SECOND DIVISION

										August 26,July 22, 2003August 19, 2003

No. 1-02-0478

STATE FARM MUTUAL INSURANCE COMPANY,	)	Appeal from the

		 						)	Circuit Court of 

		Plaintiff-Appellant,		)	Cook County.

								)	

			v.					)	No. 98 M 115748

								)	

ANTON KOSCELNIK,					) 	Honorable 

								)	James P. McCarthy,				

		Defendant-Appellee.			)	Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Plaintiff State Farm Mutual Insurance Company appeals from an

order of the circuit court debarring it from rejecting an

arbitration award issued in favor of defendant Anton Koscelnik.  On

appeal, plaintiff contends that the trial court abused its

discretion in finding that plaintiff failed to participate in the

arbitration hearing in good faith and in barring plaintiff from

rejecting the award.  For the reasons set forth below, we affirm.

	Plaintiff filed a subrogation action against defendant,

alleging that defendant carelessly and negligently caused a

collision between plaintiff's insured's vehicle and defendant's

vehicle on June 1, 1996, which resulted in personal injury and

property damage to plaintiff's insured.  Pursuant to Illinois

Supreme Court Rule 86 (155 Ill. 2d R. 86), the matter was set for

arbitration on October 17, 2001.

	Prior to the arbitration, both parties served Illinois Supreme Court Rule 237 (166 Ill. 2d R. 237) notices to produce.  Plaintiff, in its notice to produce, specifically requested defendant's

presence at the arbitration.  Defendant requested the presence of

"plaintiff(s) or if the plaintiff is a corporation, then the

employee of the plaintiff who is its designated representative, or

if none named, the adjuster with the most knowledge of the claim." 

Both plaintiff and defendant's counsel appeared at the arbitration

hearing.  Plaintiff's representative, a claims adjuster, also

appeared at the hearing.  Neither defendant nor plaintiff's insured

attended the arbitration. 

	The arbitration began at 8:45 a.m. and, at 9 a.m., the

arbitrators entered an award in favor of defendant.  The

arbitrators wrote only the following on the award: "Award for

defendant.  Defendant present through counsel only.  Plaintiff

present through counsel only.  237 notices were served on both

parties."  The record on appeal does not contain a transcript of

the hearing.  

	On October 31, plaintiff filed a notice of rejection of the

arbitration award pursuant to Illinois Supreme Court Rule 93 (166

Ill. 2d R. 93).  On December 18, pursuant to Illinois Supreme Court

Rule 91 (145 Ill. 2d R. 91), defendant filed a motion to bar

plaintiff's rejection of the award.  Plaintiff filed a response to

defendant's motion and a motion for sanctions against defendant for

failing to appear at the arbitration in violation of plaintiff's

Rule 237 notice.          

	On January 17, 2002, the trial court heard both defendant's

motion to bar plaintiff from rejecting the arbitration award and

plaintiff's motion for sanctions.  Defendant argued that plaintiff

failed to participate in the arbitration hearing in good faith and

in a meaningful manner because it did not produce its insured and,

therefore, it failed to present any evidence with regard to

defendant's liability.  Plaintiff responded that the evidence it

had intended to produce at the arbitration hearing--its claims

adjuster's testimony, an Illinois Supreme Court Rule 90(c) (166

Ill. 2d R. 90(c)) package which included pictures of the damage to

plaintiff's insured's vehicle and plaintiff's insured's personal

injury and property damage bills, and the adverse testimony of

defendant--was sufficient to constitute good faith participation. 

Plaintiff further argued that because defendant did not appear at

the arbitration, in violation of plaintiff's Rule 237 notice,

court-ordered sanctions were warranted.  The trial court ruled in

favor of defendant on both motions, finding that plaintiff failed

to participate in the arbitration hearing in good faith and that

the issue of plaintiff's motion for sanctions against defendant was

"moot."  This appeal followed.

	Plaintiff contends that the trial court abused its discretion

in finding that plaintiff failed to participate in the arbitration

hearing in good faith and in barring plaintiff's rejection of the

arbitration award.  Defendant contends that the trial court

properly barred plaintiff from rejecting the award because plaintiff presented no evidence at the arbitration hearing with

regard to liability for the accident.

	A trial court's imposition of sanctions pursuant to Supreme

Court Rule 91 will be reversed only where the court's decision was

an abuse of discretion.  Goldman v. Dhillon, 307 Ill. App. 3d 169, 172, 717 N.E.2d 474 (1999).  An abuse of discretion will be found

only if the trial court's ruling was arbitrary or if it exceeded

the bounds of reason.  Schmidt v. Joseph, 315 Ill. App. 3d 77, 81, 733 N.E.2d 694 (2000).  The supreme court rules regarding mandatory

arbitration are designed to prevent abuse in, and to uphold the

integrity of, the arbitration process.  State Farm Insurance Co. v. Rodrigues, 324 Ill. App. 3d 736, 740, 756 N.E.2d 359 (2001).  

	Under Illinois Supreme Court Rule 91, a party waives the right

to reject an arbitration award when the party fails: (1) to appear,

either in person or by counsel, at the arbitration hearing; or (2)

to participate in the arbitration hearing in good faith and in a

meaningful manner.  145 Ill. 2d R. 91(a),(b).  In the present case,

the trial court debarred plaintiff from rejecting the arbitration

award on the second ground, i.e., it found that plaintiff failed to participate in the arbitration hearing in good faith and in a

meaningful manner. 

	Plaintiff first argues that because the arbitrators did not

make an express written finding that plaintiff failed to

participate in the arbitration hearing in good faith, the trial

court abused its discretion in finding that plaintiff failed to participate in good faith and in debarring plaintiff's rejection of

the award.  Contrary to plaintiff's argument, however, it is well-

settled that even where the arbitrators do not include a written

finding that the plaintiff failed to participate in good faith, the

trial court may bar rejection of an award on the basis of lack of

good faith.  Goldman, 307 Ill. App. 3d at 172; Saldana v. Newmann, 318 Ill. App. 3d 1096, 1098, 743 N.E.2d 663 (2001).  

	Plaintiff next argues, citing West Bend Mutual Insurance Co. v. Herrera, 292 Ill. App. 3d 669, 686 N.E.2d 645 (1997), that because the arbitrators did not find that plaintiff failed to

participate in good faith and because no transcript of the hearing

existed, the trial court had no basis upon which to determine

whether plaintiff participated in the hearing in good faith and,

therefore, it abused its discretion in holding that plaintiff did

not.  In West Bend, one of the defendants appeared at the arbitration hearing pursuant to the plaintiff's Rule 237 notice,

but he could not speak English and he had no translator.  At the

hearing, the defendants' attorney made an opening statement, cross-

examined the plaintiff, and made a closing argument in behalf of

the defendants.  The arbitrators ruled in favor of the plaintiff,

but made no express finding that either of the defendants failed to

participate in good faith.  The plaintiff moved to have the

defendants barred from rejecting the arbitration award and the

trial court, without the benefit of a hearing transcript, granted

the motion with respect to the non-English speaking defendant.  The trial court found that the defendant "'failed to participate in a

meaningful manner and in good faith by failing to testify at the

arbitration hearing in both Plaintiff[']s case pursuant to

plaintiff[']s 237 notice and in Defendant[']s case in chief'." 

West Bend, 292 Ill. App. 3d at 672.  The West Bend court reversed the trial court's decision, stating that "the arbitration panel is

in the best position to determine whether a party has failed to

participate in an arbitration hearing in good faith or in a

meaningful manner, and without an adequate record of the proceedings or a finding by the panel of a failure to participate

in good faith and in a meaningful manner, the trial court cannot

make its own determination of bad faith participation."  West Bend, 292 Ill. App. 3d at 674-75.    

	West Bend is distinguishable from the instant case.  In West Bend, the issue was whether the defendant's inability to speak English and his failure to bring an interpreter to the arbitration

hearing constituted bad faith participation.  The West Bend court held that it did not because, despite the defendant's inability to

testify, the defendant's attorney made an opening statement, cross-

examined the plaintiff, and made a closing argument in behalf of

the defendant.  West Bend, 292 Ill. App. 3d at 674.  In the case at bar, the issue is whether plaintiff failed to participate in good faith and in a meaningful manner by failing to produce its insured

at the arbitration hearing.  Here, unlike the situation in West Bend, plaintiff, the party seeking to reject the arbitration award, had the burden of producing sufficient evidence to support its

claim at the arbitration hearing.  As discussed below, a thorough

review of the record reveals that plaintiff could only have met its

burden by producing its insured or at least one eyewitness to the

accident other than defendant who contested liability, and

plaintiff's failure to do so provided a basis for the trial court's

determination that plaintiff failed to participate in the

arbitration in good faith.

	Plaintiff's complaint alleged that defendant negligently

caused the collision between his vehicle and plaintiff's insured's

vehicle by: (1) failing to keep a proper lookout for the insured's

vehicle; (2) operating his vehicle at an excessive rate of speed;

(3) failing to apply his brakes to avoid the collision; (4)

disregarding traffic signals; and (5) failing to equip his vehicle

with sufficient brakes in violation of Illinois law.  At the

hearing on defendant's motion to bar plaintiff from rejecting the

arbitration award, and in its brief filed in this appeal, plaintiff

argued that the following evidence, which it brought to the

arbitration hearing, fully supported the allegations in its

complaint: (1) its claims adjuster's testimony; (2) pictures of its

insured's damaged vehicle; (3) bills for its insured's personal

injury and property damage; and (4) defendant's adverse testimony. 

The record makes clear that plaintiff did not intend to produce its

insured or any eyewitness to the collision, other than defendant,

who, in his answer to plaintiff's complaint, denied liability for the accident.  Because both parties contested liability, without

plaintiff's insured or some other eyewitness' presence and

testimony at the arbitration hearing other than defendant,

plaintiff could not prove its claim to the arbitrators that

defendant, rather than plaintiff's insured, caused the accident and

that defendant was in fact negligent.

	The facts here are similar to those in Martinez v. Gaimari, 271 Ill. App. 3d 879, 649 N.E.2d 94 (1995).  In Martinez, the plaintiff and the defendant both contested liability for an

automobile accident that occurred between the parties.  The matter

was set for arbitration and both parties served Rule 237 notices to

produce the respective parties at the hearing.  The plaintiff

appeared at the hearing, but, due to a medical emergency of her

son, the defendant did not.  The arbitrators entered an award in

favor of the plaintiff and the defendant sought to reject the

award.  Thereafter, the plaintiff filed a motion to debar the

defendant from rejecting the award, which the trial court granted

after finding that the defendant had failed to participate in the

arbitration hearing in good faith and in a meaningful manner.  

	On appeal, the Martinez defendant argued that because she had a valid excuse for her absence at the arbitration hearing, the

trial court abused its discretion in finding that she had failed to

participate in the hearing in good faith.  The Martinez court affirmed the trial court's decision, holding that because the

defendant was an eyewitness to the events giving rise to her liability, her participation in the arbitration hearing was

"essential."  Martinez, 271 Ill. App. 3d at 883.  The Martinez court further found that even though the defendant may have had a

valid excuse for not attending the hearing, the trial court's

decision to debar the defendant from rejecting the award was not

against the manifest weight of the evidence because

		"[w]hat is most important is that defendant

failed to present any evidence to rebut

plaintiff's case in chief.  It is highly

unlikely that defendant would have proceeded

in this manner if the cause had gone to trial. 

The purpose of the amendments to Rules 91 and

93 was to emphasize that '[a]rbitration must

not be perceived as just another hurdle to be

crossed in getting the case to trial.' 

[Citation.]  Where, as here, a defendant fails

to subject the plaintiff's case to the type of

adversarial testing that would be expected at

a trial, the mandatory arbitration process

loses its value entirely.  The amendments to

Rules 91 and 93 constitute an attempt to allay

this problem.  Therefore, we conclude that the

trial court did not commit error when, as a

sanction, it barred defendant from rejecting

the arbitration award."  Martinez, 271 Ill. App. 3d at 883-84. 

	In the present case, plaintiff failed to produce its insured,

who was an eyewitness to the accident, at the arbitration hearing. 

Here, as in Martinez, because liability was contested, the missing eyewitness, plaintiff's insured, was essential to the determination

of the liability issue in the case.  Further, similar to the

defendant in Martinez, it is highly unlikely that plaintiff would have proceeded in this manner had the case gone to trial. 

Accordingly, because plaintiff failed to subject its case in the

arbitration proceeding as would have been expected at trial, we

find that the trial court did not abuse its discretion in finding

that plaintiff failed to participate in good faith and in debarring

plaintiff from rejecting the arbitration award.

	Plaintiff next argues that because its conduct during the arbitration proceeding did not constitute a deliberate,

contumacious, or unwarranted disregard of the court's authority,

conduct that has been found to be a basis for dismissal of a

plaintiff's lawsuit as a sanction (Easter Seal Rehabilitation Center for Will-Grundy Counties, Inc. v. Current Development Corp., 307 Ill. App. 3d 48, 716 N.E.2d 809 (1999)), the trial court abused

its discretion in finding that plaintiff failed to participate in

the arbitration hearing in good faith.  Plaintiff argues that it in fact complied with defendant's Rule 237 notice and that it intended

to meaningfully participate in the arbitration proceeding.

	We agree that plaintiff's conduct did not amount to deliberate, contumacious, or unwarranted disregard of the trial

court's authority.  Defendant's Rule 237 notice to produce

requested that plaintiff bring a claims adjuster with the most

knowledge of the accident to the arbitration.  Plaintiff brought

the claims adjuster who had worked on the subject claim, and,

therefore, plaintiff complied with defendant's Rule 237 notice. 

Further, plaintiff provided the arbitrators with a Rule 90(c)

package containing evidence that it intended to submit at the

arbitration hearing.  In addition, plaintiff intended to adversely

examine defendant at the hearing.  Given these facts, it cannot be

said that plaintiff acted with disregard for the court's authority. 

However, a trial court need not find intentional obstruction of the

arbitration proceeding in order to find bad faith participation on

the part of a party to an arbitration hearing.  Employer's Consortium, Inc., v. Aaron, 298 Ill. App. 3d 187, 191, 698 N.E.2d 189 (1998).  In arbitration proceedings, parties are required to subject their cases to the type of adversarial testing that would

be expected at trial.  Schmidt, 315 Ill. App. 3d at 84.  Here, as discussed above, we find that plaintiff, by failing to produce its

insured or an eyewitness other than defendant, did not subject its

case to the type of adversarial testing that would have been

expected at trial.  Accordingly, we reject plaintiff's contention

that, because plaintiff's conduct did not amount to a deliberate,

contumacious, and unwarranted disregard for the court's authority,

the trial court abused its discretion in debarring plaintiff from rejecting the arbitration award.

	Plaintiff's final argument is that the trial court's decision

exceeded the bounds of reason and thereby deprived plaintiff of its

right to a trial by jury.  Because plaintiff failed to subject its

case in the arbitration proceeding to the type of adversarial

testing that would have been expected at trial, we do not find that

the trial court's decision to debar plaintiff from rejecting the

arbitration award exceeded the bounds of reason.  Further, it is

well-settled that a trial court's decision to debar a party from

rejecting an arbitration award pursuant to Supreme Court Rule 91

does not unconstitutionally deprive a party of its right to a trial

by jury.  Bachmann v. Kent, 293 Ill. App. 3d 1078, 1088, 689 N.E.2d 171 (1997).  Accordingly, we reject plaintiff's final contention.

	For the reasons stated, we affirm the decision of the circuit

court debarring plaintiff from rejecting the arbitration award.

	Affirmed.

	McBRIDE, P.J., and GARCIA, J., concur.