dissenting:
I respectfully dissent, although I agree that the policy limits are only $20,000 / $40,000.
In Madison Mutual, the court relied on the language of the policy to decide the question we consider. The garage liability policy there, like ours, defined an insured to be "any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.” If a person is "required by law” to be an insured, it does not make any difference, for purposes of the definition, whether that requirement is satisfied by Universal’s garage liability policy or by some preexisting coverage. (Madison Mutual, 251 Ill. App. 3d at 16, 621 N.E.2d at 272-73.) I agree with Madison Mutual that someone in the position of Massey is required by law to be insured and accordingly is an insured under the garage liability policy.
Madison Mutual indicated it was not clear, under the Illinois mandatory insurance law, whether it is the operator or the owner that must provide the mandatory insurance. (Madison Mutual, 251 Ill. App. 3d at 16, 621 N.E.2d at 272.) It is clear to me, however, that under the mandatory insurance law the owner of a vehicle must provide insurance coverage. The statute provides that no person shall register or maintain registration of a motor vehicle "unless the motor vehicle is covered by a liability insurance policy.” (625 ILCS 5/7 — 601(a) (West 1992).) The statuté does not indicate that a policy covering the driver is sufficient, it states that the motor vehicle must be covered by a policy. There is a difference between a policy which insures certain vehicles and those who operate them, and a policy which insures certain drivers and the vehicles they operate. The uninsured owner of a vehicle cannot protect himself from liability under the mandatory insurance law by allowing the vehicle to be operated only by drivers who have their own insurance. The mere registration of an uninsured vehicle, even one which is never used, violates the law. The Secretary of State may enforce the mandatory insurance law by random registration checks and by requests that owners furnish proof of insurance. (625 ILCS 5/7 — 601(a) (West 1992).) Insurance cards must be issued by the insurer for each motor vehicle insured, and if the policy does not cover any driver operating the vehicle with the owner’s permission, the insurance card shall contain a warning. (625 ILCS 5/7 — 602 (West 1992).) Probably an insured driver operating an otherwise uninsured vehicle is not subject to penalty under section 3 — 707 of the Code (625 ILCS 5/3 — 707 (West 1992)), but the owner is in violation and his registration could be suspended under section 7 — 606 (625 ILCS 5/7 — 606 (West 1992)). See Meacham & Andersen, Illinois’ Mandatory Insurance Law, 78 Ill. B.J. 298, 301 (1990).
The requirement that an owner maintain insurance covering the vehicle is consistent with the policy behind the mandatory insurance law. The law did not intend a situation where sometimes there might not be coverage. An owner can be certain of his own coverage and that his vehicle is specifically listed on his policy. It should not be a defense for an uninsured owner that the driver had his own insurance, a fact over which the owner has little direct control. Insurance on the vehicle is superior to insurance on the driver, because insurance on the vehicle will generally cover other drivers using the vehicle with the permission of the owner. (See 625 ILCS 5/7 — 317(b)(2) (West 1992).) Because Honda was required to have insurance under the mandatory insurance law, and because Honda was prohibited from permitting Massey to use its vehicle unless the vehicle was covered by a liability insurance policy, I would hold that Massey was "required by law to be an INSURED,” despite the fact that other coverage was available to Massey.
The majority opinion holds the Universal garage liability policy to be excess over the State Farm policy. I do not understand how we can say that without considering the language of the State Farm policy. The State Farm policy contains language that it is only excess: "If *** a non-owned car *** has other vehicle liability coverage on it, then this coverage is excess.” The parties do not discuss the issue in their briefs, but I would expect the garage liability policy to be primary. The trial court so held in Madison Mutual, and that seems to be the general rule. (Automobile Underwriters, Inc. v. Hardware Mutual Casualty Co. (1971), 49 Ill. 2d 108, 112, 273 N.E.2d 360, 362-63; International Insurance Co. v. Sentry Insurance (1977), 45 Ill. App. 3d 634, 359 N.E.2d 1219.) Garage liability insurers seem to be continually changing their policies to avoid that result, but the supreme court has not been sympathetic to those efforts. Automobile Underwriters, 49 Ill. 2d at 112, 273 N.E.2d at 362-63 (mere inclusion of phrase "either primary or excess” in the "escape” clause insufficient).
If the garage liability policy is primary, then that policy must pay its full limits before the excess policy is involved. The garage liability policy accordingly cannot benefit from payments which will be made under the excess policy. However, I agree with the dissenting opinion in International Insurance that the policy language ("THE MOST WE SHALL PAY”) "discloses a scheme of coverage” that the garage liability insurer shall pay no more than the amounts required by the mandatory insurance law, $20,000/$40,000. International Insurance, 45 Ill. App. 3d at 638, 359 N.E.2d at 1222 (Trapp, J., dissenting); see also Guaranty National Insurance Co. v. Koch (1993), 242 Ill. App. 3d 692, 611 N.E.2d 91; Springfield Fire & Casualty Co. v. Garner (1993), 255 Ill. App. 3d 685, 627 N.E.2d 1147.
Accordingly, I would affirm that portion of the trial court’s decision which found that Massey was covered by Universal’s garage liability policy, but would remand with instructions to find that the limits of the policy are $20,000/$40,000.