dissenting:
I agree we should reach the issues in this case. Considerations of judicial economy persuade me we should put aside the fact that addressing the certified question directly, on its merits, does nothing to resolve the rejection issue ruled on by the trial court. The certified question assumes the existence of “separate arbitration awards.” There was only one award, with three findings.
The majority finesses the precise wording of the certified question to address an issue never before decided by a reported decision in this state. That is, is a mandatory arbitration rejection effective when it clearly is intended to apply only to one of several discrete findings in the arbitration award? I believe the correct answer to that question is no.
There is nothing surprising or unexpected about multiple claims being resolved in a single award, as was done here. Illinois Supreme Court Rule 92(b) clearly anticipates that situation: “The award shall dispose of all claims for relief.” 155 Ill. 2d R. 92(b). “Award” is used in the singular throughout Rule 92, never in the plural.
The arbitrators adhered to Rule 92(b) when they framed an award that disposed of all the claims for relief. It was a single award in a case where the law division and municipal division lawsuits had been “consolidated for discovery and trial.” That meant “the rights of all of the parties would be finally litigated and settled in one action.” Northwest Water Comm’n v. Carlo V. Santucci, Inc., 162 Ill. App. 3d 877, 891 (1987).
Now, then, can rejecting only one of the three findings be a rejection of the entire award? Once an award is made, “the parties must accept or reject the award in its entirety.” (Emphasis added.) Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 279 (1997). That is not what Mison’s lawyers did.
I read Rule 92(c) as requiring a rejection to apply to the entire award, not just part of it. A partial rejection is no rejection at all. The rejecting party cannot pick and choose from within the award.
The record reflects Mison’s attorneys in the municipal division suit — Burnes & Libman — clearly intended to reject only the arbitrators’ finding against Mison as a “plaintiff” and for Busch as a “defendant” when they filed the notice of rejection. That is the way they captioned their notice. Although the single arbitration award in the consolidated case contained three distinct findings, Mison’s notice of rejection specifically provides that plaintiff, Mison, “rejects the Award of the Arbitrators entered in this cause on February 1, 2007, in favor of the Defendant, and requests a trial before the court.” (Emphasis added.) The notice of rejection makes no reference to the arbitrators’ other findings in the award.
In sum, the following facts support the conclusion that Mison’s attorneys — Burnes & Libman — intended to reject only the arbitrators’ findings with regard to Mison as plaintiff and Busch as defendant in the municipal division suit, not all of the findings reached by the arbitrators:
• Mison’s attorneys in the law division suit where he was a defendant — Beverly & Pause — did not file a separate notice of rejection.
• Mison’s notice of rejection contains only the caption and case number for the municipal division suit filed by Mison; that is Mison as “plaintiff,” Busch as “defendant.” He rejected only the award “in favor of the defendant,” that is, Busch.
• Mison did not include any reference to the arbitrators’ findings with regard to the law division suit or the counterclaims in the notice of rejection.
• Mison did not serve the notice of rejection on Kushma individually or on Kushma’s attorneys in the law division suit.
Although I agree that all of the claims became part of one case when the separate suits were consolidated for the purposes of discovery and trial, I would find Rules 92(c) and 93(a), read together, require Mison to reject the arbitration award in its entirety, not just one of the arbitrators’ individual findings. See Cruz, 179 Ill. 2d at 279, citing 155 Ill. 2d R. 92(c).
If Mison’s insurance company lawyers wanted to reject the portion of the award that granted damages to Busch and Kushma, they easily could have done so. It takes no great stretch of the imagination to see that Burnes & Libman were not the least bit concerned about a judgment against Mison in his role as defendant in the law division lawsuit. Going before a jury only on the Mison v. Busch claim would increase chances for recovery.
I believe that in a case consolidated for discovery and trial Rule 93(a) is satisfied by a single notice of rejection that covers all parts of the award or awards made in mandatory arbitration. But where, as here, there is only one award and only a partial rejection of it, the rejection is a nullity and judgment should be entered on all findings in the arbitrators’ award.
Nothing in the relevant supreme court rules authorizes piecemeal rejection. We take the rules as we find them. We should not rewrite them to reach a favored result. I respectfully dissent.