Appellate Court of Illinois,

First District,

FIRST DIVISION.

FOUNDERS INSURANCE COMPANY,
Plaintiff-Appellee,

v.

Maqbool SHEIKH, Individually and as father and
next friend of Sanan M. Sheikh, and Jasmin Kopic, Defendants,

(Jasmin
Kopic, Defendant-Appellant.)

No. 1-17-0176

September 25, 2017

OPINION

JUSTICE HARRIS delivered the judgment of the court, with opinion.

*1 ¶ 1 Defendant, Jasmin Kopic, appeals the order of the circuit court
granting summary judgment in favor of plaintiff, Founders Insurance Company, on
plaintiff’s complaint for declaratory judgment. On appeal, Kopic contends that
the court erred in granting summary judgment because a question of fact exists
as to whether the driver of the car, Sanan M. Sheikh, had a reasonable belief
that he was entitled to use the car at the time of the accident. For the
following reasons, we reverse and remand for further proceedings.

¶ 2 JURISDICTION

¶ 3 The trial court entered its order granting summary judgment on
October 5, 2016. Kopic filed a motion to reconsider which the trial court
denied on December 19, 2016. Kopic filed a notice of appeal on January 18,
2017. Accordingly, this court has jurisdiction pursuant to Illinois Supreme
Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. May 30, 2008), governing
appeals from final judgments entered below.

¶ 4 BACKGROUND

¶ 5 The underlying claim arose from an accident involving Sanan in which
Kopic alleged he suffered injuries. On May 16, 2013, Sanan was 15 years old and
possessed a valid Illinois driver’s permit. That morning, Sanan’s father,
Maqbool Sheikh, asked Sanan to move the family’s 1999 Toyota Sienna van to
another parking space on the street. In his deposition, Sanan stated that his
father wanted to observe Sanan parallel parking the van. While Sanan was
parking the van, his father observed from across the street. After Sanan parked
the van, Maqbool was going to take Sanan and his brother to religious school.
As Sanan maneuvered the van between parked cars, he accidentally pushed on the
gas pedal instead of the brake and hit the car in front of him. Kopic, who was
standing in front of the car Sanan hit, stated that the impact caused the car
to move forward pinning Kopic between cars.

¶ 6 Sanan stated that he had practiced parallel parking “a few times”
before with his driving instructor and “would park on a regular basis every
time [he] went out driving with [his] mom or [his] dad.” Sanan believed he
could park the van with his permit as long as his father was supervising. Sanan
eventually obtained his license when he turned 16 years old.

¶ 7 In his deposition, Maqbool stated that on the morning of May 16,
2013, he was going to take Sanan and his brother to religious school. Before
taking them to school, Maqbool asked Sanan to move the van to a parking spot on
the street so he could observe his ability to park. Maqbool was across the
street as he observed Sanan parking the van. He did not see Sanan doing
anything incorrectly, but if he did, Maqbool was within hearing distance and
could give Sanan verbal directions. Maqbool stated that he realized Sanan had
“touched” the car in front, and he heard Kopic “yelling” and lying on the grass
next to the sidewalk. Maqbool did not understand why Kopic was yelling because
he was observing at the time and he did not see damage to his car or to the car
that Sanan hit. Maqbool believed that Sanan could park the van with a permit as
long as he was observing and supervising Sanan.

*2 ¶ 8 Kopic filed a claim for personal injuries against Maqbool and
Sanan. The van was insured under a policy issued by Founders. Founders filed a
complaint for declaratory judgment, arguing it had no duty to defend or
indemnify the Sheikhs because its policy excludes coverage for “bodily injury
or property damage arising out of the use by a person of a vehicle without a
reasonable belief that the person is entitled to do so.” Under the Illinois
Driver Licensing Law (Licensing Law) (625 ILCS 5/6-107.1(a)(1) (West 2016)), a
driver’s permit:

“shall be restricted *** to the operation of a motor vehicle by the minor
only when under direct supervision of the adult instructor of a driver
education program during enrollment in the program or when practicing under
direct supervision of a parent *** or a person in loco parentis who is 21 years
of age or more, has a license classification to operate such vehicle and at
least one year of driving experience, and who is occupying a seat beside the
driver.”

Founders argued that at the time of the accident, Sanan was driving
without a licensed adult in the seat next to him contrary to Illinois law.
Therefore, “Sanan lacked the requisite ‘reasonable belief’ that he was entitled
to drive or operate the Sheikh vehicle on May 16, 2013.”

¶ 9 Founders filed a motion for summary judgment, and the trial court
granted the motion. Relying on the supreme court case of Founders Insurance Co.
v. Munoz, 237 Ill. 2d 424, 341 Ill.Dec. 485, 930 N.E.2d 999 (2010), the court
found that, as a matter of law, Sanan could not have a reasonable belief that
he was entitled to operate the van because Maqbool was not seated next to him
as required by statute. As a result, Founders had no duty to defend or
indemnify the Sheikhs in Kopic’s underlying suit. Kopic filed a motion to
reconsider, which the trial court denied. This appeal follows.

¶ 10 ANALYSIS

¶ 11 Summary judgment is proper where the pleadings, depositions,
affidavits, and admissions on file, viewed in the light most favorable to the
nonmoving party, show that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. American Economy
Insurance Co. v. DePaul University, 383 Ill. App. 3d 172, 177, 321 Ill.Dec.
860, 890 N.E.2d 582 (2008). We review the trial court’s grant of summary
judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154
Ill. 2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992).

1234¶ 12 An insurer’s duty to defend is broader than its duty to
indemnify. International Minerals & Chemical Corp. v. Liberty Mutual
Insurance Co., 168 Ill. App. 3d 361, 366, 119 Ill.Dec. 96, 522 N.E.2d 758
(1988). “An insurer may not justifiably refuse to defend an action against its
insured unless it is clear from the face of the underlying complaints that the
allegations fail to state facts which bring the case within, or potentially
within, the policy’s coverage.” Northbrook Property & Casualty Co. v.
Transportation Joint Agreement, 194 Ill. 2d 96, 98, 251 Ill.Dec. 659, 741
N.E.2d 253 (2000). An exclusions clause denying coverage will be applied only
if its applicability is clear and free from doubt. International Minerals, 168
Ill. App. 3d at 367, 119 Ill.Dec. 96, 522 N.E.2d 758. Courts construe insurance
policies liberally in favor of coverage, and if an ambiguity exists, “it will
be resolved in favor of the insured and against the insurer.” United Services
Automobile Ass’n v. Dare, 357 Ill. App. 3d 955, 963, 294 Ill.Dec. 258, 830
N.E.2d 670 (2005).

5¶ 13 Founders argued, and the trial court agreed, that as a matter of
law Founders had no duty to defend or indemnify the Sheikhs because Sanan could
not have reasonably believed he was entitled to use the van. Founders cited
Munoz as support. In Munoz, our supreme court considered the consolidated
appeals of six cases where, in each of the underlying cases, the driver did not
have a valid license. Munoz, 237 Ill. 2d at 427, 341 Ill.Dec. 485, 930 N.E.2d
999. Five of the cases involved a Founders insurance policy containing the same
exclusionary provision at issue here. The question before the court was
“whether the coverage exclusion unambiguously applies to drivers without a
valid license.” Id. at 432, 341 Ill.Dec. 485, 930 N.E.2d 999.

*3 ¶ 14 In making its determination, the court used the standard of what
the “ average, ordinary, normal, reasonable person for whom these policies were
written” would believe. (Internal quotation marks omitted.) Id. at 437, 341
Ill.Dec. 485, 930 N.E.2d 999. It found that under Illinois law “[w]ith limited
exceptions not relevant here, no person shall drive a motor vehicle in this
state unless such person has a ‘valid license.’ ” Id. It concluded that
“without a valid license, a person cannot have a reasonable belief that he or
she is entitled to drive in this state. Without a valid license, a person has
not been given the ‘right to drive; has not been ‘qualified’ to drive; has not
been ‘furnished with proper grounds’ for doing so.” Id. at 438, 341 Ill.Dec.
485, 930 N.E.2d 999. Therefore, “each of the six drivers at issue here, who
either never obtained a license or whose license was suspended, could not, as a
matter of law, have a reasonable belief that he was entitled to drive simply
because he owned the car or was given the keys.” Id.

¶ 15 Like the drivers in Munoz, Sanan, did not have a valid license on
May 16, 2013, when he attempted to park the van. However, this case differs
from Munoz in that Sanan did have a valid permit to drive and no one disputes
this fact. This permit provided Sanan with “proper grounds” for operating a
motor vehicle in Illinois. See 625 ILCS 5/6-107.1(a)(1) (West 2016). Founders
points out, however, that section 6-107.1 of the Licensing Law allows permit
holders to drive only with certain restrictions, including that a licensed
adult, 21 years of age or older, “occup[y] a seat beside the driver.” Id. Since
no one was seated next to Sanan while he was parking the van, Sanan operated
the vehicle in violation of the statute. Therefore, Founders argues, Sanan was
in the same position as the drivers in Munoz, and this court should find as a
matter of law that Sanan could not have had a reasonable belief he was entitled
to drive the van.

¶ 16 We disagree with Founders’ broad interpretation of Munoz. Our supreme
court explicitly stated that the issue before it was narrow and preferred not
to “speculate as to the myriad of other factual scenarios to which the
exclusion might apply.” Munoz, 237 Ill. 2d at 440, 341 Ill.Dec. 485, 930 N.E.2d
999. Furthermore, the court recognized that “limited exceptions” exist where a
person may drive in Illinois without a valid license, but those exceptions were
“not relevant” in Munoz. Id. at 437, 341 Ill.Dec. 485, 930 N.E.2d 999. The
court found only that, as a matter of law, a person without a valid driver’s
license could not have a reasonable belief he or she is entitled to drive
because there was no “proper grounds” or “right” to drive granted by the State
of Illinois. Id. at 438, 341 Ill.Dec. 485, 930 N.E.2d 999. We find that the
narrow holding in Munoz does not apply here, where Sanan had a valid permit to
drive.

6789¶ 17 The question remains whether Sanan had a reasonable belief he
was entitled to drive the van, and whether summary judgment was proper. The
interpretation of an insurance policy is governed by the same rules applicable
to contract interpretation. Nicor, Inc. v. Associated Electric & Gas
Insurance Services Ltd., 223 Ill. 2d 407, 416, 307 Ill.Dec. 626, 860 N.E.2d 280
(2006). A court’s primary function is to ascertain and give effect to the
parties’ intent as expressed by the language of the policy. Hobbs v. Hartford
Insurance Co. of the Midwest, 214 Ill. 2d 11, 17, 291 Ill.Dec. 269, 823 N.E.2d
561 (2005). An unambiguous provision will be applied as written, unless it
violates public policy. Id. A provision is ambiguous, however, if it is
susceptible to more than one reasonable interpretation. Id.

¶ 18 Founders’ policy excludes coverage for “bodily injury or property
damage arising out of the use by a person of a vehicle without a reasonable
belief that the person is entitled to do so.” Founders contends that Sanan
could not have had a reasonable belief because he was driving the van without a
licensed adult seated next to him. Founders’ policy, however, does not define
“reasonable belief,” and Founders has not cited cases finding that the mere
fact Sanan was parking the van in violation of the Licensing Law makes this
exclusionary clause applicable to him. Although a factfinder may determine that
Sanan did not have a reasonable belief as required by the policy, this
conclusion is not clear or free from doubt.

*4 ¶ 19 The purpose of a permit is to allow a qualified person to
practice driving “under direct supervision of a parent” or other adult prior to
obtaining a license. 625 ILCS 5/6-107.1(a)(1) (West 2016). Both Sanan and his
father, Maqbool, stated in their depositions that Sanan parked the van so
Maqbool could observe his ability to parallel park. Maqbool provided direct
supervision at all times. Although he was not in the car with Sanan, Maqbool
watched him as he parked and could give verbal direction to Sanan if necessary.
Both Sanan and Maqbool believed Sanan was properly using his permit to practice
parallel parking because Maqbool was directly supervising him. The standard, as
articulated by our supreme court in Munoz, is what the “average, ordinary,
normal, reasonable person for whom these policies were written” would believe.
(Internal quotation marks omitted.) Munoz, 237 Ill. 2d at 437, 341 Ill.Dec.
485, 930 N.E.2d 999. A factfinder could determine that Sanan, a valid
permit-holder, reasonably believed he was allowed to practice parallel parking
while his father supervised him from outside the vehicle.

¶ 20 We find that under the facts of this case, viewed in the light most
favorable to the nonmoving party, the term “reasonable belief” is ambiguous.
Therefore, the construction of that term in the policy is a question of fact.
Dash Messenger Service, Inc. v. Hartford Insurance Co. of Illinois, 221 Ill.
App. 3d 1007, 1010, 164 Ill.Dec. 313, 582 N.E.2d 1257 (1991) (when a policy is
ambiguous, the interpretation of its terms becomes a question of fact). Since a
genuine issue of material fact exists, summary judgment is not appropriate
here. Therefore, we reverse the trial court’s judgment and remand for further
proceedings.

¶ 21 Reversed and remanded for further proceedings.

Justices Simon and Mikva concurred in the judgment and opinion.