2013 IL 115601
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 115601)
AMERICAN ACCESS CASUALTY COMPANY, Appellant, v.
ANA REYES et al., Appellees.
Opinion filed December 19, 2013.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier,
and Theis concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 In this case, the appellate court concluded that an automobile
liability insurance policy which excludes from coverage the only
named insured and owner of the insured vehicle is against public
policy, reversing the judgment of the circuit court which found that
the policy provided no coverage. 2012 IL App (2d) 120296. For the
reasons set forth below, we affirm the appellate court.
¶2 BACKGROUND
¶3 In September 2007, plaintiff, American Access Casualty
Company (American Access), issued an automobile liability
insurance policy to defendant, Ana Reyes, which insured a 1999
Chrysler 300M. On the application, Reyes was identified as the
titleholder of the vehicle. Under the “Operator Information” section
of the policy, Reyes was identified as driver number one but where
the driver’s license number was to be included, it stated “TITLE
HOLDER EXCLUDE.” Jose M. Cazarez, Reye’s “friend,” was listed
as driver number two and was identified as the “Pri[mary]” driver.
Next to his name was an out of country/international driver’s license
number. On the “Declarations” sheet, Reyes was identified as the
“named insured.” Reyes and Cazarez were both again listed as
“operators.” However, the notation “EXCLUDED” appeared next to
Reyes’ name.
¶4 Reyes also executed an “ENDORSEMENT EXCLUDING
SPECIFIED OPERATORS.” This endorsement provided: “In
consideration of the premium at which this policy is written,
notwithstanding any other provision of the policy, it is agreed that no
coverage is afforded undes [sic] policy and to any claim or suit which
occurs as the result of the vehicle being operated by the following
person(s)” after which Reyes was identified. The actual policy itself
defined “named insured” as “the individual named in the Declarations
and also includes his/her spouse, if a resident of the same household.”
The policy further contained a clause excluding liability coverage for
any bodily injury or property damage caused by “any automobile
while in control of an excluded operator.” Thus, under the policy,
Reyes was the sole “named insured” but she was excluded from
coverage.
¶5 On October 30, 2007, Reyes was driving her vehicle when she
was involved in a traffic accident with two pedestrians, Rocio Jasso
and her four-year-old son, Sergio. Rocio was seriously injured and
Sergio died as a result of his injuries. Rocio and her husband, Brigido
Jasso, filed a lawsuit against Reyes, alleging negligence and wrongful
death. In response to this lawsuit, American Access filed the instant
action, seeking a declaration that the policy it issued to Reyes
provided no coverage for, and no duty to defend or indemnify, any
claims and litigation arising from the accident. State Farm Insurance
Company, which provided uninsured-motorist coverage to Rocio,
answered the declaratory action and filed a counter complaint for
declaratory judgment. State Farm alleged that American Access’
attempt to exclude Reyes under the insurance policy violated public
policy and therefore was unlawful.
¶6 The circuit court of Kane County granted summary judgment in
favor of American Access, finding that the insurance policy provided
no coverage for the accident. The appellate court reversed and
remanded, holding that a blanket exclusion in an insurance policy,
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which precludes all liability coverage for the only named insured,
violated public policy. 2012 IL App (2d) 120296. We granted
American Access’ petition for leave to appeal (Ill. S. Ct. R. (eff. Feb.
26, 2010)).
¶7 Analysis
¶8 Section 7-601(a) of the Illinois Safety and Family Financial
Responsibility Law (625 ILCS 5/7-601(a) (West 2010)), a part of the
Illinois Vehicle Code (Code), requires liability insurance coverage for
all motor vehicles designed to be used on a public highway.
Progressive Universal Insurance Co. of Illinois v. Liberty Mutual
Fire Insurance Co., 215 Ill. 2d 121, 128 (2005); State Farm Mutual
Automobile Insurance Co. v. Smith, 197 Ill. 2d 369, 373 (2001).
Section 7-317(b)(2) of the Code mandates that a liability policy
“[s]hall insure the person named therein and any other person using
or responsible for the use of such motor vehicle or vehicles with the
express or implied permission of the insured.” 625 ILCS
5/7-317(b)(2) (West 2010); Progressive, 215 Ill. 2d at 128; Smith,
197 Ill. 2d at 373. This latter provision is commonly referred to as an
“omnibus clause” and because it is required by statute, we have held
that the clause must be read into every liability policy. Progressive,
215 Ill. 2d at 128; State Farm Mutual Automobile Insurance Co. v.
Universal Underwriters Group, 182 Ill. 2d 240, 243-44 (1998). The
principal purpose of this state’s mandatory liability insurance
requirement is to protect the public by securing payment of their
damages. Progressive, 215 Ill. 2d at 129; Smith, 197 Ill. 2d at 376.
¶9 The issue in this case is whether an automobile liability policy can
exclude the only named insured and owner of the vehicle without
violating public policy. When a statute exists for the protection of the
public, it cannot be overridden through private contractual terms.
Progressive, 215 Ill. 2d at 129. One reason for this rule is that “the
members of the public to be protected are not and, of course, could
not be made parties to any such contract.” American Country
Insurance Co. v. Wilcoxon, 127 Ill. 2d 230, 241 (1989). Where
liability coverage is mandated by statute, a contractual provision in an
insurance policy which conflicts with the statute will be deemed void.
Progressive, 215 Ill. 2d at 129. When we assess whether a statutory
provision prevails over a contractual provision, however, we must
keep in mind that parties have freedom to contract as they desire. Id.
We have reasoned:
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“The freedom of parties to make their own agreements, on the
one hand, and their obligation to honor statutory
requirements, on the other, may sometimes conflict. These
values, however, are not antithetical. Both serve the interests
of the public. Just as public policy demands adherence to
statutory requirements, it is in the public’s interest that
persons not be unnecessarily restricted in their freedom to
make their own contracts.” Id.
Accordingly, we use our power to declare a contractual provision
void as against public policy sparingly. Id. A contractual provision
will not be invalidated on public policy grounds unless it is clearly
contrary to what the constitution, the statutes, or the decisions of the
courts have declared to be the public policy or unless it is manifestly
injurious to the public welfare. Id. at 129-30. Such a determination
depends upon the particular facts and circumstances of each case. Id.
at 130.
¶ 10 State Farm contends that, under the plain language of the Code,
coverage is required for Reyes. We agree. The primary objective of
statutory construction is to ascertain and give effect to the
legislature’s intent. Citizens Opposing Pollution v. ExxonMobil Coal
U.S.A., 2012 IL 111286, ¶ 23. The best indicator of the legislature’s
intent is the language of the statute itself, given its plain and ordinary
meaning. Id.
¶ 11 The plain and unambiguous language of section 7-317(b)(2)
mandates that an automobile liability policy cover the “person named
therein.” In this case, Reyes is the “person named therein.” In fact,
Reyes is the only person named therein as the applicant, owner of the
vehicle, and, according to the Declarations, the “named insured.”
Excluding the “person named therein,” who is required to be covered
by the Code, through a contractual provision, violates section 7-
317(b)(2) and, therefore, public policy.
¶ 12 Despite the clear import of section 7-317(b)(2), American Access
argues that requiring the “named insured” to be covered distorts the
legislature’s intent by substituting words not found in the statute.
According to American Access, that section 7-317(b)(2) uses the
phrase “person named therein” rather than “named insured” is
significant. We disagree.
¶ 13 This court has previously concluded that the phrase “person
named therein” is synonymous with “named insured.” Universal, 182
Ill. 2d at 244 (concluding that section 7-601(a), together with section
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7-317(b)(2), mandates that “a liability insurance policy issued to the
owner of a vehicle must cover the named insured and any other
person using the vehicle with the named insured’s permission”);
Smith, 197 Ill. 2d at 374 (“Section 7-317(b)(2) is clear. It mandates
that a motor vehicle liability policy, or a liability insurance policy,
cover the named insured and any other person using the vehicle with
the named insured’s permission.”). Moreover, the legislature itself
equates “person named therein” with “insured” in section 7-317(b)(2)
since it utilizes both terms. The legislature uses “person named
therein” in the first clause and then “insured” in the second clause
when addressing permissive users. Clearly, the legislature intended
both terms to have the same meaning. As such, American Access’
argument to the contrary is unpersuasive. Here, according to
American Access’ own Declarations page, Reyes is the named
insured. And, in the policy itself, the “named insured” is identified as
the person named in the Declarations, which is Reyes, and his/her
spouse. Accordingly, under the above authority and pursuant to the
plain and clear language of section 7-317(b)(2), Reyes cannot be
excluded from coverage under the policy.
¶ 14 Nonetheless, American Access contends that requiring the named
insured to be covered conflicts with Illinois law because this court
and various appellate court decisions have upheld named driver
exclusions. See, e.g., Dungey v. Haines & Britton, Ltd., 155 Ill. 2d
329 (1993); Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d
389 (1974); Rockford Mutual Insurance Co. v. Economy Fire &
Casualty Co., 217 Ill. App. 3d 181 (1991); St. Paul Fire & Marine
Insurance Co. v. Smith, 337 Ill. App. 3d 1054 (2003); American
Service Insurance Co. v. Arive, 2012 IL App (1st) 111885. American
Access points out that Reyes executed an endorsement which
excluded her from coverage as a named driver. According to
American Access, this was proper under Illinois law. Again, we
disagree.
¶ 15 There is no question that, as a general matter, named driver
exclusions are permitted in Illinois. Dungey, 155 Ill. 2d at 336;
Phelan, 59 Ill. 2d at 396; Arive, 2012 IL App (1st) 111885, ¶ 17;
Smith, 337 Ill. App. 3d at 1060; Rockford, 217 Ill. App. 3d at 187.
However, as State Farm points out, none of the authorities relied upon
by American Access address the question at issue here—whether the
sole named insured and owner can be excluded from coverage. In
Dungey, we upheld a named driver exclusion for the husband of the
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named insured wife. In Phelan, the issue was whether the excluded
driver, who was the insured’s teenage son, was an “operator” under
the language of the exclusion provision since at the time of the
accident, he was outside of the insured vehicle. In Rockford, the
named insureds’ son was excluded, and the issue was whether that
named driver exclusion violated public policy to the extent it voided
uninsured-motorist coverage. In Smith, once again, the named
insureds’ son was excluded, and the issue was whether this exclusion
violated public policy. Lastly, in Arive, the issue was whether the fact
that the excluded driver was not listed on the insurance card rendered
the named driver exclusion unenforceable. Again, none of these cases
addressed the question of whether the sole named insured can be
excluded and none of these cases held that a named driver exclusion
can override the plain language of section 7-317(b)(2).
¶ 16 American Access further argues that Reyes may be excluded from
coverage under section 7-602 of the Code. Section 7-602 requires
every operator to carry within his or her vehicle evidence of
insurance, which may include an insurance card provided by the
insurer. 625 ILCS 5/7-602(a) (West 2010). The section provides in
pertinent part:
“If the insurance policy represented by the insurance card
does not cover any driver operating the motor vehicle with the
owner’s permission, or the owner when operating a motor
vehicle other than the vehicle for which the policy is issued,
the insurance card shall contain a warning of such limitations
in the coverage provided by the policy.” 625 ILCS 5/7-602
(West 2010).
American Access argues that section 7-602 allows exclusion of “any”
driver. We again disagree.
¶ 17 American Access ignores the full language of section 7-602. With
respect to “any driver,” the full clause is “does not cover any driver
operating the motor vehicle with the owner’s permission.” (Emphasis
added.) The legislature was referring to permissive drivers in the first
clause given the “with the owner’s permission” language and the fact
that certain permissive drivers may be excluded from coverage.
Section 7-602 then provides, “does not cover *** the owner when
operating a motor vehicle other than the vehicle for which the policy
is issued.” (Emphasis added.) This last clause indicates the legislature
was referring to the policy holder or insured given the “for which the
policy is issued” language. This clause allows exclusion of an owner
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or policy holder or insured for other vehicles, not the vehicle that is
insured. This clause does not authorize a named driver exclusion for
the sole insured and owner of the vehicle. Thus, American Access’
argument that any driver may be excluded is without merit.
¶ 18 We further reject American Access’ claim that, because named
driver exclusions were a policy defense at common law, they are
available under section 7-601(a). Section 7-601(a) provides: “Nothing
herein shall deprive an insurer of any policy defense available at
common law.” 625 ILCS 5/7-601(a) (West 2010). In Smith, State
Farm made a similar argument in connection with the automobile
business exclusion. We disagreed. Assuming, arguendo, that section
7-601(a) applied to that case at all, we interpreted the sentence
“[n]othing herein shall deprive an insurer of any policy defense
available at common law” to mean that nothing in the Code prohibits
an insurance company from asserting traditional common law
defenses. Smith, 197 Ill. 2d at 377. We construed the phrase “policy
defense available at common law” to refer to customary common law
contract defenses, such as fraud or misrepresentation, illegality or
justiciability. We reasoned that exclusions written into a liability
policy by an insurance company are not “policy defenses available at
common law” because they are contractual provisions. Accordingly,
we held that such exclusions do not fall within the meaning of section
7-601(a). Id. at 377-78. We see no reason to depart from that holding.
¶ 19 Lastly, American Access asserts a public policy argument,
maintaining that the type of exclusions at issue here makes it possible
for individuals with high risk factors to be covered by insurance at a
reasonable rate, rather than operate a vehicle with no insurance at all.
We reject this argument. Public policy is expressed in the plain
language of section 7-317(b)(2), which we must follow. Further, it is
apparent why the legislature has deemed that the named insured must
be covered under an automobile liability policy. As one court has
stated:
“Our interest in protecting the driving public far
outweighs an insured’s desire to exclude himself from
coverage in order to avail himself of a lower premium. To
allow an insured to exclude himself from coverage and drive
as an uninsured motorist, runs afoul of the overall purpose
and intent of Louisiana’s compulsory insurance law. In the
instant case, [the named insured] purchased liability insurance
coverage, purported to exclude himself as a driver of his own
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vehicle, and then caused an accident resulting in injury. This
court will not uphold such actions at the expense of the
injured person whom our statutory insurance law is designed
to protect. Clearly, the legislature did not intend that citizens
such as these plaintiffs would suffer injury, and a tortfeasor
would escape liability because he waived the mandatory
liability coverage which is required by statute.” Williams v.
US Agencies Casualty Insurance Co., 779 So. 2d 729, 732
(La. 2001) (superseded by statute).
Although Williams is a Louisiana case, we find its reasoning equally
applicable here.
¶ 20 For the foregoing reasons, we hold that an automobile liability
insurance policy cannot exclude the sole named insured since such an
exclusion conflicts with the plain language of section 7-317(b)(2)
and, therefore, violates public policy. Accordingly, we affirm the
judgment of the appellate court, which reversed the judgment of the
circuit court and remanded the cause to the circuit court for further
proceedings.
¶ 21 Affirmed.
¶ 22 JUSTICE KILBRIDE, dissenting:
¶ 23 I respectfully dissent from the majority opinion because I believe
that permitting a sole named insured to be listed as an excluded driver
in motor vehicle liability policies is consistent with both the
legislative intent expressed in article III of the Illinois Safety and
Family Financial Responsibility Law and our case law. This court is,
and properly should be, reluctant to invalidate a contractual provision
because it is contrary to public policy. We may only take that step
when the provision is “clearly contrary to” established public policy
or “manifestly injurious” to the welfare of the public. Supra ¶ 9. Here,
the policy provision does not rise to that level.
¶ 24 To construe the legislature’s intent, we must look to the plain
language of the statute whenever possible. Palm v. 2800 Lake Shore
Drive Condominium Ass’n, 2013 IL 110505, ¶ 48. In addition, we
may consider the reason and necessity for the law, the evils sought to
be remedied, and the statute’s underlying purpose. Carter v. SSC
Odin Operating Co., 2012 IL 113204, ¶ 37. This court’s task is to
effectuate the legislative intent expressed in plain and unambiguous
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language adopted, without adding to or subtracting from those terms.
Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18.
¶ 25 Here, one of the key provisions is section 7-317. It states:
“(a) Certification.—A ‘motor vehicle liability policy’, ***,
means an ‘owner’s policy’ or an ‘operator’s policy’ of
liability insurance, certified *** as proof of financial
responsibility for the future, and issued, ***, to or for the
benefit of the person named therein as insured.
(b) Owner’s Policy.—Such owner’s policy of liability
insurance:
***
2. Shall insure the person named therein and any other
person using or responsible for the use of such motor vehicle
or vehicles with the express or implied permission of the
insured;
3. Shall insure every named insured and any other person
using or responsible for the use of any motor vehicle owned
by the named insured and used by such other person with the
express or implied permission of the named insured on
account of the maintenance, use or operation of any motor
vehicle owned by the named insured, *** against loss from
liability imposed by law arising from such maintenance, use
or operation ***.” (Emphases added.) 625 ILCS 5/7-317(a),
(b) (West 2010).
While I agree with the majority that subsection (b) requires the
liability policy to provide coverage for “the person named” and
“every named insured” (supra ¶¶ 11-13), we part company there
because I conclude that the liability policy at issue here satisfies
section 7-317 when carefully read as a whole.
¶ 26 Subsection (b) also mandates coverage for all permissive users of
the vehicle. 625 ILCS 5/7-317(b)(2), (3) (West 2010). A closer look
at the specific qualifying language used in subsection (b)(3) reveals
that coverage must extend to “every named insured and any other
person using or responsible for the use of any motor vehicle owned
by the named insured and used by such other person with the express
or implied permission of the named insured.” (Emphasis added.) 625
ILCS 5/7-317(b)(3) (West 2010). The person who would most likely
be “responsible for the use of” the named insured’s car when it is
“used by such other person with the express or implied permission of
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the named insured” would logically be the named insured. Therefore,
the plain statutory language compels coverage for the named insured
against any liability arising from her decision to allow another driver
to use the vehicle. 625 ILCS 5/7-317(b)(3) (West 2010). That
coverage, in turn, satisfies subsection (b)(2) as well because it does
not specify the type of coverage mandated for “the person named
therein.” The named insured’s status as an excluded driver under the
policy does not alter either of those statutory requirements. In other
words, to comply with the critical portions of subsection (b), the
policy may simply provide coverage for the named insured against
any liability incurred by permitting another driver to use her vehicle
regardless of whether or not the named insured is also listed as an
excluded driver.
¶ 27 Similarly, to comply with section 7-317(a), the policy must be
issued “to or for the benefit of the person named therein as insured.”
625 ILCS 5/7-317(a) (West 2010). By a policy “issued to” the named
insured that provides “the benefit of” coverage for any liability
resulting from her decision to allow another driver to use her vehicle,
subsection (a) is also satisfied. Accordingly, a sole named insured
who is also an excluded driver is not completely bereft of coverage,
and the liability policy is fully compliant with section 7-317.
¶ 28 As additional support for this conclusion, nothing in section 5-317
requires the liability policy to include multiple named insureds or to
preclude a sole named insured from being an excluded driver. Thus,
a plain language analysis fails to support the contrary conclusion that
the legislature intended to bar sole named insureds from being
excluded when personally operating insured vehicles.
¶ 29 My construction of the statute is confirmed when viewed in the
light of the strict limitations placed on this court’s ability to invalidate
contractual provisions as against public policy. As the majority
correctly notes, this power must be used “sparingly,” requiring that
the insurance policy provision be “clearly contrary to what the
constitution, the statutes, or the decisions of the courts have declared
to be the public policy or unless it is manifestly injurious to the public
welfare.” Supra ¶ 9. I dissent because I do not believe that high
standard has been met in this case. I would hold that the named driver
exclusion is enforceable and not contrary to public policy.
¶ 30 As further support for this conclusion, the majority has
acknowledged that our case law has never required more than one
named insured to render an excluded driver provision enforceable.
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Supra ¶ 14. Moreover, statutory analysis of other, related, provisions
in article III supports this conclusion as well.
¶ 31 Article III addresses proof of future financial responsibility, with
section 7-301 defining its scope:
“The provisions of this Article requiring the deposit of proof
of financial responsibility for the future, ***, shall apply with
respect to persons whose driver’s license or driving privileges
have been revoked ***, or who have failed to pay judgments
amounting to $500 or more ***.” 625 ILCS 5/7-301 (West
2010).
Next, section 7-304 explains the potential consequences of a license
revocation:
“[u]pon the revocation of a driver’s license ***, the Secretary
of State shall suspend any and all of the registration
certificates, license plates and registration stickers issued for
any motor vehicle registered in the name of such person as
owner except that the Secretary shall not suspend such
evidences of registration in the event such owner has
previously given or shall immediately give *** and thereafter
maintain ***, proof of financial responsibility in the manner
hereinafter specified in this Article with respect to each and
every motor vehicle owned and registered by such person.”
(Emphases added.) 625 ILCS 5/7-304 (West 2010).
Section 7-305 then continues:
“The suspension of such certificates of registration, license
plates and registration stickers of such person as provided for
in Section 7-304 shall remain in effect *** until permitted
under this Article and not then unless and until said person
gives proof of his financial responsibility in the future, as
defined in this Code ***.” (Emphases added.) 625 ILCS 5/7-
305 (West 2010).
¶ 32 To establish proof of financial responsibility, the Code permits
“[a] certificate of insurance as provided in Section 7-315 or Section
7-316” to be filed with the Secretary of State. 625 ILCS 5/7-314(1)
(West 2010). Although section 7-316 is inapplicable here because it
addresses a nonresident’s proof of insurance, section 7-315 is highly
relevant. It states:
“(a) Proof of financial responsibility may be made by
filing *** the written or electronic certificate of any insurance
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carrier duly ***, certifying that it has issued to or for the
benefit of the person furnishing such proof and named as the
insured in a motor vehicle liability policy, a motor vehicle
liability policy or policies *** and that said policy or policies
are then in full force and effect. ***
***
(c) The Secretary of State shall not accept any certificate
*** unless the same shall cover all motor vehicles then
registered in this State in the name of the person furnishing
such proof as owner ***.” (Emphases added.) 625 ILCS 5/7-
315(a), (c) (West 2010).
¶ 33 To summarize, when a driver’s license is revoked, the registration
certificates, license plates, and registration stickers for all vehicles
owned by the revoked driver are suspended until proof of financial
responsibility is filed. That proof may consist of a certificate of motor
vehicle liability insurance covering all affected vehicles that is
“issued to or for the benefit of the person furnishing such proof and
named as the insured.” 625 ILCS 5/7-315(a) (West 2010).
¶ 34 Consistent with the requirement that all motor vehicles driven on
the state’s public highways be covered by a liability policy (625 ILCS
5/7-601(a) (West 2010)), the legislature created this procedure to
encourage revoked drivers to register and license their vehicles even
though they may not legally get behind the wheel. The insurance
requirement would also protect the interests of the public. Supra ¶ 8.
¶ 35 Because the same provisions apply in the instant appeal and the
revoked driver context, the majority’s holding would also apply
equally. Common sense and practical experience dictate that liability
coverage for the operation of a vehicle by someone without a valid
driver’s license would be extremely expensive. Nonetheless, under
the majority’s view, revoked drivers would be required to obtain
coverage on themselves as unlicensed operators or be unable to
register and license their vehicles. I reject that result because the
legislature created the financial responsibility laws, at least in part, to
provide a way for revoked drivers to comply with the registration and
licensure requirements. I do not believe the legislature would create
a statutory scheme that implicitly condones the use of uninsured,
unlicensed, and unregistered vehicles by establishing a procedure that
effectively ensures liability coverage on only those vehicles owned by
revoked drivers who could afford exorbitant premiums to cover
themselves if they are illegally behind the wheel.
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¶ 36 If, hypothetically, that were the intent of the legislature, however,
it would create at least two highly undesirable consequences: (1)
many revoked drivers would forgo mandatory coverage, choosing
instead not to register and license their vehicles; and (2) their decision
not to insure would leave injured members of the general public
without any financial recourse from insurance, even if a validly
licensed driver were at the wheel of the insured’s car. Those results
would be antithetical to the principal purpose of our mandatory
liability insurance requirement, namely, “to protect the public by
securing payment of their damages” (supra ¶ 8).
¶ 37 To remain consistent with the underlying legislative purpose
determined by this court, the legislature must have intended revoked
drivers, including those who are sole named insureds, to be able to
exclude themselves as vehicle operators. That would rationally tie
their ability to register and license their vehicles to a realistic
opportunity to obtain affordable liability coverage. The legislature
would then be encouraging, not discouraging, owners’ voluntary
compliance with the financial responsibility laws and their retention
of liability policies, thus providing maximum protection to the
general public. For this reason as well, I cannot concur in the
majority’s holding that sole named insureds may not be listed as
excluded drivers.
¶ 38 Finally, American Access points out an even more disturbing
consequence of the majority’s construction, affecting elderly drivers
and those suffering from disabilities that are inconsistent with safe
driving, such as blindness. While those individuals may wisely
choose to surrender, or never even obtain, driver’s licenses and rely
solely on family members, neighbors, or other caregivers for
transportation, they may still own a car for a variety of reasons, both
personal and practical. Under the majority’s view, those well
intentioned vehicle owners would likewise be trapped in the Catch-22
created by the majority’s holding.
¶ 39 To comply with the requirement that all motor vehicles used on
public highways be covered by liability insurance (625 ILCS 5/7-
601(a) (West 2010)), the elderly or disabled owner would be
mandated to acquire liability coverage. That coverage could be either
an owner’s policy or an operator’s policy (625 ILCS 5/7-317(a) (West
2010)). Here, it was an owner’s policy. Not only is an owner’s policy
by far the most well known and common option, but the alternative
of an operator’s policy presents its own problems, as discussed later.
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¶ 40 Under the majority’s view, the disabled or elderly vehicle owner
who happens to be a sole named insured would have to be covered as
a potential driver of the vehicle in an owner’s policy, despite
admittedly possessing neither the ability nor the intent to drive.
Practically speaking, the premium due for an elderly, blind “driver”
would be prohibitively high for many, if not virtually all, those
individuals. Moreover, the greatest burden would fall on those people
living on a low fixed income. Consequently, the elderly and disabled
would be presented with a strong incentive to forgo any liability
insurance, creating a serious risk that injured members of the public
would be unable to secure compensation. Once again, the majority’s
construction would create a result that is in direct conflict with the
express statutory purpose of protecting the injured public by
providing a reliable source of compensation.
¶ 41 The availability of operator’s policies does not offer the disabled
or elderly vehicle owner a more realistic alternative. If, as experience
dictates is often the case, the owner relies on several drivers, each one
would be required to carry a separate operator’s insurance policy,
again greatly multiplying the overall cost and inconvenience. In
addition, the public would still be less likely to receive full protection
because not every driver would be aware of the need for, be able to
afford, and go to the trouble to obtain the additional coverage.
¶ 42 The problem becomes even more compelling if the insured’s
vehicle must be specially equipped to accommodate a wheelchair or
other vital equipment, making it highly unlikely that a family member
or other caretaker could easily provide alternative transportation in
another car. It is difficult, at best, to envision that the legislature
intended to give disabled and elderly vehicle owners a strong
incentive not to insure their vehicles, particularly in the absence of
any statutory language limiting the use of excluded driver provisions
to vehicles with multiple named insureds.
¶ 43 For these reasons, I do not believe the majority’s construction of
the statutory provisions at issue comports with the intent of the
legislature. Furthermore, the facts and circumstances do not establish
that the excluded driver provision in the parties’ insurance contract
is “clearly contrary to what the constitution, the statutes, or the
decisions of the court have declared to be the public policy or *** is
manifestly injurious to the public welfare.” Supra ¶ 9. Indeed, I
believe the opposite conclusion is apparent. Because the majority
reaches the opposite conclusion, however, I urge the legislature to
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examine the statute in light of the plight of many elderly and disabled
vehicle owners and provide them with some much needed statutory
relief.
¶ 44 In my view, the far more reasonable and practical construction of
the current statutory scheme would permit sole named insureds to
exclude themselves from liability coverage as drivers, while enabling
them to obtain coverage on their permissive drivers. The named
insureds would also have coverage for themselves to the extent to
cover any liability they may face for allowing other drivers access to
their vehicles. This would allow virtually all car owners to register
and license their vehicles by complying with the mandatory insurance
provisions, while also protecting the interests of the general public.
Accordingly, I must respectfully dissent from the majority opinion.
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