dissenting, as modified on denial of rehearing:
I would hold that the family car exclusion in the nonaccident vehicle’s underinsured-motorist coverage is inapplicable under the express terms of section 143.01(b) of the Illinois Insurance Code (215 ILCS 5/143.01(b) (West 1996)). Even if the statute did not resolve this case, however, and resort to public policy considerations were necessary, I still could not join in my colleagues’ opinion.
Contrary to what the majority believes, its holding is not supported by our recent decision in Luechtefeld v. Allstate Insurance Co., 167 Ill. 2d 148 (1995). Although the exclusion at issue in Luechtefeld was determined to be valid, this court stressed that its holding was narrow and distinguished the type of exclusion present in the case at bar. As the majority points out, the Buick policy in question in this case excluded from underinsuredmotorist coverage any vehicle “furnished for the regular use of you, your spouse or any relative.” The Mustang was a vehicle furnished for the regular use of Jennifer and her parents and fell under this exclusion. Therefore, under this exclusion, had the Mustang been uninsured or underinsured, Jennifer could not have recovered anything under the Buick policy.
In contrast, the exclusion at issue in Luechtefeld stated that uninsured-motorist coverage did not apply to: “ ‘Any person while in, on, getting into or out of a vehicle you own which is insured for this coverage under another policy.’ ” Luechtefeld, 167 Ill. 2d at 151. The purpose behind both the uninsured- and underinsuredmotorist statutes is to place the insured in substantially the same position he would occupy if the uninsured driver had carried adequate insurance. Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992). This exclusionary clause in Luechtefeld did not conflict with the purpose behind uninsured- and underinsuredmotorist coverage because by its terms the clause only takes effect if the policyholder already has uninsured motorist coverage under another insurance policy. Luechtefeld, 167 Ill. 2d at 152-53. Therefore, a vehicle involved in an accident would still be assured some form of coverage. Unlike the exclusion in Luechtefeld, the exclusion in the Buick policy here would operate regardless of whether or not there was uninsured- or underinsured-motorist coverage available under the Mustang policy. The reasoning from Luechtefeld does not support the enforcement of an exclusionary clause which may leave an insured without any coverage against an uninsured or underinsured motorist, as the clause in the case at bar.
The majority neglects to point out that we criticized such an exclusion in Luechtefeld. The exclusionary clause at issue in Squire v. Economy Fire & Casualty Co., 69 Ill. 2d 167 (1977), was distinguished at great length by this court in Luechtefeld. In Squire, the insurance policy contained an exclusion which barred uninsured-motorist coverage for injuries incurred in an automobile that the insured owned but did not list in that insurance policy. Luechtefeld, 167 Ill. 2d at 154. We reasoned that enforcement of the exclusion in Squire could have left the insured without any protection against injuries caused by uninsured motor vehicles in some circumstances. Luechtefeld, 167 Ill. 2d at 154-55. Specifically, when an insured is injured in a vehicle not listed in the policy and there is no separate uninsured-motorist coverage on that second vehicle, under the exclusion contained in the Squire policy, such an insured would have no uninsured-motorist protection. In Luechtefeld, we concluded that “[b]y depriving the insured of uninsured-motorist coverage in some circumstances, the exclusion in Squire violated the statutory requirement in section 143(a) of the Illinois Insurance Code (215 ILCS 57143(a) (West 1992)) that every automobile liability insurance policy provide uninsured-motorist coverage in the minimal amounts required under the Illinois Vehicle Code.” Luechtefeld, 167 Ill. 2d at 155.
The exclusionary clause at issue in the present case is similar to the one in Squire because it prevents recovery regardless of whether there is uninsured- or underinsured-motorist coverage available on the second vehicle, the Mustang in the present case. As with the clause at issue in Squire, an insured would be deprived of underinsured-motorist coverage in some circumstances. Specifically, if there were no separate uninsured- and underinsured-motorist coverage on the Mustang there would be no protection. A clause that could operate in this manner violates the purpose behind the uninsured- and underinsured-motorist statutes of placing the insured in the same position he would have occupied if the tortfeasor carried adequate insurance. Under this court’s reasoning in Luechtefeld, such an exclusion is invalid on public policy grounds.
The majority argues that the Buick exclusion must be enforced, otherwise we would be encouraging consumers to purchase adequate uninsured- and underinsuredmotorist protection for one automobile and minimal or no protection for all other automobiles. This situation can be avoided through the use of a more reasonable exclusionary provision such as the one we enforced in Luechtefeld. The exclusion in Luechtefeld was limited to those situations in which underinsurance coverage is available under another applicable policy. We should not enforce an unreasonable clause which violates public policy by operating in certain circumstances to leave the insured without any protection against an uninsured or underinsured motorist.
For the foregoing reasons, I would hold that the exclusion in the Buick policy is in violation of the public policy behind the uninsured- and underinsured-motorist provisions. The judgment of the appellate court should be affirmed.
Accordingly, I respectfully dissent.
JUSTICE NICKELS joins in this dissent.