American Access Casualty Company v. Reyes

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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