dissenting:
I respectfully dissent. I do not agree that the endorsement at issue modified the commercial general liability policy in such a manner that section 143a — 2 requires it to be reformed to contain uninsured motorist coverage.
The endorsement is titled “HIRED AUTO AND NON-OWNED AUTO LIABILITY.” In pertinent part, it provides “HIRED AUTO LIABILITY — The insurance provided under Coverage A (Section 1) applies to ‘bodily injury’ or ‘property damage’ arising out of the maintenance or use of a ‘hired auto’ by you or your employees in the course of your business.”
“NON-OWNED AUTO LIABILITY — The insurance provided under Coverage A (Section 1) applies to ‘bodily injury’ or ‘property damage’ or ‘property damage’ arising out of the use of any ‘non-owned auto’ in your business by any person other than you.
^ ^
‘Hired auto’ means any ‘auto’ you lease, hire or borrow.
* * *
‘Non-owned auto’ means any ‘auto’ you do not own, lease, hire or borrow which are used in connection with your business.
* * *
All other terms, agreements, conditions, and provisions remain unchanged.”
The policy itself provides:
“SECTION 1 — COVERAGES
$ ^ ^
COVERAGE C. MEDICAL PAYMENTS
^
2. Exclusions
We will not pay expenses for ‘bodily injury’: a. To any insured.”
The unambiguous language of the endorsement provides that the insurance provided under coverage A (section 1) only applies to bodily injury arising out of (1) the maintenance or use of an auto leased, hired or borrowed by Harrington or his employees in the course of Harrington’s business; (2) the use of any “non-owned auto” used in Harrington’s business by someone other than Harrington.
It is uncontroverted that Harrington’s bodily injuries were suffered when he was riding on a bicycle. Of course, a bicycle is neither a “hired auto” nor a “non-owned auto.” It is also uncontroverted that the vehicle which struck Harrington was not being used in Harrington’s business. Consequently, even if we were to reform the commercial general liability policy to include uninsured motorist coverage for those autos specified in the endorsement, Harrington could not recover.
I think it is also important to note that our supreme court has stated that section 143a does not place “any restriction on the right of the parties to an insurance contract to agree on which persons are to be the ‘insureds’ under an automobile insurance policy.” Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389, 395 (1974); followed by Cohs v. Western States Insurance Co., 329 Ill. App. 3d 930, 937 (2002).
As the bodily injury suffered by plaintiff did not arise out of the use of a “hired auto” or a “non-owned auto” in the course of Harrington’s business, the trial court should have granted judgment in favor of the defendant on counts I and II of the second amended complaint. Because of this, I believe that it is unnecessary for this court to decide the issue of whether section 143a — 2 applies to commercial general liability insurance policies that contain endorsements providing coverage for autos under certain conditions. I think this case is an excellent example of why advisory opinions are to be avoided. See Barth v. Reagan, 139 Ill. 2d 399, 419 (1990).