                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Clanton v. Ray, 2011 IL App (1st) 101894




Appellate Court            STEVEN CLANTON, Plaintiff-Appellant, v. PURNIMA RAY,
Caption                    Defendant-Appellee.–STEVEN CLANTON, Plaintiff, v. MUNDEEP K.
                           RAINA, Defendant.


District & No.             First District, Fifth Division
                           Docket No. 1-10-1894


Filed                      December 30, 2011
Rehearing denied           October 23, 2012


Held                       Where plaintiff’s separate suits for his injuries arising from two unrelated
(Note: This syllabus       automobile accidents were consolidated and the parties agreed to
constitutes no part of     voluntary binding arbitration with the further agreement that defendants’
the opinion of the court   liability would be limited to the extent that the first defendant would be
but has been prepared      liable for no less than $250,000 and no more than $600,000, and the
by the Reporter of         second defendant’s liability would be fixed at $90,250, and the arbitration
Decisions for the          agreement barred disclosing the “high/low agreements” to the arbitrator,
convenience of the         the trial court’s judgment on the arbitrator’s award, as “clarified”
reader.)
                           pursuant to the first defendant’s motion, was remanded for further
                           proceedings with restrictions on defendants’ ability to select the same
                           arbitrator, since that arbitrator had knowledge of the “high/low
                           agreement” and it was impossible to determine that plaintiff was not
                           prejudiced.


Decision Under             Appeal from the Circuit Court of Cook County, Nos. 04-L-7549, 07-L-
Review                     1748 cons.; the Hon. Donald J. Suriano, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                 Alvin R. Becker and Stefania Pialis, both of Beerman Swerdlove LLP, of
Appeal                     Chicago, for appellant.

                           Michael J. Urgo, Jr., of Urgo & Nugent Ltd. and Michael Resis, of
                           SmithAmundsen LLC, both of Chicago, for appellee.


Panel                      JUSTICE J. GORDON delivered the judgment of the court, with opinion.
                           Presiding Justice Epstein and Justice McBride concurred in the judgment
                           and opinion.


                                             OPINION

¶1          Plaintiff Steven Clanton appeals from the circuit court’s confirmation of an arbitration
        award.
¶2          Clanton was involved in two unrelated automobile accidents. The first was on November
        9, 2001, with a vehicle driven by defendant-appellee Purnima Ray, and the second was on
        July 8, 2002, with a vehicle driven by defendant Mundeep Raina. Clanton filed separate suits
        against Ray and Raina seeking compensation for his injuries. The suits were subsequently
        consolidated into the present action.
¶3          The parties agreed to participate in voluntary binding arbitration. As part of their
        arbitration agreement, the parties agreed to limit defendants’ liability as follows: Clanton’s
        award against Ray would be no less than $250,000 and no more than $600,000, while
        Clanton’s award against Raina would be fixed at $90,250. (It was understood by the parties
        that Raina had limited insurance coverage in the amount of $90,250, while Ray was insured
        by two insurance policies whose combined coverage was $1,250,000.) The arbitration
        agreement specifically barred the parties from disclosing these “high/low agreements” to the
        arbitrator.
¶4          On March 26, 2010, the arbitrator issued an opinion finding that Clanton suffered
        $550,000 in damages, that his damages were indivisible, and that “[e]ach defendant is liable
        at the percentage of 50%.” Thereafter a dispute arose between Ray and Clanton as to the
        amount that Ray owed Clanton pursuant to the award. Ray contended that, under the plain
        text of the opinion, she owed only 50% of $550,000, that is, $275,000, notwithstanding the
        fact that Raina owed only $90,250 under the high/low agreement. Clanton contended that,
        under the doctrine of joint and several liability, Ray was liable for the entire balance of the
        $550,000 judgment not being paid by Raina, that is, $459,750. (The amount of Raina’s
        liability is not in dispute.)
¶5          Ray filed a motion in the circuit court requesting that the court remand the case to the
        arbitrator for clarification of the award, and the circuit court granted her motion. On May 6,
        2010, the arbitrator issued a new award entitled “Arbitration Award–Clarified” in which he
        stated, “The doctrine of joint and several liability is not applicable due to the ADR Systems

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       high/low limits for each defendant in the contract.” (The record does not reveal who
       disclosed the high/low limits to the arbitrator despite the fact that such disclosure was
       forbidden under the terms of the arbitration agreement.) The arbitrator further stated that,
       “[p]ursuant to the agreed arbitration conditions,” Ray was to pay $275,000 to Clanton.
¶6         Pursuant to this award, and over Clanton’s objection, the circuit court entered judgment
       against Ray for $275,000 and against Raina for $90,250. Clanton now appeals. For the
       reasons that follow, we reverse and remand.

¶7                                       I. BACKGROUND
¶8         Because a detailed recitation of the facts in the underlying tort actions is not material to
       this appeal, we shall summarize those facts briefly.
¶9         On November 25, 2003, Clanton filed a negligence action against Ray in the circuit court
       of Du Page County, seeking damages for bodily injuries he allegedly sustained as a result of
       a collision between his automobile and Ray’s automobile on November 9, 2001. Ray filed
       an answer denying all allegations of negligence. The parties proceeded to exchange discovery
       and litigate the lawsuit. On July 6, 2004, Clanton filed a negligence action against Raina in
       the circuit court of Cook County, seeking damages for bodily injuries he allegedly sustained
       as a result of a collision between his automobile and Raina’s automobile on July 8, 2002.
       Raina filed an answer likewise denying all allegations of negligence. Both actions were
       subsequently consolidated in Cook County.
¶ 10       On October 21, 2009, all parties agreed to participate in voluntary binding arbitration to
       be conducted by ADR Systems of America, L.L.C. The parties executed an ADR Systems
       binding arbitration agreement setting forth the terms of the arbitration. As part of this
       agreement, the parties agreed to limit defendants’ liability as follows:
               “The Parties agree that for insurance claim # 13-7558-442 [Clanton’s claim against
           Ray] the minimum award to Steven Clanton will be $250,000.00. Also, the maximum
           award to Steven Clanton will be $600,000.00. These amounts represent the minimum and
           maximum amounts of money that State Farm Insurance shall be liable to pay to Steven
           Clanton.
               The Parties agree that for Steven Clanton’s claim against Dr. Mundeep Raina, the
           minimum and maximum award to be derived, inclusive of insurance claims, shall be
           $90,250.00.” (Emphasis in original.)
       The parties further agreed not to disclose this high/low agreement to the arbitrator:
               “4. The Parties agree that they will not disclose any and all dollar figures, any
           settlement negotiations, the terms of any applicable insurance policy, high/low
           agreements between the Parties or any set-offs, whether they are MPC set-offs or set-offs
           from an underlying policy, orally or in writing, to the Arbitrator at any time before or
           during the Arbitration (including during any pre-hearing conference or at the hearing, or
           at any time prior to the Arbitrator’s final decision).
                    a. Violation of the rule set forth in Paragraph (C)(4) shall constitute a material
               breach of the agreement.”

                                                 -3-
¶ 11       As a result of the parties’ agreement to enter into binding arbitration, the trial court
       entered an order on October 27, 2009, dismissing the consolidated cases with prejudice, with
       the court retaining jurisdiction to effectuate and enforce the settlement.
¶ 12       The parties proceeded to arbitration on November 3, 2009. Thereafter, on March 26,
       2010, the arbitrator rendered an arbitration award (the March 26 award) which stated:
                “Finding in favor of: ð [Clanton]
                Gross Award: $550,000
                See opinion as to comparative percentage for the Defendants.”
¶ 13       In the accompanying memorandum opinion, after summarizing the testimony of the
       parties, the testimony of the parties’ medical experts, and Clanton’s documentary evidence
       as to his medical expenses and lost wages, the arbitrator issued the following findings:
                “1. The injuries suffered by plaintiff are indivisible.
                2. The plaintiff is not contributory [sic] negligent from first motor vehicle accident
           of November 29, 2001 with defendant Ray.
                3. The plaintiff did not mitigate his damages due to smoking. The smoking of the
           [plaintiff] was considered in entering the overall Award.
                4. Each defendant is liable at the percentage of 50%.
                AWARD: 550,000.00.”
¶ 14       On April 23, 2010, following the issuance of the March 26 award, Clanton filed a motion
       in the trial court entitled “Plaintiff’s Motion to Enter Judgment and Enforce the Arbitration
       Award.” In that motion, he contended, as he does in the instant appeal, that the March 26
       award made Raina and Ray jointly and severally liable for the sum of $550,000, which would
       leave Ray liable for $459,750, representing that portion of the judgment not owed by Raina
       pursuant to the high/low agreement. Attached to Clanton’s motion was a copy of the
       arbitration agreement between the parties.
¶ 15       In response, on April 30, 2010, Ray filed a motion in the trial court in which she
       requested that the trial court remand the award to the arbitrator for clarification because “the
       clear language of the Arbitration award seemingly leaves room for interpretation.” She did
       not elaborate upon what alternatives or inconsistencies might be gleaned from the language
       of the award. However, in support of her motion, Ray attached a letter from her counsel to
       ADR Systems, dated April 27, 2010, in which her counsel requested that the arbitrator issue
       a “clarification” of the award to make it clear that Ray would only be liable for 50% of
       $550,000, that is, $275,000. In that letter, Ray’s counsel stated, “[T]he plaintiff attorney has
       filed a Motion in court to reduce the award to a judgment in a manner in which he attempts
       to obtain more than $275,000.00 from my client based upon the previously agreed hi/low
       parameters.” Ray’s counsel did not elaborate upon the terms of the high/low agreement in
       that letter.
¶ 16       The trial court granted Ray’s motion on April 30, 2010, and entered an order remanding
       the case to ADR Systems “to clarify the award entered March 26 2010 as to the liability of
       both defendants as to the issue of joint and several liability.” The court did not rule at that
       time upon Clanton’s motion to reduce the award to a judgment.

                                                 -4-
¶ 17       On May 6, 2010, the arbitrator issued an “Arbitration Award–Clarified” (the May 6
       award). In that award, the arbitrator states:
                “The doctrine of joint and several liability is not applicable due to the ADR Systems
           high/low limits for each defendant in the contract. The arbitrator’s award is subject to the
           parties agreed ADR Systems high/low limits in the arbitration agreement, which limits
           the amount each defendant is liable for. These amounts were not disclosed to the
           arbitrator prior to the March 26, 2010 arbitration decision.
                Pursuant to the agreed arbitration conditions, and the decision of March 26, 2010, I
           am clarifying the following amounts that are owed as follows from each defendant:
                Purnima Ray to pay $275,000 to Steven Clanton
                Dr. Mundeep Raina to pay $90,250 to Steven Clanton.”
¶ 18       On May 25, 2010, Clanton renoticed his original motion in the circuit court seeking
       enforcement of the original March 26 award and filed a memorandum in its support. In that
       memorandum, Clanton alleged that, on May 3, 2010, the arbitrator was presented with a copy
       of the trial court’s remand order as well as a copy of Clanton’s original motion of April 23,
       2010, seeking enforcement of the arbitration award. That motion, as previously noted, had
       attached to it a copy of the parties’ arbitration agreement containing the details of the
       high/low agreements between the parties. In his memorandum, Clanton urged that the May
       6 award following the remand was improper, and he therefore urged the court to instead
       confirm the original award of March 26, pursuant to which he contended that Ray would be
       liable in the amount of $459,750. (Clanton does not disclose, either in the record below or
       in his briefs on appeal, who presented the arbitrator with his original motion.)
¶ 19       The trial court denied Clanton’s motion on June 3, 2010, finding that, in issuing the May
       6 award, the arbitrator had complied with the court’s request for clarification on the issue of
       joint and several liability.
¶ 20       On June 21, 2010, the trial court ordered the entry of judgment in Clanton’s favor against
       Ray in the amount of $275,000 and against Raina in the amount of $90,250. The trial court
       further noted that the judgment against Ray was satisfied in open court by Ray’s tender of
       two drafts totaling $275,000.
¶ 21       Clanton timely filed the instant appeal. Defendants do not raise any cross-appeal.

¶ 22                                       II. ANALYSIS
¶ 23       On appeal, Clanton raises two main contentions of error. First, he contends that the trial
       court erred in remanding the March 26 award to the arbitrator for clarification, because Ray’s
       request for clarification was untimely, and, in any event, the award was not in need of
       clarification. Second, Clanton contends that the May 6 award must be vacated because: (1)
       the arbitrator exceeded his authority by taking the high/low limits into account in rendering
       that award, (2) the arbitrator exceeded his authority by entering what was, in effect, a
       modification rather than a clarification, and because (3) a gross error of law appears upon the
       face of the award, since, contrary to the arbitrator’s implication, the existence of a high/low
       agreement does not preclude the application of joint and several liability. Ray disputes all of


                                                 -5-
       these contentions, as shall be developed below.
¶ 24       In considering Clanton’s contentions, we are mindful that, unlike review of a lower
       court’s decision, judicial review of an arbitration award is “extremely limited.” Anderson v.
       Golf Mill Ford, Inc., 383 Ill. App. 3d 474, 479 (2008). Because the parties have agreed that
       their dispute shall be settled by an arbitrator, the court should not vacate an award simply
       because its interpretation differs from that of the arbitrator. Galasso v. KNS Cos., 364 Ill.
       App. 3d 124, 131 (2006); Board of Education of the City of Chicago v. Chicago Teachers
       Union, Local No. 1, 86 Ill. 2d 469, 478 (1981) (“Because the arbitrator’s decision was
       bargained for, the courts would have no business overruling the arbitrator’s interpretation
       even if they disagreed.”). Thus, an award may not be vacated for mere errors in judgment or
       mistakes of fact or law. Sloan Electric v. Professional Realty & Development Corp., 353 Ill.
       App. 3d 614, 621 (2004). However, an award may be vacated where “a gross error of law or
       fact appears on the award’s face.” (Emphasis in orginal.) Id.; see Galasso, 364 Ill. App. 3d
       at 131. A gross error of law exists only where it appears from the face of the award that the
       arbitrator was so mistaken as to the law that, if the arbitrator had been informed of the
       mistake, the award would have been different. Chicago Teachers Union, 86 Ill. 2d at 477.
       Moreover, the Illinois Uniform Arbitration Act (the Arbitration Act) presents five additional
       circumstances in which an arbitration award shall be vacated: (1) the award was procured by
       corruption or fraud, (2) there was evident partiality by an arbitrator appointed as a neutral
       party, or corruption in any arbitrator, (3) the arbitrators exceeded their powers, (4) the
       arbitrators refused to postpone the hearing upon a showing of sufficient cause, or refused to
       hear evidence material to the controversy, or (5) there was no arbitration agreement between
       the parties. 710 ILCS 5/12(a) (West 2008).

¶ 25           A. Whether the Trial Court Erred in Remanding the March 26 Award
¶ 26       In support of his contention that the trial court lacked authority to remand the March 26
       award to the arbitrator for clarification, Clanton first argues, procedurally, that Ray’s request
       for clarification was untimely under section 9 of the Arbitration Act, because it was not made
       within 20 days of the issuance of the award. Clanton further argues, substantively, that it is
       clear from the March 26 award that the arbitrator intended the defendants to be jointly and
       severally liable for the sum of $550,000, such that Ray would be responsible for the entire
       balance not paid by Raina. Therefore, he says, there was no legitimate basis for seeking
       clarification of the award.
¶ 27       Clanton’s timeliness argument is without merit. Section 9 of the Arbitration Act
       provides, in relevant part:
           “On application of a party to the arbitrators, or, if an application by the court is pending
           under Sections 11, 12, or 13, on submission to the arbitrators by the court under such
           conditions as the court may order, the arbitrators may modify or correct the award upon
           the grounds stated in paragraphs (1) and (3) of subdivision (a) of section 13, or for the
           purpose of clarifying the award. The application shall be made within 20 days after
           delivery of the award to the applicant.” 710 ILCS 5/9 (West 2008).
       Clanton claims that, under this section, since the remand was not made within 20 days after

                                                 -6-
       delivery of the award to the defendants, it was untimely. However, the 20-day limit described
       in this section only serves as a restriction on parties seeking clarification from the arbitrators,
       not as a restriction upon the court. Federal Signal Corp. v. SLC Technologies, Inc., 318 Ill.
       App. 3d 1101, 1113 (2001). The Federal Signal court rejected the plaintiff’s argument that
       the trial court lacked authority to remand an arbitration award for clarification where the
       defendant failed to take any action within the 20-day period allowed under section 9. Id. at
       1112-13. The Federal Signal court explained: “The 20-day limit refers to the ‘application of
       a party to the arbitrators.’ (Emphasis added.) [Citation.] It is not a prohibition upon the
       court’s authority to submit the issue to the arbitrator, where, as here, a party files an
       application to confirm, vacate or modify the arbitrator’s award.” Id. at 1113 (quoting 750
       ILCS 5/9 (West 1998)).1
¶ 28        Bankers Leasing Ass’n v. Pranno, 288 Ill. App. 3d 255 (1997), cited by Clanton on this
       point, is inapposite, because it deals with a party’s application for clarification. More than
       20 days after the arbitrator had issued an award, the defendant sent the arbitrator two letters
       requesting clarification of the award. Id. at 261. However, the defendant never filed a motion
       in the trial court to modify, change, or clarify the award, nor did the trial court remand the
       award for clarification. Id. Under these circumstances, the Bankers Leasing court found that,
       pursuant to section 9 of the Arbitration Act, the arbitrator lacked jurisdiction to clarify the
       award. Id.
¶ 29        Clanton nevertheless points out that the Bankers Leasing court further held that the trial
       court could not remand the “clarified” award to the arbitrator for further clarification, since
       the original application for clarification was void due to its untimeliness. Id. at 264.
       However, that is readily distinguishable from the situation in the present case, since the
       original remand by the court in this case was made by the court, not by application of a party,
       and was therefore timely. On the other hand, in Bankers Leasing, the original application for
       the award was untimely, since it was made by a party and therefore subject to a statutory time
       limitation. Accordingly, when the court in Bankers Leasing remanded that clarified award
       for further clarification, it was a clarified award that was not valid in the first instance when
       it was rendered. Thus, the trial court’s action in this case was permissible under section 9 of
       the Arbitration Act. Indeed, the Federal Signal decision specifically distinguishes Bankers
       Leasing upon these grounds. Federal Signal, 318 Ill. App. 3d at 1113.
¶ 30        Clanton nevertheless argues that, even if the remand was not untimely, it was still
       improper because it was clear from the March 26 award that the arbitrator intended to hold
       the defendants jointly and severally liable for the sum of $550,000, pursuant to which both
       defendants would be liable for the full amount of the award. Under such an interpretation,
       since Raina’s liability was capped at $90,250 by the high/low agreement, which would
       operate extrinsically without the participation of the arbitrator, Ray would necessarily be
       liable for the entire remaining portion of damages. Ray, on the other hand, contends that the


               1
                 Indeed, in his brief, Clanton admits Federal Signal is fatal to his untimeliness argument,
       stating that “pursuant to the Federal Signal decision, *** the trial court could still remand an award
       to the arbitrator even though the application was made beyond the 20-day statutory period.”

                                                    -7-
       March 26 award was ambiguous as to whether the arbitrator intended the defendants to be
       jointly and severally liable, or whether he intended to limit the liability of each defendant to
       50% of $550,000, that is, $275,000. Under the latter interpretation, Ray’s liability would be
       fixed at $275,000, notwithstanding the lower cap on Raina’s liability.
¶ 31        As noted, the March 26 award of the arbitrator was issued as a “Gross Award” of
       $550,000, and the award further stated, “See opinion as to comparative percentage for the
       Defendants.” In the opinion, the arbitrator stated:
                “1. The injuries suffered by plaintiff are indivisible.
                                                   ***
                4. Each defendant is liable at the percentage of 50%.”
¶ 32        Although the arbitrator makes no express statement as to whether defendants are jointly
       and severally liable, Clanton argues that joint and several liability is implicit in the
       arbitrator’s finding that his injuries were indivisible. See Best v. Taylor Machine Works, 179
       Ill. 2d 367, 423 (1997) (under the common law of joint and several liability, where two or
       more defendants tortiously contribute to the same indivisible injury, each defendant may be
       held jointly and severally liable for the entire injury, and the plaintiff may recover
       compensation in full from any individual defendant).
¶ 33        Ray does not directly respond to Clanton’s argument with regard to the implications of
       the arbitrator’s reference to indivisible injury, but she argues that ambiguity is introduced
       through the arbitrator’s statement that “Each defendant is liable at the percentage of 50%.”
       Upon its face, if taken literally, this statement would seem to imply that each defendant
       would be liable for only 50% of the total award, that is, $275,000, rather than being jointly
       and severally liable for the entire award.
¶ 34        Clanton attempts to explain the arbitrator’s reference to 50% liability by arguing that it
       was merely intended to bring the award within the ambit of section 2-1117 of the Code of
       Civil Procedure, which sets forth statutory guidelines for the imposition of joint and several
       liability as follows:
                “Except as provided in Section 2-1118, in actions on account of bodily injury or
            death or physical damage to property, based on negligence, *** all defendants found
            liable are jointly and severally liable for plaintiff’s past and future medical and medically
            related expenses. *** Any defendant whose fault, as determined by the trier of fact, is
            25% or greater of the total fault attributable to the plaintiff, the defendants sued by the
            plaintiff, and any third party defendants except the plaintiff’s employer, shall be jointly
            and severally liable for all other damages.” (Emphasis added.) 735 ILCS 5/2-1117 (West
            2008).
       See Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 78 (2002) (stating that “[t]he
       clear legislative intent behind section 2-1117 is that minimally responsible defendants should
       not have to pay entire damage awards. The legislature set the line of minimal responsibility
       at less than 25%.”). Thus, according to Clanton, in stating that each defendant was “liable
       at the percentage of 50%,” the arbitrator intended that they be found jointly and severally
       liable for nonmedical damages pursuant to this section.


                                                  -8-
¶ 35       However, we are unpersuaded that such an interpretation is necessarily manifest from the
       text. If the arbitrator wanted to invoke section 2-1117, he could have done so explicitly by
       stating that each defendant would be jointly and severally liable for Clanton’s damages under
       section 2-1117. There would be no need for him to employ such a roundabout reference as
       appears in his actual opinion. In this vein, we note that the arbitrator’s statement is not
       framed in terms of “fault,” which is the language used in section 2-1117, but rather states that
       “Each defendant is liable at the percentage of 50%” (emphasis added). By speaking of
       liability instead of fault, it is entirely plausible that the arbitrator intended to set forth a fixed
       allocation of liability for each defendant instead of making an oblique reference to the terms
       of section 2-1117.
¶ 36       Thus, the intent of the arbitrator as to the applicability of joint and several liability cannot
       be ascertained with any certainty from the text of his opinion and therefore remains
       ambiguous. Although, as noted, the arbitrator’s reference to indivisible injury would suggest
       that he may have intended defendants to be jointly and severally liable, his statement that
       each defendant is 50% liable would, on its face, suggest the opposite. In the absence of any
       clarity on this issue, it would have been impossible for the trial court to determine the
       amount due to Clanton once the high/low limits were applied. Accordingly, it was not
       improper for the trial court to exercise its authority under section 9 of the Arbitration Act to
       remand the award for clarification on the applicability of joint and several liability.
¶ 37       In this regard, we find the case of Harris v. Allied American Insurance Co., 152 Ill. App.
       3d 88 (1987), to be instructive. In Harris, following an automobile accident, the plaintiff
       brought suit against the defendant insurer to compel arbitration of her claim arising out of
       that accident. Id. at 88. The parties agreed to seek arbitration on the issues of whether the
       plaintiff was entitled to damages and, if so, the amount that the plaintiff was entitled to
       recover. Id. at 88-89. The arbitrators issued a decision awarding $55,000 to the plaintiff but
       made no determination as to what portion of that award, if any, was due under the insurance
       policy at issue. Id. at 89. Thus, the Harris court found that the award was incomplete and
       lacked finality, and it affirmed the trial court’s denial of the plaintiff’s motion to confirm the
       arbitration award. Id. at 90.
¶ 38       Likewise, in this case, the amount of Ray’s liability could not be determined from the
       award or from the accompanying opinion, there was no error in the trial court’s decision to
       remand the award for clarification. Clanton claims that Harris is inapposite because, he
       states, the March 26 award in this case was complete and left no issue undecided. However,
       this conclusory assertion cannot stand in light of the foregoing discussion as to the ambiguity
       of the award.

¶ 39                      B. Whether the May 6 Award Must be Vacated
¶ 40       Clanton next contends that the May 6 award must be vacated because the award contains
       a gross error of law on its face, insofar as it is premised upon the erroneous legal conclusion
       that the high/low agreement would preclude defendants from being held jointly and severally
       liable for Clanton’s damages. He additionally contends that the award must be vacated
       because the arbitrator exceeded his authority by taking the high/low agreement into account


                                                   -9-
       and by issuing a modification of the award rather than a mere clarification.
¶ 41       As previously discussed, the arbitration agreement entered into by the parties explicitly
       barred the parties from disclosing the high/low agreement to the arbitrator. The agreement
       also specifically provided that lack of compliance with the nondisclosure clause “shall
       constitute a material breach of the agreement.” Nevertheless, it is apparent that, by the time
       the arbitrator issued the May 6 award, he had been told about the high/low agreement.
       Indeed, he explicitly premises the May 6 award upon the presence of that agreement, stating:
                “The doctrine of joint and several liability is not applicable due to the ADR Systems
           high/low limits for each defendant in the contract. The arbitrator’s award is subject to the
           parties’ agreed ADR Systems high/low limits in the arbitration agreement, which limits
           the amount each defendant is liable for. These amounts were not disclosed to the
           arbitrator prior to the March 26, 2010 arbitration decision.
                Pursuant to the agreed arbitration conditions, and the decision of March 26, 2010, I
           am clarifying the following amounts that are owed as follows from each defendant:
                Purnima Ray to pay $275,000 to Steven Clanton
                Dr. Mundeep Raina to pay $90,250 to Steven Clanton.”
       Notwithstanding the arbitrator’s bland assertion that he is clarifying the amounts to be paid,
       the award itself is not framed as a clarification, insofar as the arbitrator does not purport to
       explain his original intent with respect to the applicability of joint and several liability in the
       March 26 award. Rather, the arbitrator states that, regardless of what his original intent might
       have been, his newfound awareness of the high/low agreement prevents him from finding
       the defendants to be jointly and severally liable.
¶ 42       Clanton contends that this reflects an incorrect understanding of the law, arguing that the
       presence of the high/low agreement is not incompatible with joint and several liability. In
       support, he cites Burke v. 12 Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429 (1992), for the
       proposition that, where one joint tortfeasor is partially protected from liability by a personal
       privilege or setoff, the other joint tortfeasor may be held responsible for the entire remaining
       portion of damages. The Burke plaintiff was involved in an altercation at Rothschild’s, a
       liquor and beverage store, and taken into custody by police of the City of Chicago. Id. at 432.
       In plaintiff’s subsequent personal injury suit against Rothschild’s and the city, the trial court
       found Rothschild’s and the city to be jointly and severally liable for plaintiff’s damages. Id.
       at 432. It also found that plaintiff was contributorily negligent with respect to Rothschild’s
       in the amount of 32%, but plaintiff was not contributorily negligent with respect to the city.
       Id. at 434. On appeal, the city contended that it, too, should benefit from the setoff available
       to its codefendant, such that the damages for which the city was responsible would not
       exceed 68% of plaintiff’s total damages. Id. at 452. The Burke court rejected this proposition,
       instead finding that the city, as a joint tortfeasor, could be held responsible for the entire
       amount of the judgment. Id. at 453. The court explained:
           “Where one joint tortfeasor is protected against liability by a personal privilege, the
           liability of the other tortfeasor is not affected. [Citation.] The same principle can be
           applied here. If Rothschild’s had been immune to liability, the City, as codefendant,
           would have been responsible for 100% of the award to plaintiff. That Rothschild’s was

                                                  -10-
            protected by the plaintiff’s contributory negligence from liability for 32% of the award
            does not mean that the City’s liability should be reduced as well.” Id. at 453 (citing
            Restatement (Second) of Torts § 880 (1965) (“If two persons would otherwise be liable
            for a harm, one of them is not relieved from liability by the fact that the other has an
            absolute privilege to act or an immunity from liability to the person harmed.”)).
       See also Henry v. St. John’s Hospital, 138 Ill. 2d 533, 543 (1990) (if a plaintiff settles with
       one defendant, the remaining defendants may still be held jointly and severally liable for the
       full amount of the judgment minus the amount of the settlement). Thus, under Burke, where
       two defendants are responsible for plaintiff’s indivisible injury, the fact that one defendant’s
       liability is capped does not preclude the applicability of joint and several liability, and, in
       such a situation, the cap on the first defendant’s liability does not affect the liability of the
       other defendant, from whom plaintiff may still recover his full measure of damages. It would
       therefore seem that the arbitrator erred in stating that the high/low agreement would render
       the doctrine of joint and several liability inapplicable.
¶ 43        Ray does not attempt to argue that the reasoning of Burke would be inapplicable to the
       facts of the instant case but, rather, makes the conclusory claim that any error made by the
       arbitrator in this regard would not be sufficient to constitute gross error. However, we need
       not decide whether this is sufficient to constitute gross error, because we find that, in any
       event, by basing the May 6 award upon the high/low agreement, the arbitrator exceeded his
       authority under the parties’ arbitration agreement, which is grounds for vacatur under section
       12(a)(3) of the Arbitration Act. 710 ILCS 5/12(a) (West 2010) (“Upon application of a party,
       the court shall vacate an award where: *** (3) The arbitrators exceeded their powers ***.”).
       “[P]arties are only bound to arbitrate those issues which by clear language they have agreed
       to arbitrate; arbitration agreements will not be extended by construction or implication.”
       Flood v. Country Mutual Insurance Co., 41 Ill. 2d 91, 94 (1968). Thus, for instance, in Lee
       B. Stern & Co. v. Zimmerman, 277 Ill. App. 3d 423, 427 (1995), the court held that the
       arbitrators exceeded their powers by including attorney fees in the arbitration award where
       the arbitration award did not provide for the assessment of such fees, and it vacated that
       portion of the award granting attorney fees. Similarly, in Edward Electric Co. v. Automation,
       Inc., 229 Ill. App. 3d 89, 105 (1992), the court vacated an arbitration award of punitive
       damages where the parties’ arbitration agreement did not expressly provide the arbitrators
       with the authority to award punitive damages.
¶ 44        Likewise, in the present case, the arbitrator was not authorized to know about the
       high/low agreement. Indeed, the parties were explicitly prohibited from disclosing that
       agreement to him. Thus, in basing the May 6 award upon that agreement, the arbitrator
       exceeded the authority granted to him by the parties.
¶ 45        Ray nevertheless contends that vacatur of the May 6 award is not required, citing
       Hawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175 (2000). In Hawrelak, the parties
       appointed three arbitrators to hear their case–one selected by the plaintiff, one selected by the
       defendant, and one selected by both parties as a neutral arbitrator. Id. at 177. After the
       hearing, but before an award had officially been issued, the defendant’s arbitrator informed
       the defendant of the substance of the award. Id. The Hawrelak court held that this premature
       disclosure did not warrant vacatur of the award, because the record affirmatively rebutted any

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       claim that the premature disclosure prejudiced plaintiff in any way. Id. at 180. In particular,
       the court noted the testimony of the neutral arbitrator, apparently unrebutted, that the
       arbitrators had already reached their majority decision prior to the premature disclosure of
       their ruling, and the premature disclosure had no impact upon the final award. Id.
¶ 46       By contrast, in the present case, the ambiguity of the March 26 agreement that
       necessitated a remand for clarification in the first place makes it impossible to now determine
       whether the arbitrator’s illicit knowledge caused any prejudice to Clanton. If, in the original
       March 26 award, the arbitrator intended to hold the defendants jointly and severally liable,
       then the change wrought in the May 6 award by his knowledge of the high/low agreement
       would have prejudiced Clanton by reducing his total recovery; if, on the other hand, the
       arbitrator originally intended to hold each defendant liable for the flat sum of $275,000, then
       Clanton’s recovery would have remained the same. Yet we cannot tell from the text of the
       March 26 award which of these scenarios is true, for all the reasons discussed above, and the
       May 6 award provides no illumination in this regard, since it does not purport to state what
       the arbitrator’s original intent was as of March 26 but merely bases its finding upon the
       presence of the high/low agreement. The facts of Hawrelak, from which the court was able
       to determine that the arbitrator’s improper conduct did not prejudice the plaintiff in any way,
       are therefore inapposite. Id.
¶ 47       Accordingly, the May 6 award must be vacated under section 12(a)(3) of the Arbitration
       Act, since it was premised upon the arbitrator’s knowledge of information that the arbitrator
       was not permitted to know under the parties’ arbitration agreement and it is impossible to
       determine that Clanton was not thereby prejudiced. However, contrary to Clanton’s assertion,
       the March 26 award cannot be reinstated, because, as noted, it is ambiguous on its face as to
       the applicability of joint and several liability and, therefore, to the amount of Ray’s liability.
       Consequently, judgment cannot be entered on either award. Nor can the case be re-remanded
       to the same arbitrator for further clarification, since the arbitrator has been exposed to
       information about the high/low agreement. Thus, Clanton and Ray, who is the only defendant
       in this appeal, must be left in the same position in which they found themselves before the
       original arbitration commenced, except that they may not select the same arbitrator without
       explicit agreement to do so.
¶ 48       For the foregoing reasons, we reverse and remand for proceedings not inconsistent with
       this order.

¶ 49       Reversed and remanded.




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