Nix v. Whitehead

No. 1-05-1412
September 5, 2006

MICHELLE NIX, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 03 M1 305264
)
GARRICK WHITEHEAD and BRUCE WHITE, ) Honorable
) Moira Johnson,
Defendants-Appellees. ) Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court:

Plaintiff Michelle Nix brought this negligence action against defendants Garrick

Whitehead and Bruce White. Following mandatory arbitration, the circuit court of Cook

County entered judgment on the arbitration award in favor of defendants and against

plaintiff. On appeal, plaintiff contends that the trial court erred in barring her rejection of

the award. Plaintiff also argues that the trial court erred in correcting the award to

reflect that it was in favor of both Whitehead and White rather than only White.

Plaintiff=s suit arose from an automobile accident that occurred on March 23,

2002. According to her complaint, plaintiff was a passenger in a vehicle driven by

defendant White when a vehicle driven by defendant Whitehead collided with the White

vehicle. Apparently, the two vehicles were traveling southbound in the same lane, with

White in front and Whitehead behind him. Traffic began to slow, and the Whitehead

vehicle struck the White vehicle from behind. In her complaint, which was filed in

December 2003, plaintiff alleged negligence on the part of both White and Whitehead
No. 1-05-1412

and claimed that she was Aseverely injured@ as a result. In his answer to plaintiff=s

complaint, Whitehead admitted negligence.

In May 2004, the trial court assigned the cause to mandatory arbitration. Prior to

the arbitration hearing, which was set for February 7, 2005, plaintiff served on both

defendants a Supreme Court Rule 90(c) package containing documents she intended to

offer as evidence at the hearing. Official Reports Advance Sheet No. 26 (December 24,

2003), R. 90(c), eff. January 1, 2004. On the day of the hearing, which was scheduled

to begin at 8:30 a.m., plaintiff and her attorney were about 17 minutes late, which was

two minutes past the 15-minute grace period. Plaintiff asserts that she left her home

that morning at 7:35 a.m., which normally would have allowed her plenty of time to

reach the Mandatory Arbitration Center in downtown Chicago by 8:30 a.m. According to

plaintiff, however, traffic that morning was significantly heavier and slower than usual,

and she did not arrive at the arbitration center until 8:40 a.m. Plaintiff then had to wait in

line to check in at the security desk before proceeding to the hearing room. Plaintiff=s

visitor=s pass, which is included in the record, indicates that she checked in at A8:45

a.m.@ Affidavits of both plaintiff and her attorney state that they arrived at the hearing

room at 8:47 a.m.

Plaintiff asserts that, when they arrived at the hearing room, they saw defendant

White=s attorney, who was leaving at that time. White=s attorney told plaintiff=s attorney

that White had arrived at the hearing room at 8:45 a.m. and was told by the arbitrators

that he was too late. White apparently left at that point. Plaintiff=s attorney then spoke

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No. 1-05-1412

with the arbitrators, who informed her that she had arrived too late to present plaintiff=s

case.

The arbitrators entered an award in favor of defendant White. The award

indicated that attorneys for White and Whitehead were present and that White himself

Aappeared late after [the] 8:45 termination of [the] hearing.@ The award also stated that

neither plaintiff nor defendant Whitehead was present, Aalthough both had been served

with a [Supreme Court Rule] 237 notice@ to appear. 166 Ill. 2d R. 237. According to the

award, the hearing began at 8:45 a.m. and ended at 8:45 a.m. The award also

appeared to state that Aneith[er] party@ participated in good faith. The space for findings

in support of this assertion was left blank.

On February 18, 2005, plaintiff rejected the arbitration award. Ten days later,

defendant White moved to bar plaintiff from rejecting the award. White alleged that

plaintiff and her attorney failed to appear at the arbitration hearing before it was

adjourned and that, under Supreme Court Rule 91(a) (145 Ill. 2d R. 91(a)), this failure to

be present constituted Aa waiver of the right to reject the award and a consent to the

entry by the court of a judgment on the award.@ 145 Ill. 2d R. 91(a). White also alleged

that plaintiff failed to Aparticipate in the hearing in good faith and in a meaningful

manner@ (145 Ill. 2d R. 91(b)), in violation of Supreme Court Rule 91(b). Defendant

Whitehead subsequently filed a brief in support of White=s motion. Whitehead also filed

a motion to correct the arbitration award in favor of defendant White to reflect that the

award was also in favor of defendant Whitehead.

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On April 25, 2005, following a hearing, the trial court granted the motion to bar

plaintiff from rejecting the award. The court stated:

AThe Supreme Court rules require that a party who is going to reject an

award either be at the [hearing] in person or through Counsel. The Plaintiff=s

evidence indicates at 8:45 she was being checked in and received a badge. At

the same time, the arbitrators waited the allotted 15 minutes. They have been

instructed not to wait more than 15 minutes, and they terminated the hearing at

8:45. That is exactly what they were supposed to do. At the time they

terminated, both attorneys for both Defendants were present in the room. *** If

the party is not present in person or by Counsel, the party cannot reject the

Defendant=s motion to Bar. The [motion to bar] is granted because the Plaintiff

has no standing to reject the arbitration award.@

The trial court also granted defendant Whitehead=s motion to correct the award

and ordered the award corrected to reflect that it was in favor of both defendants and

against plaintiff. The trial court entered judgment on the award in favor of defendants

White and Whitehead, and against plaintiff, in the amount of A0" dollars. The court

made no specific finding that plaintiff failed to participate in the arbitration hearing in

good faith.

Plaintiff timely filed a notice of appeal.

DISCUSSION

Under Supreme Court Rule 91, there are two grounds for barring a party from

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rejecting an arbitration award: (a) a failure to appear at the arbitration hearing, and (b) a

failure to participate in the hearing in good faith and in a meaningful manner. Zietara v.

DaimlerChrysler Corp., 361 Ill. App. 3d 819, 822 (2005), citing 145 Ill. 2d Rs. 91(a), (b).

Rule 91(a), which deals with the failure to be present at a hearing, provides, in pertinent

part:

AThe arbitration hearing shall proceed in the absence of any party who,

after due notice, fails to be present. *** The failure of a party to be present, either

in person or by counsel, at an arbitration hearing shall constitute a waiver of the

right to reject the award and a consent to the entry by the court of a judgment on

the award.@ 145 Ill. 2d R. 91(a).

This rule does not require that both a party and the party=s lawyer appear at the hearing

in order to preserve the right to reject an award. It requires only that one of the two be

present. If either the party or her counsel appears at the hearing, Rule 91(a) does not

authorize a waiver of the right to reject the award. Schmidt v. Joseph, 315 Ill. App. 3d

77, 82 (2000).

Rule 91(b) deals with a party=s failure to participate in an arbitration hearing in

good faith. Under Rule 91(b), where there is a finding to this effect, a trial court may

debar the party from rejecting an arbitration award. 145 Ill. 2d R. 91(b).

On appeal, plaintiff in the case at bar argues that it was error for the trial court to

bar her from rejecting the arbitration award. Plaintiff asserts, as she did in the trial

court, that she and her counsel arrived at the hearing room shortly after the hearing had

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No. 1-05-1412

been adjourned, while the arbitrators were still present. In plaintiff=s view, she Ashowed

up for the arbitration hearing@ and therefore did not fail to appear and did not waive her

right to reject the arbitration award under Rule 91(a). With regard to whether she

participated in the hearing in good faith, plaintiff asserts that she Awas ready to testify

when she arrived at the arbitration hearing but the arbitrators prohibited her from doing

so.@ According to plaintiff, her actions Aexhibited a clear respect for the arbitration

process,@ and her participation was in good faith.

Defendant Whitehead 1 counters that the trial court was correct in barring

plaintiff=s rejection of the arbitration award. According to defendant, plaintiff forfeited her

right to reject the award when both she and her counsel failed to make a timely

appearance at the arbitration hearing. In defendant=s view, this tardiness in arriving at

the hearing room constituted a failure to be present under Rule 91(a). Defendant

argues, in addition, that plaintiff did not participate in the hearing in good faith pursuant

to Rule 91(b). Defendant notes that A[p]laintiff and her counsel were both absent from

the hearing until after the arbitrators had waited the required time and terminated the

hearing.@ Defendant contends that because plaintiff and her counsel did not participate

in the hearing at all, they could not have participated in good faith.

Generally, the decision whether to bar a party from rejecting an arbitration award

is within the sound discretion of the trial court and will not be disturbed on appeal absent

1
Defendant White did not file a response brief in this appeal.

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No. 1-05-1412

an abuse of that discretion. Hinkle v. Womack, 303 Ill. App. 3d 105, 110 (1999).

However, the primary issue on appeal is whether plaintiff=s tardiness by a few minutes

constituted the Afailure of a party to be present@ within the meaning of Rule 91(a). This

is a question of law and is reviewed de novo. State Farm Insurance Co. v. Kazakova,

299 Ill. App. 3d 1028, 1031 (1998).

AInterpreting Supreme Court rules involves the same principles that are

applicable when interpreting statutes. [Citation.] The primary rule of statutory

construction is that the court should ascertain and give effect to the intent of the

legislature.@ Furniss v. Rennick, 286 Ill. App. 3d 318, 320 (1997). The most reliable

indicator of legislative intent is the language of the statute, which must be given its plain

and ordinary meaning. Stein v. Chicago Park District, 323 Ill. App. 3d 574, 577 (2001).

AThe dictionary can be used to ascertain the ordinary and popular meaning of words.@

Stein, 323 Ill. App. 3d at 577.

Rule 91(a): Failure to be Present at the Hearing

As noted, defendant argues that plaintiff=s failure to make a timely appearance at

the arbitration hearing meant that, for purposes of Rule 91(a), she was not present at

the hearing. Defendant cites to no authority holding that a party=s tardy arrival by a few

minutes constitutes a failure to be present at the hearing. Moreover, the text of Rule

91(a) itself makes no mention of a Atimely@ appearance. Instead, the rule simply states

that a party who fails Ato be present@ at the hearing has waived the right to reject the

award. APresent@ is defined as: Abeing in one place and not elsewhere[;] being within

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reach, sight, or call or within contemplated limits[;] being in view or at hand[;] being

before, beside, with, or in the same place as someone or something.@ Webster=s Third

New International Dictionary 1793 (2002). As an example of this meaning of Apresent,@

the definition states: Aboth men were [present] at the meeting.@ Webster=s Third New

International Dictionary 1793 (2002).

In view of the plain and ordinary meaning of Apresent,@ we conclude that a party

who is tardy by a few minutes, as was plaintiff in the case at bar, has not failed Ato be

present@ at the hearing, for purposes of Rule 91(a). This view is supported by an

examination of the nature of the 15-minute grace period.

In explaining its decision to bar plaintiff from rejecting the award, the trial court

emphasized the 15-minute grace period, implying that arriving within this period was a

requirement that plaintiff failed to meet. The court noted that at 8:45 on the morning of

February 7, 2005, the date set for the hearing, plaintiff Awas being checked in and

received a badge.@ The court added:

AAt the same time, the arbitrators waited the allotted 15 minutes. They have

been instructed not to wait more than 15 minutes, and they terminated the

hearing at 8:45. That is exactly what they were supposed to do.@

In the trial court=s view, the failure of plaintiff and her counsel to arrive at the hearing

within the grace period meant that neither of them was present, for purposes of Rule

91(a), and plaintiff forfeited her right to reject the award.

Similar to the trial court, defendant Whitehead refers to the 15-minute grace

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No. 1-05-1412

period as the Arequired time.@ In his brief to this court, defendant asserts that the

arbitrators Awaited the required amount of time@ and terminated the hearing Aafter the

requisite waiting period expired.@ (Emphases added.) As did the trial court, defendant

treats this grace period as a requirement that plaintiff failed to meet, and concludes that

plaintiff failed Ato be present@ (145 Ill. 2d R. 91(a)) at the arbitration hearing.

However, this court has held that the 15-minute grace period is a guideline rather

than a requirement. Zietara, 361 Ill. App. 3d at 823. In Zietara, the court rejected the

argument that arbitrators have no discretion to wait beyond the 15-minute period. The

court stated: A[T]he arbitrators were under the mistaken belief that they had no

discretion to hear the matter in this case and based their award on that erroneous

belief.@ (Emphases added.) Zietara, 361 Ill. App. 3d at 823. In reaching this

conclusion, the court noted that the grace period is mentioned in the Arbitrator

Reference Manual, a publication prepared by the Administrative Office of the Illinois

Courts. The October 1993 version of this manual states: A >[I]t is the practice to wait at

least 15 minutes after the scheduled hour before proceeding to an ex-parte hearing and

award.= @ (Emphasis added.) Zietara, 361 Ill. App. 3d at 823, quoting Arbitrator

Reference Manual, Administrative Office of the Illinois Courts (eff. October 1, 1993).

The court in Zietara also emphasized the manual=s disclaimer that it was A >offered as

general information and should not be relied upon as legal opinion or authority regarding

any specific matter.= @ Zietara, 361 Ill. App. 3d at 823, quoting Arbitrator Reference

Manual, Administrative Office of the Illinois Courts (eff. October 1, 1993).

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A subsequent edition of the Arbitrator Reference Manual also describes the 15-

minute grace period as a Apractice@ rather than a rule. This edition also includes the

following disclaimer: AAny material contained in this publication is offered as general

information and should not be relied upon as legal opinion or authority regarding any

specific matter.@ Arbitrator Reference Manual, Administrative Office of the Illinois

Courts (April 1997).

The nonmandatory nature of the 15-minute grace period strongly suggests that a

slight departure from this period, such as occurred in the case at bar, does not

constitute a failure to be present under Rule 91(a). If the period itself is not mandatory,

and Rule 91(a) makes no mention of timeliness of arrival, a party=s arriving a few

minutes after the end of this period does not necessarily mean that the party failed to be

present at the hearing.

In Zietara v. DaimlerChrysler Corp., 361 Ill. App. 3d 819 (2005), this court came

to a similar conclusion on similar facts. In Zietara, the arbitration hearing was set for

8:30 a.m., but the plaintiff and his counsel did not arrive until Asometime between 8:45

a.m. and 8:50 a.m., as the award [in favor of the defendant] was being entered.@

Zietara, 361 Ill. App. 3d at 821. At the time when the plaintiff and his counsel arrived,

the arbitrators were still present, as were counsel for the defendant and a defense

witness. The plaintiff asked that the hearing be commenced, but the arbitrators refused.

They told the plaintiff that, because he had arrived after the 15-minute grace period,

they no longer had discretion to proceed with the hearing. Zietara, 361 Ill. App. 3d at

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821. The arbitrators entered an award in favor of the defendant. They also found that

the plaintiff had failed to participate in the hearing in good faith, but provided no basis

for that finding in the award. The plaintiff subsequently filed a notice of rejection of the

award, and the defendant moved to bar the plaintiff=s rejection. Following a hearing, the

trial court barred the plaintiff from rejecting the award. The court asserted that the 15-

minute grace period was nondiscretionary and concluded that, because neither the

plaintiff nor his counsel arrived within that period, neither of them A >was present at the

time of the arbitration.= @ Zieterz, 361 Ill. App. 3d at 821. The trial court concluded that

rejection of the arbitration award A >is not allowed.= @ Zietara, 361 Ill. App. 3d at 821.

On appeal, this court reversed. The court noted that, although the plaintiff was

tardy, he arrived at the hearing before an award had been entered and before defense

counsel and the defendant=s witness had departed. The court stated: A[W]here plaintiff

arrived before the proceedings had concluded, we conclude that plaintiff did not fail to

appear, and did not automatically waive his right to reject the award under Rule 91(a).@

Zietara, 361 Ill. App. 3d at 822. The cause was remanded for a new arbitration hearing.

Zietara, 361 Ill. App. 3d at 823.

In the case at bar, both plaintiff and her counsel were tardy in arriving at the

hearing, as were both the plaintiff and his counsel in Zietara. In each case, the arrival

time was shortly after 8:45 a.m. Also, in each case the arbitrators were still present. In

addition, plaintiff=s counsel in the case at bar was told by the arbitrators that she had

arrived too late to present plaintiff=s case. This is similar to what occurred in Zietara,

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where the arbitrators told the plaintiff that they had no discretion to proceed with the

hearing. It is true that, in Zietara, the plaintiff arrived before defense counsel had

departed, while in the case at bar, at the time plaintiff arrived, counsel for defendant

Whitehead had already left, and counsel for defendant White was leaving. In our view,

this difference is of little significance and does not render the two cases dissimilar.

In light of Zietara, we conclude that it was error for the trial court in the case at

bar to preclude plaintiff from rejecting the award on the ground that plaintiff arrived a few

minutes after the end of the grace period. There is no support for this decision in the

language of Rule 91(a), nor can the decision be squared with the nonmandatory nature

of the grace period.

We emphasize the limited nature of our holding. We do not condone tardiness,

and our decision here is not meant to imply that a party who is significantly late in

arriving at the hearing would necessarily be beyond the scope of Rule 91(a). Such

tardiness could conceivably constitute a failure to be present under Rule 91(a), and

could result in debarment of the party from rejecting the arbitration award. However, we

do hold that the term Afailure of a party to be present@ in Rule 91(a) does not describe

the conduct of plaintiff in the case at bar, who was merely tardy by a couple of minutes

beyond the nonmandatory grace period, and who arrived while the arbitrators were still

present. Plaintiff did not fail to be present at the hearing, and she did not waive her right

to reject the award under Rule 91(a).

Rule 91(b): Failure to Participate in Good Faith

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Defendant also argues that plaintiff failed to participate in the arbitration hearing

in good faith, in violation of Rule 91(b). According to defendant, because plaintiff and

her counsel did not participate in the hearing at all, they could not have participated in

good faith.

The trial court made no finding that plaintiff failed to participate in the hearing in

good faith. Moreover, we conclude that Rule 91(b) does not apply in this instance. The

standard to be applied under Rule 91(b) is whether the party=s conduct was

characterized by a Adeliberate and pronounced disregard@ for the rules and the court.

State Farm Insurance Co. v. Kazakova, 299 Ill. App. 3d 1028, 1034 (1998). In the case

at bar, plaintiff=s conduct did not exhibit such disregard for the rules or the court. As

noted, plaintiff and her counsel arrived at the hearing room just a few minutes after the

end of the 15-minute grace period. When they arrived, the arbitrators told plaintiff=s

counsel that she was too late to present plaintiff=s case. Plaintiff=s conduct Adid not

amount to a deliberate and pronounced disregard where the arbitrators did not permit

plaintiff to participate in the hearing.@ Zietara, 361 Ill. App. 3d at 822, citing Gore v.

Martino, 312 Ill. App. 3d 701, 705 (2000).

Plaintiff also was not the only party who was tardy in arriving at the hearing.

According to the arbitration award, defendant White also arrived Aafter [the] 8:45

termination of [the] hearing.@ Moreover, defendant Whitehead never appeared at all. In

these circumstances, plaintiff should not be singled out for sanctioning.

Our conclusion regarding the applicability of Rule 91(b) is in line with the original

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purpose of paragraph (b), which was added to Rule 91 by amendment in 1993. ILCS

Ann., R. 91, Historical Notes, at 131 (Smith-Hurd 2000). The committee comments to

Rule 91(b) indicate that, prior to the addition of this paragraph, arbitrators complained

that some parties and lawyers would merely attend but refuse to participate in

arbitration. Paragraph (b) was added Ato discourage such misconduct.@ 145 Ill. 2d R.

91(b), Committee Comments. There was concern that arbitration Anot be perceived as

just another hurdle to be crossed in getting the case to trial.@ 145 Ill. 2d R. 91(b),

Committee Comments. In the case at bar, plaintiff did not refuse to participate in the

arbitration. It was the arbitrators themselves who prevented her from participating.

Applying Rule 91(b) in this instance would do nothing to accomplish the purpose of

discouraging parties from refusing to participate in arbitration.

We emphasize that our decision in this case is not meant to interfere with the

scheduling of cases for arbitration. Rather, we are merely interpreting the rules (in this

instance, Rules 91(a) and (b)) that pertain to the arbitration process.

For the reasons set forth above, the judgment of the circuit court barring plaintiff

from rejecting the arbitration award is reversed, and the cause is remanded for a new

arbitration hearing. In view of our disposition of this case, we need not address

plaintiff=s remaining argument that the trial court erred in correcting the arbitration award

to reflect that it was in favor of both Whitehead and White rather than only White.

Reversed and remanded.

Cahill, J. and Gordon, J., concur.

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