FOURTH DIVISION

                                                                                                            Nocevember 27, 2002

No. 1-02-0748

GOVERNMENT EMPLOYEES INSURANCE

COMPANY, a/s/o Millie Booker,			

			Plaintiff-Appellant,

v.

BERNADETTE CAMPBELL,  	

			Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County

Honorable

James P. McCarthy,

Judge Presiding.

	JUSTICE KARNEZIS delivered the opinion of the court:

	Following mandatory arbitration in this subrogation action involving damages sustained in a vehicle collision by plaintiff's subrogor, judgment on liability was entered

in favor of plaintiff, Government Employees Insurance Company (hereinafter, GEICO),

and against defendant, Bernadette Campbell.  However, the arbitrators awarded

GEICO $0 in damages as they found that GEICO had violated defendant's Rule 237(b) (166 Ill. 2d R. 237(b)) notice to produce by failing to produce the "adjuster with the entire claim file."  GEICO attempted to reject the award, but the trial court entered an

order debarring it from doing so as a sanction for its Rule 237 violation.  GEICO now

appeals from that order and claims that the trial court erred in barring it from rejecting

the arbitration award as it complied with Supreme Court Rule 237.  GEICO also argues

that even if it violated Rule 237, the sanction of debarment was too harsh.  In addition, it

maintains that the trial court's reliance upon a written set of "proposed arbitration

guidelines" in barring plaintiff's rejection of the arbitration award was improper.  Finally,

GEICO contends that the trial court improperly considered good faith and meaningful

participation under Supreme Court Rule 91(b) (166 Ill. 2d R. 91(b)) as a basis for

debarring its rejection of the arbitration award, as defendant waived this argument by

failing to raise it in her motion to debar.  We affirm.

	GEICO filed a subrogation action to recover damages in the amount of

$17,081.70 as a result of a vehicle collision between it's subrogor, Millie Booker, and

the defendant, Bernadette Campbell.  

	Defendant served a notice to produce, pursuant to Supreme Court Rule 237(b)

(166 Ill. 2d R. 237(b)), on GEICO demanding that, among other things, GEICO produce

"[p]laintiff(s) and [c]o-defendant(s) at the commencement of the case in chief of

defendant Bernadette Campbell" and, "[i]f the [p]laintiff and/or the [c]o-defendant is a

corporation (including an Insurance Company), the claims adjuster with the entire claim

file."

	A mandatory arbitration hearing was held on November 19, 2001.  Counsel for GEICO appeared at the hearing, as did it's subrogor, Millie Booker.  Neither the claims

adjuster nor the claim file was produced.  The arbitrators entered an award in favor of

GEICO with respect to liability but awarded GEICO $0 in damages as GEICO "failed to

produce file and agent pursuant to Rule 237."

	On November 27, 2001, GEICO filed a notice of rejection of the award in the

circuit court.  In response, defendant filed a motion to debar GEICO's rejection of the

award on the basis that GEICO failed to comply with defendant's Rule 237 notice.  On

January 8, 2002, the court granted defendant's motion to debar.  Thereafter, the court

entered judgment on the arbitration award in favor of GEICO and against defendant in

the amount of $0.

	GEICO then filed a motion to reconsider the court's debarment of GEICO's

rejection and judgment on the award.  A hearing was held on the motion to reconsider

and the court denied GEICO's motion. 

	Plaintiff first claims that it should not have been debarred from rejecting the

arbitration award because it substantially complied with Supreme Court Rule 237. 

While plaintiff did not bring it's "claim adjuster with the entire claim file" to the hearing as

required by defendant's notice, GEICO asserts that "the circumstances of this case do

not warrant such a [sic] extreme result– in essence, a $17,081.70 sanction–merely because GEICO did not bring a total loss adjuster to testify on its behalf at arbitration,

while both counsel and subrogor did appear."  

	  Supreme Court Rule 237(b) states in pertinent part:

		"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.  The notice

also may require the production at the trial of the originals of those documents or

tangible things * * *.  Upon a failure to comply with the notice, the court may

enter any order that is just, including any order provided for in Rule 219(c) that

may be appropriate."  166 Ill. 2d R. 237(b).

	Supreme Court Rule 90(g) provides that Rule 237 is equally applicable to

arbitration hearings as to trials and also provides that failure to comply with a Rule

237(b) notice may include an order debarring that party from rejecting the arbitration

award.  166 Ill. 2d R. 90(g).

	Sanctions for failing to comply with a Rule 237 notice are to be imposed when

failure to comply is determined to be unreasonable.  Hawkins v. Wiggins, 92 Ill. App. 3d 278, 282, 415 N.E.2d 1179 (1980).   The trial court's decision to bar a party from rejecting an arbitration award is within the sound discretion of the trial court and will not

be disturbed on review absent an abuse of discretion.  Williams v. Dorsey, 273 Ill. App. 3d 893, 901, 652 N.E.2d 1286 (1995).  An abuse of discretion "occurs when the court

rules arbitrarily or when its ruling 'exceed[s] the bounds of reason.' " Williams, 273 Ill. App. 3d at 901 quoting In re Marriage of Malters, 133 Ill. App. 3d 168, 180, 478 N.E.2d 1068, 1076 (1985).  In addition, the burden is on the offending party to show that its

noncompliance with a Rule 237 notice was reasonable or the result of extenuating

circumstances.  Kubian v. Labinsky, 178 Ill. App. 3d 191, 197, 533 N.E.2d 22 (1988).

	Plaintiff argues that the ruling in State Farm Insurance Co., v. Rodrigues, 324 Ill. App. 3d 736, 756 N.E.2d 359 (2001), is dispositive of it's claim that the failure to comply

with a Rule 237(b) notice was not unreasonable.  In that case, State Farm filed a

subrogation action against defendant Rodrigues for damaging the vehicle of it's insured,

Pisarski.  It was alleged that defendant struck and damaged Pisarski's parked and

unoccupied vehicle.  Counsel for State Farm appeared at the arbitration hearing but

Pisarski did not and the hearing proceeded without her.  The arbitrators entered an

award for plaintiff and against defendant, but did not make a finding that plaintiff had

failed to participate in good faith.  Thereafter, defendant rejected the arbitration award. 

Subsequently, the trial court entered judgment for defendant and an order barring

plaintiff from presenting evidence at trial as plaintiff had not arbitrated in good faith.  

Plaintiff appealed and argued that the trial court abused its discretion in finding that

plaintiff failed to arbitrate in good faith and in entering an order based on that finding

barring plaintiff from presenting evidence at trial.  State Farm, 324 Ill. App. 3d at 737- 40. 

	GEICO confuses Supreme Court Rules 237(b) and 90(g) with Rule 91 (145 Ill. 2d

R. 91), and therefore its reliance on State Farm is misplaced.  In State Farm, the court barred plaintiff from presenting evidence at trial as a sanction for plaintiff's failure to

arbitrate in good faith, in accordance with Supreme Court Rule 91, which requires that a

party or a party's attorney appear at the arbitration hearing and participate meaningfully

and in good faith, after plaintiffs' subrogor, Pisarski, failed to appear at the arbitration

hearing.   State Farm, 324 Ill. App. 3d at 738; 145 Ill. 2d Rs. 91(a), (b).  The court's order finding bad faith was based on defendant's argument that Pisarki's presence at the arbitration hearing was necessary as her testimony was needed to submit plaintiff's

case to sufficient adversarial testing and to reveal whether she actually had an

insurance policy and whether there was preexisting damage to her vehicle.   State Farm, 324 Ill. App. 3d at 742.   

	Contrary to the facts of the instant case, the court in State Farm found that there could be no Rule 237 violation as there was no indication that defendant ever filed the

necessary notice with plaintiff to produce subrogor or any of plaintiff's representatives. 

As a result, the court could not impose sanctions under Supreme Court Rule 90(g).

State Farm, 324 Ill. App. 3d at 741-42. 

	In the instant case, defendant filed a proper Rule 237 notice that included,

among other things, that plaintiff bring the "adjuster with the entire claim file" to the

arbitration hearing.  GEICO did not do so and now attempts to make light of its

noncompliance by referring to its "mere failure."  Moreover, GEICO has failed to provide

any explanation for its noncompliance, other than it was "an oversight."  

	"A consistent theme throughout the rules governing mandatory arbitration is the

need for parties and their counsel to take these proceedings seriously;

specifically, the concern is that no party make a 'mockery of this deliberate effort

on behalf of the public, the bar and judiciary to attempt to achieve an expeditious

and less costly resolution to private controversies' and to avoid allowing the

arbitration process to be reduced to merely 'another hurdle to be crossed in

getting the case to trial.' "  Williams, 273 Ill. App. 3d at 900, 652 N.E.2d 1286 quoting 145 Ill. 2d Rs. 91(a), (b), Committee Comments.  

See also 166 Ill. 2d Rs. 90(g), 93.

	In accordance with the aforementioned "theme," we find that the sanction

imposed by the trial court was not an abuse of discretion, nor was the sanction unduly

harsh in light of the circumstances.  Basic tort law mandates that to establish a prima facie case of negligence a plaintiff must show that a duty was owed, defendant breached that duty, the breach proximately caused plaintiff's injury and plaintiff

sustained damages.  Nunez v. Horwitz, 205 Ill. App. 3d 976, 981, 563 N.E.2d 946 (1990) citing W. Prosser, Prosser & Keeton: On Torts §30, at 164-65 (5th ed. 1984).  Plaintiff failed to produce the necessary witness and documentation with regard to

damages and therefore failed to establish a prima facie case of negligence.  As a result, it was awarded $0 in damages.  Certainly, plaintiff would not have proceeded to trial

without a witness or documents which would serve as a foundation for its damage

claim.  As the court noted, "[i]f this was a trial and you had that information and it wasn't

there, it's no different."  Accordingly, the sanction in the instant case is appropriate.

	Plaintiff next directs our attention to a piece of paper entitled "Proposed Property

Damage Guidelines for Arbitration Orders," which plaintiff claims was improperly relied

upon by the court in determining whether to debar plaintiff's rejection of the arbitration

award.   The document states, in relevant part, after service of a proper Rule 237 notice

to appear, in cases where the ad damnum is between $10,000 to $30,000, the subrogor and adjuster (or person with actual knowledge of damages) must appear.  The

document further states, "[t]hese proposals are only guidelines."

	As plaintiff argues, these guidelines have not been adopted as circuit court rules.  The trial court's reference to these guidelines does not require us to reverse it's ruling. 

Even if the court relied on the guidelines,1 we do not find an impermissible judicial encroachment of legislative authority as plaintiff suggests.  

	As previously stated, sanctions for violating a Rule 237(b) notice to produce

include an order debarring the offending party from rejecting the arbitration award.  166

Ill. 2d R. 90(g).  Here, plaintiff violated Rule 237 by failing to produce "the adjuster and

the entire claim file."  Therefore, the entry of an order debarring plaintiff's rejection of

the award was proper under Illinois Supreme Court rules, regardless of any reference to

the guidelines.

	Plaintiff next contends that the trial court improperly considered good faith and

meaningful participation under Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)) as a

basis for debarring their rejection of the arbitration award, as defendant waived this

argument by not raising it in her motion to debar.  GEICO claims defendant did not

raise this issue in her written response to plaintiff's motion to reconsider but rather

raised it for the first time at the hearing on plaintiff's motion to reconsider. 	

	Matters not raised in the trial court may not be raised for the first time on appeal, 

(see Riopelle v. Northwest Community Hospital, 195 Ill. App. 3d 750, 753, 552 N.E.2d 1220 (1990)).  However, the issue of good faith and meaningful participation was clearly raised during the hearing on plaintiff's motion to reconsider.  Because the issue was

made part of the record, it is properly before this court.  

	Defendant's motion to debar makes only one allegation:  GEICO failed to comply

with defendant's Rule 237 motion to produce. Therefore, the trial court granted

defendant's motion to debar as a sanction for plaintiff's violation of Rule 237.  Absent a

complete record, it is unclear whether the trial court considered a Rule 91(b) violation at

the time of the entry of the order debarring plaintiff from rejecting the award, or whether

it was first considered on the motion to reconsider the debarment. 

	However, because we have already determined the trial court did not abuse it's

discretion in imposing the sanction of debarment for GEICO's violation of Supreme

Court Rules 237 (b) and 90(g), we need not address whether the trial court properly

found that plaintiff had failed to arbitrate in good faith and a meaningful manner in

violation of Supreme Court Rule 91(b). 

	Based on the foregoing, we find that the trial court did not abuse it's discretion in

barring GEICO from rejecting the arbitration award.  Hence, the judgment of the trial

court is affirmed.

	Affirmed.

	HARTMAN and GREIMAN, JJ., concur.