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A party who is slightly tardy to an arbitration hearing but arrives before the proceedings have concluded does not “fail to be present” under Illinois Court Rules, the Illinois Court of Appeals held.
In Nix v. Whitehead, No. 1-05-1412, 2006 WL 2547336 (Ill. Ct. App. Sep. 5, 2006), Nix brought a negligence action against Whitehead, and the court ordered mandatory arbitration. An arbitration hearing was scheduled for 8:30 a.m. When Nix and her attorney did not arrive at the hearing until 8:47 a.m., the arbitrators issued an award in Whitehead’s favor.
Nix attempted to exercise her right to reject the award, but Whitehead argued that she was barred from doing so because Nix failed to be present at the arbitration hearing. Illinois Supreme Court Rule 91(a) bars parties from rejecting arbitration awards when they fail to be present at the arbitration hearing.
In deciding whether Nix’s tardiness constituted a failure to be present, the Court look at the text of Rule 91(a). Because the Rule makes no mention of timeliness, the Court held that Nix did not fail to be present for purposes of the Rule.
The Court also considered the fact that, while the arbitration rules allow for a 15 minutes grace period, the grace period is not a requirement that Nix failed to meet. Rather, the grace period is only a “practice” of arbitration, and a party’s failure to arrive within the grace period is not a failure to be present.
Finally, the Court noted that this case was strikingly similar to Zietara v. DaimlerChrysler Corp., 838 N.E.2d 76 (Ill. Ct. App. 2005), in which the court ruled that “[w]here plaintiff arrived before the proceedings had concluded, we conclude that plaintiff did not fail to appear, and did not automatically waive [the] right to reject the award under Rule 19(a).”
In both cases, the plaintiff and counsel were late arriving to the arbitration hearing; the arrival time was shortly after 8:45 a.m. for an 8:30 a.m. hearing; and the arbitrators were still present. Therefore, under Zietara, Nix was not barred from rejecting the arbitration award.
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