Appellate Court of
Illinois,

First District,

First Division.

STONEGATE INSURANCE
COMPANY, Plaintiff-Appellant,

v.

WILLIAM SIMON, DAN McGINNIS, and STATE FARM MUTUAL AUTO INSURANCE
COMPANY, Defendants-Appellees.

No. 1-17-0392

December 26, 2017

Appeal from the Circuit
Court of Cook County,

No. 15 CH 15162

Honorable Rodolfo
Garcia, Judge Presiding.

ORDER

JUSTICE MIKVA delivered the judgment of the
court.

*1 ¶ 1 Held: The circuit court’s
grant of summary judgment in favor of the insured on the issue of coverage is
affirmed where the facts of the accident at issue bring it within the insurance
policy’s uninsured motorist coverage.

¶ 2 Plaintiff Stonegate
Insurance Company sought a declaration in the circuit court that it had no
coverage obligation to its insured, William Simon, as a result of an incident
in which a golf cart Mr. Simon was riding in, owned and driven by Dan McGinnis,
flipped over, causing bodily injury to Mr. Simon. Mr. Simon submitted a claim
to Stonegate pursuant to the uninsured motorist coverage provision of his
personal auto policy with Stonegate. Stonegate denied coverage on the basis
that, under the policy, the golf cart did not qualify as an uninsured motor
vehicle. On appeal, Stonegate challenges the circuit court’s grant of summary
judgment in favor of the defendants, Mr. Simon, Mr. McGinnis, and Mr.
McGinnis’s home insurer, State Farm Mutual Auto Insurance Company. For the
following reasons, we affirm the judgment of the circuit court.

¶ 3 I.
BACKGROUND

¶ 4 A. The Incident

¶ 5 On August 28, 2012,
Mr. McGinnis was driving an E-Z Go Club Car golf cart on M-152—a two-lane
roadway in Benton Harbor, Michigan. Mr. Simon was in the front passenger seat
while his wife, Cynthia Simon, and Mrs. Simon’s friend, Patti Franklin, were
seated in the back seat of the golf cart.

¶ 6 In an affidavit
submitted in support of summary judgment, Mr. McGinnis described M-152 as a
two-lane road with “fog lines and paved shoulders.” Mr. McGinnis was driving
the golf cart east on M-152, on the paved shoulder that bordered the road’s
eastbound lane, and stated that he kept the “left wheels of the golf cart ***
along the fog line (sometimes just left of it, on it, or just to the right of
it).” Mr. McGinnis drove the golf cart past an elementary school that had two
driveway entrances. As the golf cart was approaching the second driveway
entrance, Mr. McGinnis steered the golf cart slightly to the right, so the
“right wheels of the golf cart were on the dirt or grassy area abutting the
paved shoulder.”

¶ 7 In his deposition,
Mr. McGinnis explained that he was on “the blacktop part” of the road when the
accident occurred and to the right side of the white line, with the main part
of the road to his left and the shoulder to his right. Mr. Simon also attached photographs
that showed the fog line separating the main part of M-152 from the shoulder.
It is clear in these photographs that the shoulder is paved. According to Mr.
McGinnis’s affidavit:

“The crash occurred when the right front wheel
hit the perpendicular edge of the driveway entrance to the school. It was a
large enough change in elevation between the dirt/grass and the paved driveway
entrance to cause the golf cart to flip. The golf cart flipped over onto its
right side, causing the right side of [Mr. Simon’s] body to hit the ground.”

¶ 8 Mr. Simon’s
testimony at his deposition was that “we were just driving down the road and I
noticed that [Mr. McGinnis] was starting to edge over a bit.” He also testified
that when the golf cart flipped, Mr. McGinnis and the roof of the golf cart
landed on top of him, and he was pinned beneath the golf cart. Mr. Simon broke
his shoulder in five or six places and broke his arm as a result of the
accident. Mr. McGinnis filed a claim with State Farm under his home insurance
policy, but was denied coverage.

¶ 9 B. The Policy

*2 ¶ 10 Mr. Simon’s personal auto policy with
Stonegate at the time of the golf cart accident covered four specific vehicles
owned or operated by Mr. Simon and members of his family. The policy also provided
for uninsured motorist coverage under certain specific circumstances:

“PART C – UNINSURED MOTORISTS COVERAGE INSURING
AGREEMENT

A. We will pay compensatory damages which an
‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured
motor vehicle’ because of ‘bodily injury’:

1. Sustained by an ‘insured’; and

2. Caused by an accident.

The owner’s or operator’s liability for these
damages must arise out of the ownership, maintenance or use of the ‘uninsured
motor vehicle.’

B. ‘Insured’ as used in this Part means:

1. You or any ‘family member.’

2. Any other person ‘occupying’ ‘your covered
auto.’

3. Any person for damages that person is
entitled to recover because of ‘bodily injury’ to which this coverage applies
sustained by a person described in 1. or 2. above.

C. ‘Uninsured motor vehicle’ means a land or
motor vehicle or trailer of any type:

1. To which no bodily injury liability bond or
policy applies at the time of the accident.

* * *

However, ‘uninsured motor vehicle’ does not
include any vehicle or equipment:

* * *

5. Designed mainly for use off public roads
while not on public roads.”

¶ 11 An endorsement to
the policy amended Part C “as follows”:

“A. Section 2. Of the definition of ‘insured’ is
replaced by the following:

‘insured’ as used in this Part means:

2. Any other person ‘occupying’:

a. ‘Your covered auto’; except where that
vehicle is taken unauthoritatively then no coverage shall attach to operator or
passengers occupying said vehicle.

b. Any other auto operated by you.

B. Section 3. Of the definition of ‘uninsured
motor Vehicle’ [is] replaced by the following:

‘Uninsured motor vehicle’ means a land motor
vehicle or trailer of any type:

3. Which is a hit-and-run vehicle whose operator
or owner cannot be identified and which, through physical contact, hits or
causes an object to hit:

a. You or any ‘family member’ resulting in
‘bodily injury’;

b. A vehicle which you or any ‘family member’
are ‘occupying’; or

c. “Your covered auto.”

¶ 12 C. Procedural
Background

¶ 13 Because Mr.
McGinnis did not have insurance coverage for the golf cart, Mr. Simon filed a
lawsuit against Mr. McGinnis in Michigan and an uninsured motorist claim with
Stonegate. In response, Stonegate filed this declaratory action against Mr.
Simon, Mr. McGinnis, and State Farm. Stonegate sought declarations that Mr.
Simon’s policy did not provide coverage in this instance, that Stonegate had no
duty to defend or indemnify Mr. Simon, and that Stonegate was “not obligated by
its policy of insurance to pay out any sums to defendants or for the use of
defendants.”

¶ 14 The parties filed
cross-motions for summary judgment. In its motion, Stonegate argued that the
golf cart was not an uninsured motor vehicle under the policy and that Mr.
Simon was not an insured under the policy “since he neither owned nor operated
the golf cart.” Mr. Simon argued that he was covered by the uninsured motorist
coverage provision of the policy.

¶ 15 On January
31, 2017, the circuit court denied
Stonegate’s motion for summary judgment and granted summary judgment in favor
of defendants, declaring that Stonegate owed Mr. Simon coverage under the
uninsured motorist coverage provision because Mr. Simon was an insured and the
golf cart was an uninsured motor vehicle under the policy.

¶ 16
II. JURISDICTION

*3 ¶ 17 Stonegate timely filed its notice of
appeal on February 14, 2017. This
court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and
303, governing appeals from final judgments entered by the circuit court in
civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. Jan. 1,
2015).

¶ 18
III. ANALYSIS

¶ 19 On appeal,
Stonegate makes three arguments in support of its contention that defendants
were not entitled to summary judgment or coverage for the golf cart accident
pursuant to Mr. Simon’s personal auto policy: (1) that Mr. Simon was not an
“insured” under the policy when he was a passenger in Mr. McGinnis’s golf cart;
(2) that the golf cart was not an “uninsured motor vehicle” under the policy;
and (3) that this accident comes within an exclusion in the policy’s definition
of an uninsured motor vehicle for any vehicle “designed mainly for use off
public roads while not on public roads.” Stonegate also makes an argument that
we should read this coverage narrowly because Illinois law does not require
insurance coverage for golf carts. We find that summary judgment in favor of
defendants was proper.

¶ 20 “Summary judgment
is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Virginia Surety Co.
v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556 (2007). Where,
as here, the parties have filed cross-motions for summary judgment, “they agree
that only a question of law is involved and invite the court to decide the
issues based on the record.” Pielet v. Pielet, 2012 IL 112064, ¶
28. “A circuit court’s ruling on a motion for summary judgment is
reviewed de novo.” Pekin Insurance Co. v. Centex Homes, 2017 IL App (1st) 153601, ¶ 18 (citing A.B.A.T.E.
of Illinois, Inc. v. Quinn, 2011 IL 110611, ¶ 22).

¶ 21 The construction of
an insurance policy is also subject to de novo review. Travelers
Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292-93 (2001).
The primary objective is “to ascertain and give effect to the intentions of the
parties as expressed in their agreement.” (Internal quotation marks
omitted.) Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455
(2010). And if unambiguous, the terms of the policy must be given their “plain
and ordinary meaning.” Id. “An insurance policy will be
liberally construed in favor of the insured.” Addison Insurance Co. v.
Fay, 232 Ill. 2d 446, 455 (2009).

¶ 22 Part C of Mr.
Simon’s personal auto policy with Stonegate provides that Stonegate will “pay
compensatory damages which an ‘insured’ is legally entitled to recover from the
owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily injury’
*** [s]ustained by an ‘insured’ ” and “[c]aused by an accident.” As Mr. Simon
points out in his response brief, “Stonegate does not challenge that [Mr.]
Simon sustained bodily injuries, that his injuries were caused by the accident,
or that he was legally entitled to recover from [Mr.] McGinnis as the
owner/operator of the golf cart.” The questions before us are only whether Mr.
Simon qualifies as an “insured” and whether the golf cart qualifies as an
“uninsured motor vehicle.”

¶ 23 A. Mr. Simon is an
“Insured” Under the Policy

¶ 24 Part C, section B,
of the policy defines an “insured” for purposes of uninsured motor vehicle
coverage. Section 1 of section B defines an “insured” as “[y]ou or any ‘family
member.’ ” The general “Definitions” section of the policy further states that
“[t]hroughout this policy, ‘you’ and ‘your’ refer to *** [t]he ‘named insured’
shown in the Declarations.” Mr. Simon is listed as a named insured in the
policy’s “Declarations.” Because the policy’s named insureds qualify as an
“insured” for the purposes of part C, Mr. Simon qualifies as an insured under
part C by the plain language of the policy.

*4 ¶ 25 Stonegate, however, argues that the
entire definition of an “insured” under part C was replaced by an endorsement
modifying part C, which provides as follows:

“A. Section 2. Of the
definition of ‘insured’ is replaced by the following:

‘insured’ as used in this Part means:

2. Any other person ‘occupying’:

a. ‘Your covered auto’; except where that
vehicle is taken unauthoritatively then no coverage shall attach to operator or
passengers occupying said vehicle.

b. Any other auto operated by you.”

According to Stonegate,
Mr. Simon would only be covered under the uninsured motorist coverage portion
of the policy if he was injured in an accident in which one of his four covered
vehicles was involved or while he was driving.

¶ 26 But the plain
language of the endorsement makes clear that it modifies only the second
section of the definition of insured, rather than replacing the definition in
its entirety. The endorsement states that it replaces “Section 2. Of the
definition of ‘insured.’ ” If the endorsement replaced the entire definition of
an “insured” for part C of the policy, then part C of would exclude coverage
for the named insured, since section 2 only covers any “other” person. While
Stonegate is correct that there is an unusually placed period and capital “O”
in the phrase “Section 2. Of the definition” in the endorsement, it is clear to
us that the only part of the definition of insured that is being altered is
section 2. So the endorsement leaves section 1 of the definition of an insured
untouched. Section 1 of the definition includes “you,” meaning Mr. Simon and
his family members. As a named insured on the policy, Mr. Simon qualifies as an
insured under section 1, regardless of what motor vehicle was involved, and the
amendment in the endorsement to section 2 is simply irrelevant.

¶ 27 B. The Golf Cart is
an “Uninsured Motor Vehicle” Under the Policy

¶ 28 Stonegate argues
that the golf cart at issue in this case is not an “uninsured motor vehicle”
under the policy, both because it does not fall within the plain meaning of the
term “land motor vehicle,” and because it falls within an exclusion under the
definition of “uninsured motor vehicle” for a vehicle that is not “on public
roads” at the time of the accident. We reject both arguments.

¶ 29 1. The Golf Cart is
an Uninsured “Land Motor Vehicle”

¶ 30 Part C, section C,
section 1, of the policy defines an “uninsured motor vehicle” as “a land motor
vehicle or trailer of any type” “[t]o which no bodily injury liability bond or
policy applies at the time of the accident.” Because the policy does not define
“land motor vehicle,” we look to its plain, ordinary meaning. Wilson,
237 Ill. 2d at 455

. A “motor vehicle” is
defined as “an automotive vehicle not operated on rails” (Merriam-Webster
Dictionary, http://www.merriam-webster.com/dictionary/motorv̈ehicle (last
visited November 21, 2017)) and
“automotive” is defined as “self-propelled” (Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/automotive (last visited November
21, 2017)). See also 625 ILCS
5/1-146 (West 2016) (Illinois Vehicle Code section defining a “motor vehicle”
as “[e]very vehicle which is self-propelled *** but not operated upon rails,
except for vehicles moved solely by human power, motorized wheelchairs,
low-speed electric bicycles, and low-speed gas bicycles”).

*5 ¶ 31 The golf cart at issue here falls
within the plain meaning of the term “land motor vehicle.” It was operated on
land, was self-propelled, and was not operated on rails. In addition, it is
undisputed that the golf cart was not insured at the time of the accident.
Thus, Mr. McGinnis’s golf cart falls squarely within the definition of an
uninsured motor vehicle under part C, section C, section 1.

¶ 32 Stonegate again
argues that a policy endorsement replaces the relevant definition in this case,
causing the golf cart to fall outside the definition of an “uninsured motor
vehicle.” The endorsement in question indicates again how part C, regarding
uninsured motorist coverage, is amended:

“B. Section 3. Of the definition of ‘uninsured
motor Vehicle’ I [sic] replaced by the following:

‘Uninsured motor vehicle’ means a land motor
vehicle or trailer or any type:

3. Which is a hit-and-run vehicle whose operator
or owner cannot be identified and which, through physical contact, hits or
causes an object to hit:

a. You or any ‘family member’ resulting in
‘bodily injury’;

b. A vehicle which you are any ‘family member’
are ‘occupying’; or

c. ‘Your covered auto.’ ”

¶ 33 Again Stonegate reads
the endorsement to supersede the entire definition—meaning that Mr. Simon would
only be covered by the uninsured motorist provision of his policy if an
unidentified driver committed a hit-and-run. We must again reject this
argument, despite the period and capital letter appearing in what otherwise
reads as a single sentence. The endorsement provides that it replaces only the
third part—“Section 3”—of the definition of an “uninsured motor Vehicle.” As a
land motor vehicle to which no policy applied at the time of the accident, the
golf cart qualifies as an uninsured motor vehicle under the first part
of that definition.

¶ 34 2. The Exclusion
for Vehicles “Not On Public Roads” Does Not Apply

¶ 35 Stonegate also
argues that Mr. Simon is not entitled to coverage based on the policy’s
exclusion—from the definition of an “uninsured motor vehicle”—of “any vehicle”
that is “[d]esigned mainly for use off public roads while not on public roads.”
The parties do not dispute that the golf cart was a vehicle designed mainly for
use off public roads. But to fall within the exclusion, the motor vehicle must
also be “not on public roads” at the time of the accident.

¶ 36 Stonegate argues
that there is a factual issue as to whether Mr. McGinnis was driving the golf
cart on “public roads” at the time of the accident. Stonegate claims that, at
the time of the accident, Mr. McGinnis was driving the golf cart “on the grassy
‘culvert’ off the road” and that the “grassy ditch at the side of the road is
where the golf cart was, and where the incident occurred,” is not a public
road. However, the evidence is undisputed that the golf cart was at least
partially on either the main part of the roadway or on the shoulder at the time
of the accident.

¶ 37 Mr. McGinnis
testified that he was traveling on the paved portion of M-152 and on the
“blacktop part” of the road when the accident occurred. In his affidavit, Mr.
McGinnis attested that he drove the golf cart east along the paved shoulder of
M-152 with the left wheels of the golf cart along the road’s fog line. Although
Mr. McGinnis moved the golf cart slightly to the right just before the
accident, he stated that he was “still largely on the paved shoulder,” with
just the right wheels of the cart on the “grassy area abutting the paved shoulder.”
Mr. McGinnis stated in his deposition that the accident occurred when the golf
cart’s tires “caught” the “culvert.” Mr. Simon’s testimony was only that they
were driving down the road when Mr. McGinnis started to edge over a bit.

*6 ¶ 38 Stonegate does not suggest that any
contradictory evidence exists that could be presented at trial. Instead, it
argues—based on the fact that the golf cart was partially on the grassy culvert
and that the other part of the golf cart may have been on the shoulder rather
than the main part of M-152—that there is an issue of fact as to whether the
golf cart was “on public roads.” But even if some part of the golf cart was on
the grassy culvert, this does not mean that the golf cart was not “on public
roads.” The exclusion in the policy does not exclude any vehicle that is not
operating 100% “on public roads.” If, as Stonegate concedes, at most two of the
four wheels of the golf cart were on the grassy culvert, then the golf cart was
“on public roads” if the shoulder is part of the public road.

¶ 39 The issue then is
whether the phrase “on public roads” in this policy includes being on the
shoulder of public roads. In support of its argument that the paved shoulder is
not part of a public road Stonegate cites Boub v. Township of Wayne,
183 Ill. 2d 520 (1998). In Boub, our supreme court noted that the
Illinois Vehicle Code defined “highway” as “[t]he entire width between the
boundary lines of every way publicly maintained when any part thereof is open
to the use of the public for purposes of vehicular travel,” and “roadway” as
“[t]hat portion of a highway improved, designed or ordinarily used for
vehicular travel, exclusive of the berm or shoulder.” (Internal quotation marks
omitted.) Boub, 183 Ill. 2d at 530 (quoting 625 ILCS 5/1126, 1-179
(West 1996)). Mr. Simon relies on Baumgartner v. Ziessow, 169 Ill.
App. 3d 647, 654 (1988), where this court stated that “the [gravel] shoulder of
the road [in that case] was as much a part of the public road as the paved
portion of the road on which vehicles normally travel.” Neither case is
particularly instructive.

¶ 40 In Boub,
the issue was whether, for purposes of tort immunity, a bicyclist was an
intended user of the defendant municipality’s roads. Boub, 183 Ill.
2d at 529. Although the court in that case considered statutory provisions
relied on by both parties, it made clear that it was the intent of the
municipality that controlled, and “the intent of another public body, whether
it [wa]s the state, a county, or other local entity, should be
irrelevant.” Id. And in Baumgartner, a minor
involved in a collision argued that he should be held to a lower standard of
care because he was operating his minibike on the shoulder of the road. Baumgartner,
169 Ill. App. 3d at 653. The court concluded that, “[f]or purposes of
determining the proper standard of care,” it did not matter whether the
plaintiff drove the minibike on the shoulder or on the main part of the road.

¶ 41 As the vehicle code
cited in Boub makes clear, a “highway” is different than a
“roadway.” Boub, 183 Ill. 2d at 530. A “public road” may mean
something else entirely, as the dictionary definition of “road” is far broader
than either of these definitions. See Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/motorv̈ehicle (last visited December 14, 2017) (defining “road” broadly as “an open way for vehicles,
persons, and animals”).

¶ 42 Here, the term “on
public roads” is not defined in the insurance policy and there is no other
authoritative or even persuasive definition that assists us in determining
whether a shoulder is or is not part of a public road. If a term in an
insurance policy is ambiguous, that term is “construed strictly against the
drafter of the policy and in favor of coverage.” Outboard Marine,
154 Ill. 2d at 119. This means that when a term used in a coverage exclusion is
susceptible of more than one definition we must favor the definition that
narrows the exclusion in favor of coverage. Here, we therefore construe the
term “on public roads” to include being on the shoulder of public roads, and
find that the exclusion does not preclude coverage in this case.

*7 ¶ 43 As a final matter, Stonegate points
out both that Illinois does not require liability insurance coverage for golf
carts, and that the purpose of uninsured motorist coverage is to put the
insured in “approximately the same position he would have been in” had the
driver of an uninsured motor vehicle carried such insurance. It is true that
Illinois does not require liability insurance for golf carts. See 625 ILCS
5/7-601(a) (West 2012) (requiring it only for any “motor vehicle designed to be
used on a public highway”). But statutory requirements do not dictate what
parties may agree to in an insurance contract. Parties are free to contract for
coverage in excess of the minimum amount contemplated by the legislature when
it mandated that drivers of “motor vehicle[s] designed for use on public
highways and required to be registered” carry coverage protecting them in the
event they are injured or damaged by the drivers of uninsured motor vehicles.
See 215 ILCS 5/143a (West 2012). Here, Mr. Simon’s insurance policy affords him
coverage for his injuries resulting from the golf cart accident. Because Mr.
Simon meets the requirements of the uninsured motorist provision of his policy,
he is entitled to coverage from Stonegate and the circuit court did not err in
granting summary judgment in favor of Mr. Simon.

¶ 44
IV. CONCLUSION

¶ 45 For the foregoing
reasons, we affirm the judgment of the circuit court.

¶ 46 Affirmed.

Presiding Justice Pierce
and Justice Simon concurred in the judgment.