rejecting an
arbitration award.
     The common law record on appeal establishes that on August
16, 1994, plaintiff State Farm Insurance Company, as subrogee of
Jonathan Blaze, filed a complaint against defendant seeking
recovery of $11,546.32, the property damage to Blaze's vehicle. 
The complaint alleged that on May 28, 1993, defendant negligently
drove his vehicle in the wrong direction on Wolfram Street in
Chicago, a one-way designated street, at an improperly high
speed, failed to yield the right-of-way at the intersection with
Mildred Street, and collided with Blaze's vehicle, which was
being driven by Chris Hudquist.
     Defendant filed an unsigned third-party complaint for
contribution, alleging that Hudquist operated Blaze's vehicle in
a negligent manner.  The circuit court subsequently granted
plaintiff's motion to strike that pleading.  In October 1995,
plaintiff filed a request to admit facts, a request to produce,
and interrogatories.  On January 8, 1996, the court ordered that
discovery be completed by January 26 and assigned the cause to
mandatory arbitration.  On January 16, plaintiff filed a motion
to compel defendant to answer discovery or be barred from
testifying or presenting evidence at trial and arbitration.  The
court granted defendant until February 20, 1996, to comply with
outstanding written discovery and ordered that if he failed to
comply, he would be barred from presenting evidence at
arbitration and trial.  On February 7, 1996, plaintiff filed
another notice to produce pursuant to Supreme Court Rule 237 (134
Ill. 2d R. 237), specifically requesting that defendant appear
for adverse examination at the arbitration hearing pursuant to
section 2-1102 of the Code of Civil Procedure (735 ILCS 5/2-1102
(West 1994)).  The record on appeal contains plaintiff's answers
to defendant's interrogatories but does not contain defendant's
completed written discovery documents.  Defendant states on
appeal that he was barred from presenting any evidence at the
arbitration, and plaintiff states that defendant did not complete
discovery or seek to vacate the court's order barring him from
presenting evidence.  
     Defendant was represented by counsel at the arbitration
hearing on May 23, 1996, but did not attend personally.  A panel
of three arbitrators found in favor of plaintiff and against
defendant in the amount of $11,000.  Plaintiff then filed a
motion to bar defendant from rejecting the arbitration award
based on defendant's failure to appear at the arbitration hearing
in violation of Supreme Court Rule 237(b), which the circuit 
court granted after a hearing.
     Defendant contends on appeal that the circuit court
erroneously barred him from rejecting the arbitration award
because his counsel participated in good faith, and that the
sanction was excessive, violates the Illinois Constitution and
the enabling statute and punishes the wrong party, the insurance
company, in violation of public policy.  We disagree.  
     Supreme Court Rule 237(b) provides that the appearance of a
party may be required by serving the party with notice which
designates the person who is required to appear.  134 Ill. 2d R.
237(b).  If a party refuses to comply with discovery rules or an
order of the circuit court, the court may enter any order that is
just, including enumerated remedies.  134 Ill. 2d 219(c). 
Supreme Court Rule 90(g), regarding mandatory arbitration,
provides that among remedies for a party's failure to comply with
notice pursuant to Supreme Court Rule 237(b) is an order barring
that party from rejecting the award.  145 Ill. 2d R. 90(g);
Williams v. Dorsey, 273 Ill. App. 3d 893, 901, 903 (1995).  A
party's failure to participate in an arbitration hearing in good
faith and in a meaningful manner provides a separate basis for
barring him from rejecting an arbitration award.  145 Ill. 2d R.
91(b); Smith v. Johnson, 278 Ill. App. 3d 387, 389 (1996).      
     We reject defendant's argument that Supreme Court Rule 90(g)
is unconstitutional.  This court has previously decided that
issue adversely to defendant's position.  Williams, 273 Ill. App.
3d at 904.  
     We also reject defendant's argument that Rule 90(g) violates
section 2-1004A of the Code of Civil Procedure (735 ILCS 5/2-
1004A (West 1994) (providing authorization for a court to send a
case to arbitration and for a party to reject the award) by
exceeding its authority pursuant to that section.  Defendant
contends that the supreme court exceeded its authority when it
enacted Rule 90(g) providing that a party may be barred from
rejecting the arbitration award.  Defendant argues that any power
"which derives its authority from the legislature is confined to
the provisions within the enabling statute."  It is the Illinois
Constitution, however, rather than the legislature, which clearly
authorizes the supreme court to promulgate procedural rules. 
O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 280-81
(1986).  Moreover, the statute governing mandatory arbitration
(735 ILCS 5/2-1001A et seq. (West 1994)) provides that our
supreme court may promulgate rules and adopt procedures to
establish and maintain mandatory arbitration.  735 ILCS 5/2-
1001A, 2-1002A (West 1994).  In addition, section 2-1004A,
although providing for a party's rejection of an award, also
recognizes the supreme court's authority to limit this right as
"prescribed by rule."  Rule 90(g) does not bar a litigant's
access to a trial by jury unless he himself loses that right by
failing to comply with authorized rules.  Williams, 273 Ill. App.
3d at 904.  Thus, the requirement that a litigant must comply
with a Rule 237(b) notice or risk being barred from rejecting an
arbitration award is a properly authorized procedural
requirement.  Furthermore, if a supreme court rule and a statute
on the same subject conflict, the rule prevails.  O'Connell, 112 Ill. 2d  at 281.  Thus, defendant's argument has no merit.
     Defendant's argument that barring him from rejecting the
award punishes the wrong party, the insurance company, is
supported by conclusional statements only, and is unsupported by
citation to relevant authority in violation of Supreme Court Rule
341(e)(7) (134 Ill. 2d R. 241(e)(7)), and we thus consider the
argument waived.  People v. Williams, 267 Ill. App. 3d 82, 86
(1994).
     In this case, despite notice pursuant to Supreme Court Rule
237(b), defendant did not appear in person at the arbitration
hearing.  Thus, the circuit court had authority pursuant to
Supreme Court Rule 90(g) to bar defendant from rejecting the
award.  The fact that defendant's attorney was present at the
arbitration hearing did not preclude the circuit court's entry of
an order barring defendant from rejecting the award.  Williams,
273 Ill. App. 3d at 900.  Defendant's argument that because he
was barred from presenting evidence at the arbitration, he "did
all he was allowed to do at the arbitration" by being present
through counsel is unavailing.  Defendant's wilful violation of
discovery cannot excuse his failure to appear personally at the
arbitration hearing.  We note that on February 7, 1996, plaintiff
specifically requested that defendant appear for adverse
examination pursuant to section 2-1102 of the Code of Civil
Procedure (735 ILCS 5/2-1102 (West 1994) (party may be called and
examined as if under cross-examination)).  Subsequently,
defendant violated the court's order that he comply with
plaintiff's written discovery by February 20, 1996, or be barred
from presenting evidence at the arbitration or trial.  Defendant
claims that the court's order prevented him from testifying "in
either the plaintiff's or the defendant's case."  However, the
court's order stated only that if defendant failed to comply with
plaintiff's written discovery by February 20, 1996, "defendant
will be barred from presenting evidence at arbitration and/or
trial."  Thus, although the court barred defendant from
presenting a case, it did not bar plaintiff from calling and
examining him as an adverse party.  
     The court's discretion in determining what sanction is
appropriate will not be disturbed on review absent an abuse of
discretion.  Kellett v. Roberts, 281 Ill. App. 3d 461, 466
(1996).  We find no abuse of discretion in this case; the circuit
court's order barring defendant from rejecting the arbitration
award was an appropriate sanction within the court's authority
and discretion.  Smith, 278 Ill. App. 3d at 390-92; Williams, 273
Ill. App. 3d at 900-01.
     Finally, we note that the law firm representing defendant in
this case also represented the appellants in Williams v. Dorsey,
a case which is dispositive of issues defendant raises here. 
Yet, despite its affirmative duty according to the Rules of
Professional Conduct to cite to this court such adverse legal
authority (134 Ill. 2d R. 3.3(a)(3)), it failed to do so in its
opening brief and failed in its reply brief to respond to
plaintiff's citation of the case.  
     Accordingly, the order of the circuit court is affirmed.
     Affirmed.
     CAMPBELL, P.J. and O'BRIEN, J. concur.