Allstate Insurance Co. v. Avelares

SECOND DIVISION
APRIL 14, 1998
No. 1-97-0795

ALLSTATE INSURANCE COMPANY, ) APPEAL FROM THE
as Subrogee of ZEE CLEANERS ) CIRCUIT COURT OF
and AQUILINA ZULAICA, ) COOK COUNTY, ILLINOIS
)
Plaintiff-Appellee, )
) No. 95 M1 21181
v. )
)
JOSE R. AVELARES, ) THE HONORABLE
) SIDNEY A. JONES, III,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
Pursuant to proceedings had in the case sub judice,
defendant filed an appearance, made a demand for a jury and paid
the jury fee. Also, since the amount claimed in this civil
action was not in excess of $30,000, the case was assigned to
mandatory arbitration pursuant to Cook County Circuit Court Rule
18.3(b) (Cook Co. Cir. Ct. R. 18.3(b)(eff. Oct. 2, 1995.)
Upon arbitration, the arbitrators found against the
defendant in the amount claimed. The arbitrators further found no
meaningful participation by defendant, who did not appear except
through his attorney. Following arbitration, defendant filed a
rejection of the arbitration award and paid the rejection fee.
Subsequent thereto, the trial court ordered that defendant's
rejection be stricken.
Thereafter, defendant's attorney requested reimbursement of
the jury demand fee and the arbitration rejection fee. However,
the defendant's request was denied. Defendant appeals.
We affirm.
BACKGROUND
Allstate Insurance Company, as subrogee of plaintiffs Zee
Cleaners and Aquilina Zulaica, filed its complaint against Jose
R. Avelares on October 25, 1995. The complaint alleged that on
January 29, 1995, as a result of the direct and proximate
negligence of the defendant, the defendant's motor vehicle
collided with the automobile of plaintiff's subrogor, causing
damages. The total amount expended by plaintiff and its subrogor
was the sum of $2,268.96, and plaintiff claimed damages in the
sum of $2,268.96.
On May 2, 1996, the defendant was granted leave to appear
and file a jury demand within 28 days. Defendant then timely
filed his appearance and jury demand on May 22, 1996, and paid
the applicable fee. On July 8, 1996, the case was assigned to
mandatory arbitration. Arbitration was set for November 14, 1996,
and the case was arbitrated on the same date, whereupon the
following signed award was entered by the arbitrators:
"We find in favor of Allstate Insurance Co. a/s/o Zee
Cleaners and Aquilina Zulaica in the amount of $2268.96 and
against Def. Jose R. Avelares. The panel finds no meaningful
participation of Jose R. Avelares, who did not appear,
except through his Atty. who indicated that he had said he
would attend in which a 237 had required his presence.
Atty. for Alvares def. made no obj. to proceeding without
defendant."

The defendant filed a rejection of the arbitration award on
December 5, 1996, and paid the requisite rejection fee. On
December 26, 1996, plaintiff noticed up a motion to bar the
defendant's rejection. Plaintiff's motion was stricken due to
plaintiff's counsel's failure to appear. On January 21, 1997, the
plaintiff moved to bar the defendant from rejecting the award for
failure to participate in good faith in accordance with Supreme
Court Rule 91(b). 145 Ill. 2d R. 91(b). Plaintiff's motion
contained allegations that, on November 14, 1996, when the cause
was set for mandatory arbitration, defendant failed to appear
without prior notice to plaintiff. On January 21, 1997, the court
ordered that the defendant's rejection be stricken, barring the
defendant from rejecting the award. On the same date, the court
also entered judgment on the award.
The defendant's attorney requested reimbursement of the
statutory jury demand fee and the arbitration award rejection
fee. The defendant's request was denied and, on February 19,
1997, defendant filed his notice of appeal.
OPINION
On appeal, the plaintiff has not filed an appellee's brief.
While this court will not act as an advocate for the appellee,
the record is simple, and the claimed errors are such that this
court can decide them on the merits without the aid of an
appellee's brief. Virzint v. Beranek, 202 Ill. App. 3d 511, 512,
559 N.E.2d 1186 (1990); First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).
Pursuant to the Illinois Supreme Court rules, all civil
cases, including jury cases, must proceed to mandatory
arbitration if the claim is an amount not in excess of an amount
designated by the county or circuit court. 86(b). 134 Ill. 2d R.
86(b). Pursuant to the rules of the circuit court of Cook County,
civil actions for an amount not in excess of $30,000 are subject
to mandatory arbitration. Cook Co. Cir. Ct. R. 18.3(b) (eff.
Oct. 2, 1995.) Hence, all small claims actions are subject to
arbitration.
The Illinois Code of Civil Procedure provides that a party
desirous of a trial by jury must file a jury demand. 735 ILCS
5/2-1105 (West 1992). The fee for a jury demand in a small claims
case is $12.50.
The defendant's December 5, 1996, filing of a rejection of
the arbitration award was filed pursuant to Supreme Court Rule
93(a). This rule provides in pertinent part:
"Within 30 days after the filing of an award with the clerk
of the court, and upon payment to the clerk of the court of
the sum of $200 for awards of $30,000 or less ***, any party
who was present at the arbitration hearing, either in person
or by counsel, may file with the clerk a written notice of
rejection of the award and request to proceed to trial,
together with a certificate of service of such notice on all
other parties. *** The filing of a notice of rejection
shall not be effective as to any party who is debarred from
rejecting an award." (Emphasis added.) 166 Ill. 2d R. 93(a).

Defendant's absence from the arbitration award hearing
resulted in a finding that he had failed to participate pursuant
to the provisions of Supreme Court Rule 91(b). This rule
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 prosecuting of the petition for sanctions,
against that party." (Emphasis added.) 145 Ill. 2d R. 91(b).

Relative to defendant's argument that the court erred by
denying defendant's requested reimbursement of fees in the case
sub judice, we note that payment of the $200 rejection fee is a
prerequisite for proceeding to further trial. Killoren v. Racich,
260 Ill. App. 3d 197, 198, 632 N.E.2d 621, 622 (1994). Defendant
contends that since he was compelled to pay the $200 rejection
fee before he knew that he would not be allowed to have a trial
in any event, he should be reimbursed for the paid rejection
fee. In our view, however, although this contention might appear
on its face to have substance, it loses its apparent substance
when the language and purpose the mandatory arbitration
provisions of the applicable supreme court and circuit court
rules are considered in the context of the facts of the instant
case.
Pertinent for our consideration is Supreme Court Rule 91(b),
providing that "[a]ll parties to the arbitration hearing must
participate in the hearing *** in a meaningful manner. If a panel
of arbitrators unanimously finds that a party has failed to
participate *** in good faith ***, the panel's finding *** shall
be stated on the award. *** [A]nd 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 ***." (Emphasis
added.) 145 Ill. 2d R. 91(b).
Significantly, we note that the committee comments to
Supreme Court Rule 91(b) state, in part:
"Prior to the adoption of these sanctions, there were
complaints by arbitrators that some parties and lawyers
would merely attend but refuse to participate in
arbitration. This paragraph was adopted to discourage such
misconduct." 145 Ill. 2d R. 91(b), Committee Comments.

Also:

"[p]arties and lawyers must not be allowed to abuse the
arbitration process so as to make it meaningless." 145 Ill.
2d R. 91(b), Committee Comments.

Further:

"[a]rbitration must not be perceived as just another hurdle
to be crossed in getting the case to trial. Good-faith
participating, as required by this rule, was therefore
intended to assure the integrity of the arbitration
process." 145 Ill. 2d R. 91(b), Committee Comments.


Additionally, relative to whether or not the $200 fee should
be recoverable as a taxable cost, we note that the committee
comments indicate that "Pennsylvania, as does New York and Ohio,
provides by rule that the costs assessed on the rejecting party
shall apply to the cost of arbitrators fees and shall not be
taxed as costs or be recoverable in any proceeding." 145 Ill. 2d
R. 93(a), Committee Comments.
Then too, we note that the Supreme Court Rules Committee's
preference on whether the $200 fee should be recoverable as a
taxable cost is that "the rule in Illinois be stated similar to
that of Pennsylvania; to wit, the sum so paid to the clerk shall
not be taxed as costs or coverable in any proceeding." 145 Ill.
2d R. 93(a), Committee Comments.
We also agree with comments of the Illinois Supreme Court
Rules Committee that "arbitration is a dispute resolution process
under the auspices of the court. *** Arbitration must not be
perceived as just another hurdle to be crossed in getting a case
to trial. Good faith participation [is required in order] to
assure the integrity of the arbitration process." 145 Ill. 2d R.
91(b), Committee Comments.
Further, while the comments of the Supreme Court Rules
Committee are not binding, we do take note of the comments, and,
in instances where, in our view, the Committee comments have
merit, we are inclined to adopt them. In our view, the committee
comments to the Illinois Supreme Court rules applicable to this
appeal have merit and should receive deference in this case.
Accordingly, we adopt them.
Thus, we hold that the failure of the defendant to
participate in the hearing in good faith warranted denial by the
trial court of defendant's request for reimbursement of the
statutory jury demand fee and the arbitration award rejection
fee.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
McNULTY, P.J., and TULLY, J., concur.