*1 HARRINGTON, FAMILY Plaintiff-Appellee, v. AMERICAN MICHAEL al., Defendants-Appellants. MUTUAL INSURANCE COMPANYet (5th Division) First District No. 1—01—2810 Opinion filed 2002. June *2 (Thomas Norton, Mancini, DeAno, Argentati, J. Weiler & of Wheaton counsel), Long, appellant Family Company. of for American Mutual Insurance (Scott Blumenshine, Chicago Meyer Offices of & of A. Blumenshine Law Friedman, counsel), appellee. B. of for and Mitchell opinion JUSTICE GREIMAN delivered the of the court: Plaintiff, Landscaping, purchased Acres doing business Green Family Company policy an insurance from American Mutual Insurance (American) coverage that of and consisted commercial coverage commercial inland marine in the amount of million. $1 general that liability policy commercial included an endorsement liability. In provided coverage hired auto nonowned addi- for and auto purchased a general liability policy, plaintiff to the commercial tion coverage in group liability policy order to separate automobile in Pursu- being operated vehicles connection with his business. for the limited in the policy,bodily injury liability the terms was ant to of occurrence; $100,000 $300,000 per accord- person per amount of and coverage in the plaintiff for uninsured motorist ingly, contracted $100,000 $300,000 per person occurrence. per amounts and he was struck an alleges Plaintiff that June with the bicycle. Ultimately, plaintiff a settled riding automobile while insurer, full Company, for the available driver’s Farmer’s Insurance a claim American $100,000. limits of Plaintiff then submitted damages his on a belief that for uninsured motorist based $100,000. on the basis that plaintiffs denied claim exceeded American Company equaled the paid Farmer’s Insurance the amount separate plaintiff uninsured under motorist available liability policy. group automobile declaratory for plaintiff complaint filed a September
On alleged American he that the wherein judgment against of the Illinois subject 143a—2 liability was to section general law, he was entitled that, by operation Insurance Code 215 ILCS that coverage in the amount motorist (West 1992). requested plaintiff allegation, that Based on 5/143a—2 as if uninsured the matter to arbitrate be ordered that defendant in the included million was coverage in the amount $1 motorist find that the court and that liability policy general practices. improper claims engaged defendant had all of complaint plaintiffs answer to American filed an thereafter, Shortly plaintiff allegations were denied. relevant plaintiffs that American asserting pleadings on the judgment for filed a motion cover- motorist offer him uninsured 143a—2 to required by section general the commercial purchase his age in connection with hired auto and included an endorsement policy because plead- judgment liability. Plaintiffs motion nonowned auto with defendant’s complied had not plaintiff because ings was stricken discovery requests. outstanding complaint filed first amended plaintiff June
On re- pleading, I and II of that declaratory judgment. counts complaint original contained alleged the same relevant facts li- reform the commercial that the trial court requested coverage in the it included uninsured ability policy so that the matter. American to arbitrate of million and order amount $1 American, through III, Furthermore, asserted count *3 it owed to him of care agent Anthony Stajszczak, its breached by needs and respect him to his insurance by negligently advising with plaintiff In count adequate insurance. failing him with IV of the com- to the sale respect defendant’s conduct with argued that Fraud in violation of the Consumer general liability policy mercial was (West (815 seq. et Practices Act ILCS Deceptive and Business 505/1 1992)). complaint II of the first amended
American counts I and answered counts III and to dismiss and filed a motion declaratory judgment for count but to dismiss as to granted court the motion IV The trial IV count III. denied the motion as to complaint amended 27, 1999, plaintiff filed a second September
On count IV Ad- amended which included an declaratory judgment for Anthony joined complaint, plaintiff ditionally, in the second amended III and Defendants to counts IV Stajszczak respect as a defendant with counts. remaining the filed a motion to dismiss count IV and answered and, shortly count IV denied the motion to dismiss The trial court thereafter, to it. defendants filed an answer the judgment on 2000, motion for 26, plaintiff
On filed a May complaint. amended II of the second pleadings as to counts and Specifically,plaintiff argument reiterated his that the inclusion of the endorsement the policy brought the within the scope of section required 143a—2 and that an offer of be made at plaintiff purchased the time the September
On American response filed its and cross- judgment motion for pleadings as to counts I and II. American asserted that it entry was entitled to judgment in its favor on plaintiffs request to reform the policy to include uninsured motorist subject insomuch as the commercial general liability policy provided coverage only for plaintiff injuries parties sustained third in connection with his business and not for injuries by plaintiff sustained terms, himself. In simpler American argued “liability that a only” policy subject cannot be held to the requirements of section 143a—2. 12, 2000,
On October the trial court ruled that the li- commercial ability policy “liability” was a opposed to a “vehicle” and that the endorsement was also limited solely liability. Accord- ingly, the trial court granting entered an order American’s cross- motion judgment on the pleadings, denying plaintiffs motion for judgment on pleadings, and entering judgment in favor of against American and the plaintiff on counts I and II. reconsider,
Plaintiff filed a motion to granted which was by the trial court. The trial court entered an order granting plaintiffs motion reconsider, vacating order October granting judgment plaintiff in favor of on counts I II of the second amended complaint declaratory judgment.
Next, American filed a motion to reconsider the trial court’s order of March subsequently was denied the trial court. appeals American now ruling trial court’s on counts I and II of the second complaint. amended
The issue before us is whether the trial correctly court determined plaintiff issued to subject to section 143a—2 of the Illinois Insurance Code. We affirm the trial court’s decision judgment to enter in favor of plaintiff counts Land II of the complaint. second amended appeal,
On American asserts that the li ability policy issued to does not fall within the of sec ambit 2, and, therefore, tion it was never to offer *4 Plaintiff, hand, coverage. argues motorist on the other section 143a—2 mandates reformation of li general the commercial ability and, therefore, coverage, uninsured motorist the trial court’s decision should be affirmed. Since case at bar judgment stems from the trial court’s pleadings, the standard
389 of is review de novo. Board Trustees the University Illinois v. (2000). City Chicago, App. 569, 317 Ill. 3d 571 First, we consider the nature of the insurance coverage purchased by plaintiff. bar, In the case at purchased a com mercial period 2, 1993, from November naming November as the insured Harrington, Michael do ing business as Green Acres Landscaping, operated as proprietor a sole ship. Attached to the is an endorsement titled “Hired Auto and Liability.” Non-Owned Auto a court interprets “When an insurance policy, only there are upon may two sources which it analysis: base its the plain language of the policy plain and the language of the Insur ance Code of 1937 as it existed at the time the policy was written.” Cincinnati Miller, Insurance Co. v. 240, (1989), 190 Ill. 3d App. citing Bailey Co., v. State Farm Fire & Casualty App. 979, 156 Ill. 3d (1987). Only where an ambiguity exists should the court look to Cincinnati, other materials. App. 244, 3d citing at Price v. State Farm Mutual Automobile Insurance Ill.
Mindful of law, the aforementioned rules of we will examine the plain language of policy, endorsement, amended with the section 143a—2 of the Insurance Code an effort to determine whether American had a duty to offer uninsured motorist plaintiff in purchase connection with his general li- ability policy. Moreover, case law tells us order to determine whether the liability policy at hand falls within the scope section we must first determine whether the benefit, direct albeit the financial benefit of the policy hand, at is received by insured, bar, by case at individual who physically injured himself. Cincinnati,
In 190 App. Ill. 3d at this court relied on insur ance classifications set forth in the Insurance Code to reach the conclu sion that “[ljiability protects the insured from financial losses for brought claims persons other legally are recover against able the insured.” Uninsured coverage, motorist on the other hand, coverage where, constitutes regardless of liability, the insured’s protected insured is from financial losses for his injury or her caused legally recoverable from person another who owns operates an uninsured or underinsured and/or motor vehicle. Cincin nati, 190 App. Ill. 3d at 245. If an insurance contains no express uninsured or underinsured coverage provision, the insured cannot recover on his liability policy.Cincinnati, own 190 App. Ill. 3d at 247. Cincinnati, 190 App. Ill. 3d at the issue was whether the insurance company had a to offer uninsured
390 in 1989 decided policy. Cincinnati was an umbrella
connection with pertinent in time, provided and, Illinois Insurance Code at that the part: “ or liability coverage on an excess providing personal ‘Insurers offer, they prohibited nor are neither to
umbrella basis are this conforming to coverages available offering making or from ” Cincinnati, at App. 190 Ill. 3d supplemental on a basis.’ Section 2(6). 1983, 73, 246, par. ch. quoting Ill. Rev. Stat. 755a — has rewritten 1989, the Insurance Code section 143a of Since been provision At the time longer provision. no includes this and that, the statu light in effect, however, the Cincinnati court held in to offer the under no company was tory language, the insurance her umbrella conjunction with plaintiff uninsured motorist sup provision citing to the aforementioned policy. addition Mutual Insur Country v. Hartbarger court cited to port, the Cincinnati (1982). Co., App. Ill. 3d 391 ance 107 this court that, Hartbarger, court noted The Cincinnati “ designed liability policy generally is umbrella ‘[a]n
stated that greater him in an amount judgment against the insured from a protect ” Cincinnati, 190 underlying policies.’ provided that than In ad App. 3d at 394. 247, 107 Ill. quoting Hartbarger, App. Ill. 3d at stated: dition, the Cincinnati court coverage is policy umbrella Hartbarger found that
“The court and policy under an automobile entirely from different this umbrella insurer intended that insured and found that both judgments in favor against excess the insured policy protect was to 247, Hartbarger, citing Cincinnati, App. Ill. 3d at 190 of others.” at 396. App. 107 Ill. 3d monetary benefit that, the ultimately, court reasoned Hartbarger individual, insured. not the injured upon falls policy
of an umbrella involved, the coverage is uninsured motorist note where We two, Thus, these the insured. ultimately upon falls monetary benefit “recipients.” different classes “protect” types policies separate to rewrite court refused observation, Hartbarger Aware of this coverage to simply expand policy of the umbrella provisions serves to benefit coverage, which include uninsured Hartbarger, citing Cincinnati, App. Ill. 3d at insured. 396. App. 3d at 2(4) requires Code the Illinois Insurance
Section 143a— motor additional insurer offer July or after 215 ILCS policy. vehicle every motor with coverage in connection ist 1992). the commercial 2(4) (West Thus, whether we must ask 5/143a— a motor at bar constitutes in the case at issue liability policy general of an umbrella to that more similar or, policy perhaps, policy vehicle unambiguous. at bar liability policy The commercial li A) with clearly provides (coverage of the Section However, at damage. bodily injury property ability coverage for “if held that court has This is an endorsement. to the tached body an endorsement meaning between there is a conflict & Insurance Manchester controls.” policy, the endorsement Ill. Insurance Underwriters Co. v. Universal Indemnity it clearly states that Moreover, the endorsement the commercial and, modifies specifically, more changes provides at issue The endorsement coverage portion. arising out damage property or liability coverage plaintiff’s *6 by plaintiff auto” use of a “hired the maintenance or Additionally, the endorsement course of business. employees in the arising out of damage bodily injury property or coverage for provides employees. We by any plaintiff’s auto” any the use of “non-owned effect, the that, the endorsement transforms find in of sec purposes for policy into a motor vehicle to Thus, pursuant hold that Insurance we tion 143a—2 of the Code. had a Anthony Stajszaczak, agent, American’s section 143a— finding of our coverage. light In uninsured motorist to offer liability forces the commercial that the endorsement at issue court’s hold that this policies, motor we policy into the realm of vehicle umbrella dealt with an since it inapplicable decision in Cincinnati holding a because cannot reach such American contends that we in section 143a— set forth language with the doing so is inconsistent 2(1) in 2(1) provides pertinent the Insurance Code. Section 143a— part: coverage. policy No insur- uninsured motor vehicle
“Additional bodily by liability imposed law resulting from ing against loss of the owner- any arising out by person suffered injury or death shall be renewed a motor vehicle ship, maintenance or use of any to respect with delivery in this State or issued for delivered to required highways designed public for use on motor vehicle coverage as motorist unless uninsured registered be State in an amount included 143a of this Code is Section specifi- unless bodily injury liability limits insured’s equal to the 1992). 2(1)(West by insured.” 215 ILCS cally rejected the 5/143a— 2(1), this of section interpretation According to American’s 143a — coverage only be offered motorist that uninsured provision requires the in- by “loss” suffered insuring against conjunction policies with sured. American provision asserts that this apply policies does not insuring against either essence, loss or liability. American is argu- ing that the uninsured motorist coverage provision only applies policies only injury where the insured potential is the insured’s injury. bar, In the case at the endorsement provides coverage bodily injury property damage plaintiff, insured, inflicted on another therefore, 2(1) party; defendant contends that section not does 143a— apply policy Furthermore, to the at bar. like an policy, umbrella bar, American asserts at interprets which it “li- ability only” policy, is aimed at protecting injured third party, Thus, rather than the insured. just as the Cincinnati court refused to require that uninsured motorist conjunction offered in be with an umbrella policy, American asks that this court find that uninsured motorist coverage need not be in conjunction offered with a policy designed protect only against insured liability to others. agree cannot We with American’s argument. begin, To this court “ has held that ‘every liability any issued for motor vehicle registered or principally garaged in Illinois must cover age or death caused an uninsured or hit-and-run ” vehicle.’ v. Co., Norris National Union Fire Insurance (2001), quoting v. Allstate Insurance Luechtefeld Ill. 2d bar, American itself states that the at including endorsement, therefore, constitutes a policy; we find why no reason holding applicable Norris is not to the case at Furthermore, bar. we note that American neither cites to Norris in its any briefs nor offers refuting case law Norris. 2(1)
Additionally, a review of section shows that the statu- tory language clearly requires that uninsured be of- fered in connection any with motor vehicle policy “insuring against *7 resulting loss from liability imposed by law for or death by any person suffered arising ownership, out of the maintenance or (West 2(1) 1992). use of á motor vehicle.” 215 key ILCS The 5/143a— provision “any words in this are person.” See also 215 ILCS 5/143a— 2(4) (West 1992). provision This does not discriminate between the 2(1) injured insured and the third party. applies any Section to policy insuring loss, against it whether be the insured’s loss or the party’s loss, third resulting liability from imposed by law. While very argument, American offers a implausible creative we find it the legislature intended option purchase that the to uninsured motor- ist coverage only apply to policies. a narrow class of motor vehicle sum, plaintiff endorsement sold to provided liability auto and, therefore, coverage, plaintiff American was to offer uninsured and underinsured motorist equal an amount to injury bodily the insured’s limits. Holland v. State Farm (1991); Automobile Insurance Mutual 2(1) (West 1992). It is undisputed 215 ILCS that American 5/143a — steps to take to offer any failed Therefore, statutory case required by require statute. law and law to at issue be reformed motorist coverage.
contain uninsured reasons, the foregoing properly For we hold that the trial court granted judgment favor I on counts and II of the complaint. Consequently, second amended we affirm the trial court’s reconsider, order of March granting plaintiff’s motion to denying the trial court’s order June American’s motion to reconsider.
Affirmed.
CAMPBELL, EJ., concurs QUINN,
JUSTICE dissenting: respectfully I agree dissent. do not that the endorsement at issue modified the liability policy such manner that section 143a—2 it requires to be reformed contain uninsured motor- coverage. ist
The endorsement is titled “HIRED AUTO AND NON-OWNED pertinent AUTO part, provides LIABILITY.” In it “HIRED AUTO LI- (Section 1) ABILITY—The provided insurance under A Coverage ap- plies ‘bodily injury’ or ‘property damage’ arising out of the by you maintenance or a ‘hired your employees use of auto’ or your course business.” AUTO LIABILITY—The provided
“NON-OWNED (Section 1) injury’ under A Coverage applies ‘bodily or ‘property damage’ or ‘property damage’ arising any out of the use of ‘non- your by any person you. owned auto’ in business other than ^^ any you lease, ‘Hired auto’ means ‘auto’ hire or borrow. ‘Non-ownedauto’ means any [*] ‘auto’ * * you do not own, lease, hire are your borrow which used in connection with business. All other terms, agreements, conditions, [**] [*] provisions remain unchanged.” provides: itself
“SECTION 1—COVERAGES
$ ^ ^ COVERAGEC. MEDICALPAYMENTS ^
2. Exclusions ‘bodilyinjury’: pay expenses not
Wewill any a. To insured.” provides that the unambiguous language of the endorsement (section 1) only bodily provided applies under A
insurance (1) leased, or use of an auto injury arising out of the maintenance course by Harrington employees hired or or his in the of borrowed (2) business; of auto” used in Harrington’s any the use “non-owned Harrington. other Harrington’s business someone than Harrington’s bodily injuries were suf- It is uncontroverted course, neither riding bicycle. bicycle Of a a fered when he was on a also uncontroverted that “hired auto” nor a “non-owned auto.” It is Harrington not used Har- being vehicle struck which the com- even if to reform rington’s Consequently, business. we were to include uninsured motorist mercial endorsement, Harrington could not specified for those autos in the recover. supreme court important
I think to note that our has it is also right of place “any 143a does not restriction stated section persons are to parties agree insurance contract to an policy.” Heritage under an automobile insurance be ‘insureds’ (1974); Phelan, followed America 59 Ill. 2d Insurance Co. v. of by Cohs v. States Insurance Western (2002). did not out by plaintiff
As the suffered arise of Har of a “non-owned auto” course use “hired auto” business, granted judgment have rington’s the trial court should II amended on counts second favor the defendant this, unnecessary it is this complaint. I believe that Because to com applies issue section 143a—2 court to decide the of whether contain policies that endorsements mercial think conditions. I coverage for autos under certain providing opinions are to be avoided. example why advisory an case is excellent Reagan, Barth v. 139 Ill. 2d See