dissenting:
I respectfully dissent. The majority correctly recognizes that statutory language must be given its plain, ordinary, and popularly understood meaning. The majority also correctly sets forth the statutory provisions governing bonds and insurance policies for rental-car companies. However, none of these provisions limits a rental-car company’s Lability to the minimum amounts of mandatory insurance. These statutes only set forth the minimum insurance that must be available ($50,000 to $100,000) and the minimum bond required ($600,000). No language in the statutes limits the rental-car owner’s liability to those mínimums but rather it requires the rental-car company to pay “any judgment within 30 days after it becomes final.” 625 ILCS 5/9 — 103 (West 2002). In fact, failure to timely pay the judgment shall result in cancellation of the certificate of self-insurance.
The majority relies upon its own “common sense” to limit the self-insurer’s liability to the statutory minimum of $50,000. This is incorrect, as noted in Hertz Corp. v. Garrott, 238 Ill. App. 3d 231, 239, 606 N.E.2d 219, 224 (1992):
“In addition, we find no merit to Hertz’s contention that upon a finding that the exculpatory clause is void, its obligation to indemnify third parties is limited to the amounts required by statute for the agency to demonstrate its financial responsibility. Chapter 9 of the Vehicle Code provides that owners of for-rent vehicles, in order to operate their business in the State of Illinois, must demonstrate financial responsibility by (1) posting bond, (2) obtaining insurance, or (3) obtaining a certificate of self insurance. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 9 — 101 et seq.) At the time of the accident, if a bond was posted, the amount of the required bond was $50,000, if a policy of insurance was obtained, the amount of liability[-]insurance coverage necessary was $50,000. Nevertheless, we find that the statute merely prescribes the minimum amounts needed by a rental agency to conduct business in the State.” (Emphasis added.)
This court should not rewrite statutes with its own “common sense.” Neither public policy nor statutory language supports the treatment of self-insureds in the same manner as those who pay hefty premiums to assure available insurance to those injured by the rental car. The legislature correctly has recognized a preference for insured vehicles.
Admittedly the Hertz court does go on to recognize the rental-car company’s contractual right to limit the scope of the obligation to the mandatory minimum liability limits, just as the trial court did here. However, the Hertz court also found an exculpatory clause excluding liability for drunken driving invalid as violative of public policy. Similarly here, permitting Enterprise to contractually limit its liability in the face of statutes requiring payment of “any judgment” would violate those statutes and public policy
New Jersey recognizes the unlimited nature of liability of the self-insured rental-car companies as set forth in New Jersey’s self-insured statutes, which parallel Illinois’s statutory provisions:
“We are aware that the nature of self-insurance, and the advantage for which it is sought, is that it allows a company to carry its own risk of loss and avoid payment of premiums for insurance coverage through a private company. [Citations.]
Unlike a liability policy, however, which is purchased in amounts equal to or greater than the mandatory minimum required by law, N.J.SA. 39:6B — 1, a self-insurer does not carry that risk of loss to a specified dollar amount. Rather, there is no explicit limitation on a self-insurer’s liability.” Ryder/P.I.E. Nationwide, Inc. v. Harbor Bay Corp., 119 N.J. 402, 412, 575 A.2d 416, 421-22 (1990).
The majority references my use of this language out of context. The New Jersey court statement merely reflects on its latter statement, “Moreover, with respect to the scope of coverage obligations, it is the well-settled policy of this state to consider a self-insurance certificate as the equivalent of a policy of insurance” (Ryder, 119 N.J. at 413, 575 A.2d at 422), and goes on to add a self-insured’s liability is not limited to bond or compulsory insurance amounts, “[a] self-insurer’s liability for an additional insured during a ‘loading or unloading’ accident is not limited by its indemnity bond nor by the minimum amounts of compulsory insurance mandated by N.J.S.A. 39:6B — 1” (Ryder, 119 N.J. at 414, 575 A.2d at 422). The Ryder court further stated:
“With that advantage, however, as N.J.S.A. 39:6 — 52 makes clear, comes the burden of carrying the risk of loss to the extent that a self-insurer’s assets are at risk to satisfy any judgments rendered against it.” Ryder, 119 N.J. at 413, 575 A.2d at 422.
The majority relies upon “common sense” and upon a series of distinguishable cases from other jurisdictions for guidance. Illinois courts have not addressed the extent of liability of a self-insured rental-car company; therefore, I looked to the other jurisdictions cited by the majority and found the referenced cases distinguishable from the case before us. See Boatright, 214 Wis. 2d at 519, 570 N.W.2d at 902, quoting Wis. Stat. § 344.30(4) (1993) (self-insurance statute specifically provided self-insurer will pay “ ‘the same amounts that an insurer would have been obligated to pay under a motor vehicle liability policy if it had issued such a policy to such self-insurer’ ”); Southern Home Insurance Co., 268 S.C. at 478, 234 S.E.2d at 872 (self-insurer and liability policy both provide coverage for person using the vehicle with consent); Kiernan, 940 F.2d at 920 (Virginia statute states self-insured car-rental company could limit in its rental agreement its uninsured motorist liability to statutory minimum required by state statutes); McSorley, 885 E2d at 1350 (self-insured car-rental company is not required to offer uninsured motorist coverage to a renter, and uninsured coverage not mandated by operation of law); ELRAC, 96 N.Y.2d 58, 748 N.E.2d 1, 724 N.Y.S.2d 692 (car-rental company may not seek indemnification from driver for amounts up to statutory minimum liability amounts); Li, 120 E3d at 33 (issue and decision comparable to that of ELRAC); Millers National Insurance Co., 184 Wis. 2d at 166, 516 N.W.2d at 379 (the city, as self-insurer, was responsible because of statutes stating that it would be liable for uninsured motorists up to $25,000; however, Illinois statute contains no such dollar amount); American Nurses, 192 N.J. Super, at 491, 471 A.2d at 69 (considering whether self-insurance constitutes “other insurance” within meaning of standard other-insurance clause).
For these reasons, I would reverse the trial court’s $50,000 award.