{ "id": 25424, "name": "GOVERNMENT EMPLOYEES INSURANCE COMPANY, as Subrogee of Robert Bower, Plaintiff-Appellee, v. BARBRIELLE BUFORD, Defendant and Third-Party Plaintiff-Appellant (Robert Bower, Third-Party DefendantAppellee)", "name_abbreviation": "Government Employees Insurance v. Buford", "decision_date": "2003-03-26", "docket_number": "No. 1-02-1664", "first_page": "448", "last_page": "457", "citations": [ { "type": "official", "cite": "338 Ill. App. 3d 448" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "613 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "155 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4809706 ], "year": 1993, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0223-01" ] }, { "cite": "467 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596980 ], "year": 1984, "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1024-01" ] }, { "cite": "508 N.E.2d 312", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3465144 ], "year": 1987, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0687-01" ] }, { "cite": "641 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 555", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333095 ], "year": 1994, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0555-01" ] }, { "cite": "341 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963132 ], "year": 1976, "pin_cites": [ { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0861-01" ] }, { "cite": "590 N.E.2d 1013", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794097 ], "year": 1992, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0148-01" ] }, { "cite": "557 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "136 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255119 ], "year": 1990, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0450-01" ] }, { "cite": "692 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45718 ], "year": 1998, "pin_cites": [ { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0784-01" ] }, { "cite": "457 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594312 ], "year": 1983, "pin_cites": [ { "page": "396-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0395-01" ] }, { "cite": "658 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "168 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307264 ], "year": 1995, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0083-01" ] }, { "cite": "688 N.E.2d 653", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "179 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801362 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "275" }, { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0271-01" ] }, { "cite": "681 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 640", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596967 ], "year": 1997, "pin_cites": [ { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0640-01" ] }, { "cite": "652 N.E.2d 1286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258636 ], "year": 1995, "pin_cites": [ { "page": "904-05" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0893-01" ] }, { "cite": "742 N.E.2d 1245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "318 Ill. App. 3d 790", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279545 ], "year": 2000, "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0790-01" ] }, { "cite": "733 N.E.2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 77", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980632 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "85" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0077-01" ] }, { "cite": "756 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 736", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256348 ], "year": 2001, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0736-01" ] }, { "cite": "459 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "391-92" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] }, { "cite": "635 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5370005 ], "year": 1994, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0161-01" ] }, { "cite": "640 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887212 ], "year": 1994, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0286-01" ] } ], "analysis": { "cardinality": 813, "char_count": 22694, "ocr_confidence": 0.759, "pagerank": { "raw": 1.0322486415935613e-07, "percentile": 0.5484161431805483 }, "sha256": "8e14d2f0c6d121ff1e1f15a9a29b51a457199a54b9c3f8f42c1b40e5f813e267", "simhash": "1:723a646c75c7643c", "word_count": 3790 }, "last_updated": "2023-07-14T21:28:15.941926+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GOVERNMENT EMPLOYEES INSURANCE COMPANY, as Subrogee of Robert Bower, Plaintiff-Appellee, v. BARBRIELLE BUFORD, Defendant and Third-Party Plaintiff-Appellant (Robert Bower, Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe defendant, Barbrielle Buford, appeals from orders of the circuit court which: prospectively barred her from testifying and presenting evidence at a mandatory arbitration hearing if she failed to answer written discovery by a specified date; barred her from rejecting an arbitration award in favor of the plaintiff, Government Employees Insurance Company; entered judgment on the arbitration award in favor of the plaintiff; and modified the judgment entered in favor of the plaintiff on the arbitration award to include a judgment in favor of the third-party defendant, Robert Bower, on the defendant\u2019s third-party complaint for contribution. For the reasons that follow, we affirm.\nFrom the limited record before us, we are able to glean the following facts. The plaintiff filed the instant action as subrogee of Robert Bower, asserting a negligence claim against the defendant as the consequence of a collision involving motor vehicles driven by Bower and the defendant. The complaint alleged that the plaintiff insured Bower\u2019s vehicle and, as a consequence, became subrogated to his rights against the defendant when it paid for the repairs to Bower\u2019s vehicle. The plaintiff sought recovery for the damages to Bower\u2019s vehicle.\nThe defendant answered the plaintiffs complaint, admitting that she was involved in the collision alleged, but denying all charges of negligence. In addition, the defendant filed a \u201cThird Party Complaint for Contribution\u201d against the plaintiffs subrogor, Bower, alleging that Bower was negligent in the operation of his motor vehicle and seeking a judgment in favor of the defendant and against Bower \u201cfor Contribution in whole or in part for the negligence attributable to the Third Party Defendant [Bower].\u201d Bower answered the third-party complaint, denying all of the charging allegations contained therein.\nOn October 26, 2000, Judge McCarthy entered an order which, among other things, set February 23, 2001, as the date upon which all discovery was to be completed and assigned the case for mandatory arbitration.\nOn February 6, 2001, the plaintiff filed a motion asserting that the defendant had failed to answer interrogatories which were sent to her attorneys on November 20, 2000, and had also failed to respond to a production request sent on the same date. As a sanction, the plaintiff requested that the defendant be barred from testifying or offering evidence either at the arbitration hearing or upon the trial of the cause. On February 15, 2001, Judge McCarthy entered an \u201cAgreed Order\u201d which provided that the defendant was to answer written discovery by March 15, 2001, and that her failure to comply would result in her \u201cbeing barred from testifying and presenting evidence at the arbitration and/or trial of this matter.\u201d The order also provided that the sanction would remain in effect until vacated \u201cupon motion by the party against whom the sanction applies.\u201d The record does not contain a transcript of the hearing on February 15, 2001, or a certified bystander\u2019s report of the proceedings held on that date.\nOn March 29, 2001, without leave of court, the defendant filed tardy answers to the plaintiffs interrogatories. There is no evidence in the record that the defendant responded to any production request.\nAn arbitration hearing was held in the instant matter on April 30, 2001. On that date, the arbitrators entered an award in the sum of $7,486.93 plus costs in favor of the plaintiff and against the defendant, which amounted to the full prayer for damages contained in the plaintiffs complaint. The award also provided that: \u201cDefendant was barred from testifying and introducing evidence, pursuant to court order.\u201d The record does not contain a transcript of the arbitration proceeding.\nOn May 7, 2001, the defendant filed a motion to vacate the February 15, 2001, order. In support of this motion, the defendant alleged that she filed her answers to interrogatories on March 29, 2001, that she appeared at the arbitration hearing on April 30, 2001, and that the plaintiff would not be prejudiced if the February 15 order were vacated and she was permitted to testify at trial.\nOn May 10, 2001, the defendant filed a notice of rejection of the arbitration award and requested a trial.\nOn June 21, 2001, Judge Laurie denied the defendant\u2019s motion to vacate the February 15, 2001, order. The record does not contain a transcript or a certified bystander\u2019s report of the proceedings held on that date.\nOn July 2, 2001, the plaintiff filed a motion seeking an order barring the defendant from rejecting the arbitration award, asserting as grounds both that the defendant was barred from presenting any evidence and that she pled guilty to making an improper left turn. On August 10, 2001, Judge Laurie entered judgment on the arbitration award in favor of the plaintiff in the sum of $7,486.93 plus costs and also granted the plaintiffs motion to bar the defendant from rejecting the award. Again, however, the record does not contain a transcript of the hearing on August 10. The record does contain what purports to be a bystander\u2019s report of those proceedings, but there is nothing in the record indicating that the trial court ever certified that report of proceedings as required by Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)).\nOn September 7, 2001, the defendant filed a notice of appeal. However, we dismissed that appeal on March 21, 2002, for want of jurisdiction. We found that, since no order had been entered disposing of the defendant\u2019s third-party claim against Bower, the trial court\u2019s judgment of August 10, 2001, was not appealable in the absence of any Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) findings. Government Employees Insurance Co. v. Buford, No. 1 \u2014 01\u20143321 (2002) (unpublished order under Supreme Court Rule 23).\nOn March 25, 2002, the plaintiff filed a motion in the circuit court requesting that the order of August 10, 2001, be modified to reflect that judgment was also entered against the defendant on her third-party complaint against Bower. On May 2, 2002, Judge Lustig granted the motion and so modified the judgment. The record does not contain a transcript of the May 2 hearing, but it does contain an amended bystander\u2019s report of those proceedings certified by Judge Lustig.\nOn May 30, 2002, the defendant filed a timely notice of appeal. In urging reversal of the judgments entered by the circuit court in favor of the plaintiff and Bower, the defendant contends that the trial court: 1) abused its discretion in barring her from rejecting the arbitration award, 2) erred in failing to vacate the order of February 15, 2001, 3) deprived her of her constitutional right to a trial by jury by barring her from rejecting the arbitration award, and 4) erred as a matter of law in entering judgment in favor of Bower on her third-party complaint for contribution.\nAs a preliminary matter, we must reject the defendant\u2019s arguments that the trial court erred either in entering its order of February 15, 2001, barring her from testifying at the arbitration hearing or at trial in the event that she failed to answer written discovery by March 15, 2001, or in declining to vacate that order on June 21, 2000. As the defendant concedes in her brief, neither a discovery sanction nor an order declining to vacate a discovery sanction will be reversed on appeal absent an abuse of discretion on the part of the circuit court. Workman v. St. Therese Medical Center, 266 Ill. App. 3d 286, 293, 640 N.E.2d 349 (1994). Due to the absence in the record of any transcripts of the proceedings before the trial court on February 15, 2001, and June 21, 2001, or any bystander\u2019s reports of those proceedings certified in accordance with Supreme Court Rule 323(c), we are unable to address the issue of whether the trial court abused its discretion in entering either order.\nFrom the scant record before us, we have no means to determine the prejudice, if any, that the plaintiff suffered by reason of the defendant\u2019s failure to answer written discovery within the time provided in the circuit court\u2019s order of February 15, 2001. Further, although the record reflects that the defendant ultimately filed tardy answers to interrogatories, there is no evidence in the record that she ever responded to the plaintiffs production request. The record filed in this case is also insufficient to allow any meaningful assessment of the trial court\u2019s reasoning in entering its orders of February 15, 2001, and June 21, 2001.\nAs the appellant, the defendant has the burden of providing a sufficiently complete record to support any claim of error. EDN Real Estate Corp. v. Marquette National Bank, 263 Ill. App. 3d 161, 167, 635 N.E.2d 738 (1994). In the absence of such a record, we must presume that the trial court\u2019s orders of February 15, 2001, and June 21, 2001, were in conformity with the law and had a sufficient factual basis. Foutch v. O\u2019Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984).\nWe turn next to the question of whether the trial court erred in barring the defendant from rejecting the arbitration award and entering judgment thereon. Pursuant to the provisions of Supreme Court Rule 91 (145 Ill. 2d R. 91), two grounds exist for barring a party from rejecting an arbitration award, namely, unexcused absence from the arbitration hearing and a lack of good faith and meaningful participation at that hearing. State Farm Insurance Co. v. Rodrigues, 324 Ill. App. 3d 736, 740, 756 N.E.2d 359 (2001). In this case, it is uncontroverted that the defendant appeared at the arbitration hearing. As a consequence, the only basis for barring her from rejecting the arbitration award could have been a finding that she failed to participate in the hearing in good faith and in a meaningful manner. See 145 Ill. 2d R. 91(b).\nAlthough permitted to do so under Rule 91(b), the arbitration panel made no finding that the defendant failed to participate in good faith or in a meaningful manner. The award merely recites that the defendant \u201cwas barred from testifying and from introducing evidence, pursuant to court order.\u201d However, the circuit court is not precluded from finding bad faith on the part of a party to an arbitration proceeding merely because the arbitrators made no such finding. Schmidt v. Joseph, 315 Ill. App. 3d 77, 85, 733 N.E.2d 694 (2000).\nA trial court\u2019s order barring a party from rejecting an arbitration award will be reversed on appeal only in circumstances where the trial court has abused its discretion, which occurs when the trial court has acted arbitrarily or when its ruling exceeds the bounds of reason. Schmidt, 315 Ill. App. 3d at 81. The defendant has raised a number of arguments in support of her contention that the trial court abused its discretion in this case. She asserts that she did in fact participate in the arbitration proceeding in good faith. According to the defendant, although barred from testifying or offering any evidence, she appeared at the arbitration proceeding in person and by counsel and her attorney both argued the case and cross-examined the plaintiff\u2019s witnesses. However, other than her assertion that she appeared at the arbitration hearing, the defendant\u2019s remaining contentions are unsupported by the record. The record does not contain either a transcript of the arbitration proceeding or a transcript of the hearing before the trial court on August 10, 2001, the date that the court granted the plaintiffs motion to bar the defendant from rejecting the arbitration award and entered judgment thereon. We have no way of knowing the extent of the defendant\u2019s participation at the arbitration hearing or what evidence, if any, was presented to the circuit court on the issue. What we do know from the record is that the defendant was barred from testifying or offering any evidence at the arbitration hearing by reason of her failure to comply with the trial court\u2019s order of February 15, 2001, which required that she respond to written discovery by March 15, 2001. The record also reflects that, although the defendant filed tardy answers to interrogatories on March 29, 2001, approximately one month prior to the arbitration hearing, she made no attempt to vacate or modify the order of February 15, 2001, even though she knew of its consequences upon her ability to testify or offer evidence at the hearing. It was not until after the arbitration hearing that the defendant moved to vacate the February 15, 2001, order so as to allow her to testify at trial after she rejected the arbitration award. We believe that these facts might well have led the trial court to reasonably conclude that the defendant never intended to participate in the arbitration proceeding in good faith. See Eichler v. Record Copy Services, 318 Ill. App. 3d 790, 792, 742 N.E.2d 1245 (2000). In any case, by failing to furnish us with either a transcript of the hearing before the trial court on August 10, 2001, or a bystander\u2019s report of those proceedings duly certified in accordance with Supreme Court Rule 323(c), the defendant has not provided a sufficiently complete record to support her claim of error on this issue. The record in this case does not inform us as to the evidence presented to the trial court in support of the plaintiffs motion to bar the defendant from rejecting the arbitration award or the basis upon which the court granted the motion. As a consequence, we must presume that the trial court\u2019s order was supported by a sufficient factual basis, was in conformity with the law, and did not constitute an abuse of discretion. Foutch, 99 Ill. 2d at 392.\nThe defendant also argues that her constitutional right to a trial by jury was violated when the trial court entered judgment on the arbitration award after barring her rejection thereof. If, by this argument, the defendant is contending that the trial court abused its discretion in failing to vacate its February 15, 2001, order to permit her to testify at trial and in granting the plaintiffs motion to bar her from rejecting the arbitration award, and, as a result, violated her right to a trial by jury, we reject the argument for the reasons stated earlier. We also reject the argument if the defendant is asserting that the provisions of Supreme Court Rule 91, which permit a trial court to bar a litigant from rejecting an arbitration award, are in themselves unconstitutional. The same argument has been rejected by this court when addressed to the trial court\u2019s ability to bar a rejection of an arbitration award pursuant to Supreme Court Rule 90(g) (166 Ill. 2d R. 90(g)) by reason of a party\u2019s failure to comply with a Supreme Court Rule 237(b) notice (166 Ill. 2d R. 237(b)). Williams v. Dorsey, 273 Ill. App. 3d 893, 904-05, 652 N.E.2d 1286 (1995); see also State Farm Insurance Co. v. Gebbie, 288 Ill. App. 3d 640, 642, 681 N.E.2d 595 (1997). We can find no logical basis for not applying that same rationale and rejecting the argument when addressed to the provisions of Rule 91.\nFinally, we address the defendant\u2019s argument that the trial court erred when, on May 2, 2002, it modified its judgment of August 10, 2001, to provide that judgment was also entered in favor of Bower on the defendant\u2019s third-party complaint for contribution. The defendant argues that the circuit court was without authority to modify the provisions of the arbitration award or grant relief in addition to that awarded by the arbitrators. See Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 275, 688 N.E.2d 653 (1997).\nSupreme Court Rule 92(b) provides that an arbitration award \u201cshall dispose of all claims for relief.\u201d 155 Ill. 2d R. 92(b). In this case, the arbitration award did not dispose of the defendant\u2019s third-party complaint for contribution against Bower. Although the trial court is authorized to correct obvious and unambiguous errors in mathematics or language contained in an arbitration award (see 155 Ill. 2d R. 92(d)), it is not authorized to modify any substantive provisions or grant additional relief (Cruz, 179 Ill. 2d at 275). Nevertheless, the trial court modified the judgment that it entered on the arbitration award in favor of the plaintiff to also grant judgment in favor of Bower on the defendant\u2019s third-party complaint. We are unable to find any authority for the trial court\u2019s action in this regard.\nAs justification for the modification, the motion filed by the plaintiff and Bower merely asserted that: \u201cSince the arbitrators awarded Plaintiff, Geico, the full amount of its subrogation claim, there could have been no finding of contributory negligence on the part of Robert Bower.\u201d We would agree with the assertion if what was at issue was an affirmative defense grounded in allegations of contributory negligence. However, the defendant raised no such defense. Instead, she pled an action for contribution against Bower, the plaintiffs subrogor, and sought relief in the form of a judgment against him.\nThus, the arbitrators did not dispose of the claim which the defendant asserted against Bower in her third-party complaint, and we can find no authority for the trial court\u2019s action in modifying its judgment on the arbitration award to include a judgment in favor of Bower. Nonetheless, our analysis continues. As a reviewing court, we may sustain the decision of a trial court on any grounds called for by the record, regardless of whether the trial court relied upon those grounds and regardless of whether the trial court\u2019s reasoning was correct. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97, 658 N.E.2d 450 (1995).\nWhen this court examined the initial briefs filed by the parties in this case, a question arose as to whether, under the circumstances of this case, the defendant could ever maintain a successful contribution action against the plaintiff\u2019s subrogor, Bower. As a consequence, we ordered the parties to file supplemental briefs addressed to the issue. Having reviewed those briefs and considering the factual context in which the defendant\u2019s contribution claim was filed, we conclude that Bower was entitled to the entry of a judgment in his favor on the defendant\u2019s third-party complaint for contribution as a matter of law.\nThe plaintiff filed the instant action as subrogee of Bower, its insured. As such, the plaintiff could only enforce the rights which Bower possessed against the defendant (Continental Casualty Co. v. Polk Brothers, Inc., 120 Ill. App. 3d 395, 396-97, 457 N.E.2d 1271 (1983)) and its claim was subject to all defenses which might have been raised against Bower (see Intergovernmental Risk Management v. O\u2019Donnell, Wicklund, Pigozzi & Peterson Architects, Inc., 295 Ill. App. 3d 784, 800, 692 N.E.2d 739 (1998)). Put another way, the plaintiff stepped into the shoes of Bower. As a consequence, the defendant could have pled Bower\u2019s contributory negligence as an affirmative defense to the plaintiffs claim. However, the defendant raised no such defense. Instead, she pled what purported to be a third-party complaint for contribution against Bower and sought relief in the form of a judgment against him. For the reasons which follow, we find that the facts alleged and admitted in the parties\u2019 pleadings show that there is no issue of fact to be tried relating to the defendant\u2019s third-party complaint and that Bower is entitled to judgment as a matter of law.\n\u201c[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them.\u201d 740 ILCS 100/ 2(a) (West 1998). The basis for one\u2019s contribution liability rests on his liability in tort to the injured party. Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 457, 557 N.E.2d 873 (1990). Consequently, a contribution action cannot be maintained against a party who is not subject to liability in tort. Cornett v. Gromann Service Co.-Retail, 227 Ill. App. 3d 148, 153, 590 N.E.2d 1013 (1992).\nThe plaintiff brought the instant action as subrogee to the rights of Bower, premised upon the defendant\u2019s alleged tort liability to Bower for damages to Bower\u2019s vehicle. Since Bower cannot, as a matter of law, be hable in tort to himself, he cannot be liable in contribution to the defendant for damage to his own property. Whatever contributory negligence that Bower may have been guilty of that proximately caused damage to his vehicle might well have been the basis for the defendant asserting an affirmative defense against the plaintiffs claim, but it could never form the basis of an action for contribution against Bower.\nWhen, as in this case, a complaint fails to tender a triable issue of fact and is insufficient as a matter of law, judgment on the pleadings is appropriate. See Pollack v. Marathon Oil Co., 34 Ill. App. 3d 861, 867, 341 N.E.2d 101 (1976). The total failure of a complaint to state a cause of action is a fundamental defect which may be raised at any time by any means, even for the first time on appeal. Foley v. Santa Fe Pacific Corp., 267 Ill. App. 3d 555, 561, 641 N.E.2d 992 (1994). The defect cannot be waived (Morrison v. Forest Preserve District, 155 Ill. App. 3d 687, 689, 508 N.E.2d 312 (1987)) and may be raised by the court sua sponte (Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1028, 467 N.E.2d 915 (1984)). We hold, therefore, that Bower was, as a matter of law, entitled to the entry of a judgment in his favor on the defendant\u2019s third-party complaint for contribution. Although we are slow to dispose of a complaint on grounds not asserted before the trial court (see Geaslen v. Berkson, Gorov & Levin, Ltd., 155 Ill. 2d 223, 230, 613 N.E.2d 702 (1993)), in a case such as this one, where the parties have been afforded an opportunity to brief the issue and the defect is not correctable, we believe that our action is appropriate.\nFor the foregoing reasons, we affirm the judgment entered by the circuit court in favor of the plaintiff on the award of the arbitrators and affirm the judgment entered in favor of Bower on the defendant\u2019s third-party complaint for contribution.\nAffirmed.\nSOUTH, EJ., and HALL, J., concur.", "type": "majority", "author": "JUSTICE HOFFMAN" } ], "attorneys": [ "Parrillo, Weiss & O\u2019Halloran, of Chicago (Keely Truax, of counsel), for appellant.", "Law Office of Kevin J. Kawa, of Chicago (Kevin M. Gross, of counsel), for appellees." ], "corrections": "", "head_matter": "GOVERNMENT EMPLOYEES INSURANCE COMPANY, as Subrogee of Robert Bower, Plaintiff-Appellee, v. BARBRIELLE BUFORD, Defendant and Third-Party Plaintiff-Appellant (Robert Bower, Third-Party Defendant-Appellee).\nFirst District (3rd Division)\nNo. 1 \u2014 02\u20141664\nOpinion filed March 26, 2003.\nParrillo, Weiss & O\u2019Halloran, of Chicago (Keely Truax, of counsel), for appellant.\nLaw Office of Kevin J. Kawa, of Chicago (Kevin M. Gross, of counsel), for appellees." }, "file_name": "0448-01", "first_page_order": 466, "last_page_order": 475 }