Appellate Court
of Illinois, First District.
of Illinois, First District.
Roger KNOUSE,
Plaintiff-Appellant,
Plaintiff-Appellant,
v.
Rejat MOHAMEDNUR,
Santorini Five Cab Corp., and Globe Taxi
Association, Inc., Defendants
Santorini Five Cab Corp., and Globe Taxi
Association, Inc., Defendants
(Rejat Mohamednur, Defendant-Appellee.)
No. 1-16-1856
March 27, 2017
OPINION
JUSTICE HARRIS delivered the
judgment of the court, with opinion.
judgment of the court, with opinion.
*1 ¶ 1 Plaintiff, Roger Knouse,
appeals the circuit court’s order granting defendant Rejat Mohamednur’s motion
to have the $69,611.07 judgment against defendant declared satisfied through
prior medical payments already received by plaintiff and $100,000 in uninsured
motorist coverage recoverable by plaintiff. On appeal, plaintiff contends that
the trial court erred because, in declaring the judgment against defendant
satisfied, the court improperly determined that plaintiff had a claim under the
uninsured motorist provision of his insurance policy. For the following
reasons, we reverse and remand for further proceedings.
appeals the circuit court’s order granting defendant Rejat Mohamednur’s motion
to have the $69,611.07 judgment against defendant declared satisfied through
prior medical payments already received by plaintiff and $100,000 in uninsured
motorist coverage recoverable by plaintiff. On appeal, plaintiff contends that
the trial court erred because, in declaring the judgment against defendant
satisfied, the court improperly determined that plaintiff had a claim under the
uninsured motorist provision of his insurance policy. For the following
reasons, we reverse and remand for further proceedings.
¶ 2 JURISDICTION
¶ 3 The trial court entered its
order declaring the judgment against defendant satisfied on June 1, 2016.
Plaintiff filed a notice of appeal on June 29, 2016. Accordingly, this court
has jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1,
1994), and 303 (eff. Jan. 1, 2015), governing appeals from final judgments
entered below.
order declaring the judgment against defendant satisfied on June 1, 2016.
Plaintiff filed a notice of appeal on June 29, 2016. Accordingly, this court
has jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1,
1994), and 303 (eff. Jan. 1, 2015), governing appeals from final judgments
entered below.
¶ 4 BACKGROUND
¶ 5 The following facts are relevant
to this appeal. On December 19, 2010, plaintiff, an Indiana resident, was
injured when he attempted to enter a taxi cab on North Water Street in Chicago.
Defendant, an Illinois resident, was the driver of the taxi. Plaintiff suffered
injuries and incurred $5,111.07 in medical expenses. On November 28, 2012,
plaintiff filed a complaint against defendant, Santorini Five Cab Corp.
(Santorini), and Globe Taxi Association, Inc. (Globe Taxi). Plaintiff
voluntarily dismissed Santorini and Globe Taxi, and the cause proceeded to jury
trial against defendant.
to this appeal. On December 19, 2010, plaintiff, an Indiana resident, was
injured when he attempted to enter a taxi cab on North Water Street in Chicago.
Defendant, an Illinois resident, was the driver of the taxi. Plaintiff suffered
injuries and incurred $5,111.07 in medical expenses. On November 28, 2012,
plaintiff filed a complaint against defendant, Santorini Five Cab Corp.
(Santorini), and Globe Taxi Association, Inc. (Globe Taxi). Plaintiff
voluntarily dismissed Santorini and Globe Taxi, and the cause proceeded to jury
trial against defendant.
¶ 6 When the accident occurred in
2010, defendant was covered under a liability insurance policy issued by Ullico
Casualty Company (Ullico). Ullico became insolvent and was liquidated on May
30, 2013. Due to Ullico’s insolvency, the Illinois Insurance Guaranty Fund
(Guaranty Fund) assumed the defense of plaintiff’s complaint. On November 8,
2013, defendant filed his appearance and answer to plaintiff’s complaint. As
part of discovery, defendant served plaintiff with special interrogatories
regarding insurance coverage. In his answer, plaintiff stated that he had an
automobile insurance policy “which did not cover an accident of this nature.”
2010, defendant was covered under a liability insurance policy issued by Ullico
Casualty Company (Ullico). Ullico became insolvent and was liquidated on May
30, 2013. Due to Ullico’s insolvency, the Illinois Insurance Guaranty Fund
(Guaranty Fund) assumed the defense of plaintiff’s complaint. On November 8,
2013, defendant filed his appearance and answer to plaintiff’s complaint. As
part of discovery, defendant served plaintiff with special interrogatories
regarding insurance coverage. In his answer, plaintiff stated that he had an
automobile insurance policy “which did not cover an accident of this nature.”
¶ 7 At the time of the occurrence,
plaintiff was covered under an automobile liability policy issued by State Farm
Insurance (State Farm). The State Farm policy subsequently made $4,247.73 in
payments toward plaintiff’s claimed medical expenses. The policy also provided
uninsured motor vehicle coverage of up to $100,000 per person for each
occurrence. The policy provided that:
plaintiff was covered under an automobile liability policy issued by State Farm
Insurance (State Farm). The State Farm policy subsequently made $4,247.73 in
payments toward plaintiff’s claimed medical expenses. The policy also provided
uninsured motor vehicle coverage of up to $100,000 per person for each
occurrence. The policy provided that:
“Uninsured Motor Vehicle
means a land motor vehicle:
means a land motor vehicle:
1. the ownership, maintenance, and
use of which is:
use of which is:
a. not insured or bonded for
liability at the time of the accident; or
liability at the time of the accident; or
b. insured or bonded for liability
at the time of the accident; but
at the time of the accident; but
* * *
(2) the insuring company:
* * *
(b) is or becomes insolvent within
two years after the date of the accident * * *.”
two years after the date of the accident * * *.”
Thus, plaintiff’s State Farm policy
covered uninsured motor vehicle claims due to the insolvency of defendant’s
insurer only if the insurer became insolvent within two years of the accident.
Plaintiff’s State Farm policy also provided that “[w]ithout regard to choice of
law rules,” the law of “Indiana will control” where a conflict exists “as to
the interpretation and application of” the policy.
covered uninsured motor vehicle claims due to the insolvency of defendant’s
insurer only if the insurer became insolvent within two years of the accident.
Plaintiff’s State Farm policy also provided that “[w]ithout regard to choice of
law rules,” the law of “Indiana will control” where a conflict exists “as to
the interpretation and application of” the policy.
*2 ¶ 8 On June 2, 2014, the trial
court granted defendant leave to file his second affirmative defense to
plaintiff’s complaint. In his second affirmative defense, defendant alleged
that under Illinois law plaintiff must first exhaust all recoverable insurance
coverage prior to satisfying a claim through the Guaranty Fund. Defendant
further alleged that, as the insured of an insolvent insurer now represented by
the Guaranty Fund, his liability should be reduced by the full limit of
uninsured motor vehicle coverage recoverable under plaintiff’s State Farm
policy. Defendant filed a third amended affirmative defense to reflect the fact
that State Farm paid plaintiff’s medical bills. Although defendant requested a
determination of this issue prior to trial, the court continued the matter and
the case proceeded to trial.
court granted defendant leave to file his second affirmative defense to
plaintiff’s complaint. In his second affirmative defense, defendant alleged
that under Illinois law plaintiff must first exhaust all recoverable insurance
coverage prior to satisfying a claim through the Guaranty Fund. Defendant
further alleged that, as the insured of an insolvent insurer now represented by
the Guaranty Fund, his liability should be reduced by the full limit of
uninsured motor vehicle coverage recoverable under plaintiff’s State Farm
policy. Defendant filed a third amended affirmative defense to reflect the fact
that State Farm paid plaintiff’s medical bills. Although defendant requested a
determination of this issue prior to trial, the court continued the matter and
the case proceeded to trial.
¶ 9 On January 13, 2016, the jury
returned a verdict in favor of plaintiff in the amount of $69,611.07. Defendant
filed a motion seeking satisfaction and release of the judgment against him,
arguing that his liability should be reduced by $104,247.73, which represents
the amount of other insurance recoverable by plaintiff and payments State Farm
already made to plaintiff. In his answer, plaintiff did not challenge the
offset of payments already made to him by State Farm. He did object, however,
to reducing defendant’s liability by the $100,000 limit of uninsured motor
vehicle coverage under his State Farm policy because Indiana law, and the terms
of his policy, bar plaintiff from recovering under that provision. Plaintiff’s
State Farm policy provides uninsured motor vehicle coverage only if defendant’s
insurance company became insolvent within two years of the occurrence. In this
case, Ullico became insolvent more than 29 months after the occurrence.
returned a verdict in favor of plaintiff in the amount of $69,611.07. Defendant
filed a motion seeking satisfaction and release of the judgment against him,
arguing that his liability should be reduced by $104,247.73, which represents
the amount of other insurance recoverable by plaintiff and payments State Farm
already made to plaintiff. In his answer, plaintiff did not challenge the
offset of payments already made to him by State Farm. He did object, however,
to reducing defendant’s liability by the $100,000 limit of uninsured motor
vehicle coverage under his State Farm policy because Indiana law, and the terms
of his policy, bar plaintiff from recovering under that provision. Plaintiff’s
State Farm policy provides uninsured motor vehicle coverage only if defendant’s
insurance company became insolvent within two years of the occurrence. In this
case, Ullico became insolvent more than 29 months after the occurrence.
¶ 10 The trial court found that
under section 27-7-5-4(c) of the Indiana Code (Ind. Code § 27-7-5-4(c) (2010)),
when the insurer subsequently becomes insolvent, an insured may make a claim
under the uninsured motor vehicle provision of his policy only if the insurer
became insolvent within two years of the occurrence. However, the court found
that under Illinois law no such limitation existed, and instead such
limitations “are deemed to be contra public policy.” Finding a conflict of
laws, the trial court noted that whether Illinois or Indiana law applies
depends “upon whether the matter is procedural or substantive.” The court,
quoting State Farm Mutual Automobile Insurance Co. v. Burke, 2016 IL App
(2d) 150462, ¶ 71, 402 Ill.Dec. 330, 51 N.E.3d 1082, determined that this was a
statute of limitations issue, statutes of limitation are procedural and “
‘procedural issues are governed by the law of the forum state regardless of the
parties’ contractual choice of law provisions.’ ” Therefore, the trial court
applied Illinois law and found that plaintiff was not time-barred from filing
an uninsured motor vehicle claim under his State Farm policy.1
under section 27-7-5-4(c) of the Indiana Code (Ind. Code § 27-7-5-4(c) (2010)),
when the insurer subsequently becomes insolvent, an insured may make a claim
under the uninsured motor vehicle provision of his policy only if the insurer
became insolvent within two years of the occurrence. However, the court found
that under Illinois law no such limitation existed, and instead such
limitations “are deemed to be contra public policy.” Finding a conflict of
laws, the trial court noted that whether Illinois or Indiana law applies
depends “upon whether the matter is procedural or substantive.” The court,
quoting State Farm Mutual Automobile Insurance Co. v. Burke, 2016 IL App
(2d) 150462, ¶ 71, 402 Ill.Dec. 330, 51 N.E.3d 1082, determined that this was a
statute of limitations issue, statutes of limitation are procedural and “
‘procedural issues are governed by the law of the forum state regardless of the
parties’ contractual choice of law provisions.’ ” Therefore, the trial court
applied Illinois law and found that plaintiff was not time-barred from filing
an uninsured motor vehicle claim under his State Farm policy.1
¶ 11 The trial court then determined
whether section 546(a) of the Illinois Insurance Code (Code) (215 ILCS 5/546(a)
(West Supp. 2015)) required reduction of defendant’s liability by the $100,000
uninsured motor vehicle coverage limit of plaintiff’s State Farm policy. The
court reasoned that the Guaranty Fund is “a source of last resort,” and section
546(a) requires plaintiff to “collect[ ] as much as he can under his uninsured
motorist coverage.” The amount recoverable “is deemed to be the applicable
policy limit.” Since the trial court had found that under Illinois law
plaintiff was not time-barred from filing a claim under the uninsured motor vehicle
provision of his State Farm policy, it concluded that plaintiff violated the
statutory requirements of section 546(a) and “[a]ccordingly, the defendant is
entitled to a set-off against the judgment equal to the limits of plaintiff’s
uninsured motorist coverage.” The court found defendant’s $69,611.07 judgment
liability satisfied based on the $104,247.73 total reduction for payments
already collected by plaintiff and for other insurance recoverable by
plaintiff. Plaintiff filed this timely appeal.
whether section 546(a) of the Illinois Insurance Code (Code) (215 ILCS 5/546(a)
(West Supp. 2015)) required reduction of defendant’s liability by the $100,000
uninsured motor vehicle coverage limit of plaintiff’s State Farm policy. The
court reasoned that the Guaranty Fund is “a source of last resort,” and section
546(a) requires plaintiff to “collect[ ] as much as he can under his uninsured
motorist coverage.” The amount recoverable “is deemed to be the applicable
policy limit.” Since the trial court had found that under Illinois law
plaintiff was not time-barred from filing a claim under the uninsured motor vehicle
provision of his State Farm policy, it concluded that plaintiff violated the
statutory requirements of section 546(a) and “[a]ccordingly, the defendant is
entitled to a set-off against the judgment equal to the limits of plaintiff’s
uninsured motorist coverage.” The court found defendant’s $69,611.07 judgment
liability satisfied based on the $104,247.73 total reduction for payments
already collected by plaintiff and for other insurance recoverable by
plaintiff. Plaintiff filed this timely appeal.
¶ 12 ANALYSIS
*3 ¶ 13 First we consider
defendant’s motion, taken with the case, in which he requests that this court
strike plaintiff’s reply brief for raising issues for the first time and strike
the affidavit of plaintiff’s attorney attached to the reply brief. The
affidavit was not part of the record filed on appeal. Illinois Supreme Court
Rule 329 (eff. Jan. 1, 2006) states that if appellant needs to supplement the
record on appeal, he must prepare and file “a bound and certified supplemental
record which shall be filed in the reviewing court upon order issued pursuant
to motion.” Plaintiff did not file a motion in this court to supplement the
record with the affidavit, nor did he present the affidavit as a “bound and
certified supplemental record” as required by Rule 329. Therefore, we strike
the affidavit and will not consider it on appeal. Although we deny defendant’s
motion to strike plaintiff’s reply brief, we disregard any issues that
plaintiff raises for the first time in the reply brief in violation of Illinois
Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) (“[p]oints not argued are
waived and shall not be raised in the reply brief”).
defendant’s motion, taken with the case, in which he requests that this court
strike plaintiff’s reply brief for raising issues for the first time and strike
the affidavit of plaintiff’s attorney attached to the reply brief. The
affidavit was not part of the record filed on appeal. Illinois Supreme Court
Rule 329 (eff. Jan. 1, 2006) states that if appellant needs to supplement the
record on appeal, he must prepare and file “a bound and certified supplemental
record which shall be filed in the reviewing court upon order issued pursuant
to motion.” Plaintiff did not file a motion in this court to supplement the
record with the affidavit, nor did he present the affidavit as a “bound and
certified supplemental record” as required by Rule 329. Therefore, we strike
the affidavit and will not consider it on appeal. Although we deny defendant’s
motion to strike plaintiff’s reply brief, we disregard any issues that
plaintiff raises for the first time in the reply brief in violation of Illinois
Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) (“[p]oints not argued are
waived and shall not be raised in the reply brief”).
¶ 14 On appeal, plaintiff contends
that the trial court erred in using the $100,000 limit of his State Farm
uninsured motor vehicle coverage to offset the amount he could recover from the
Guaranty Fund. In making its determination, the trial court interpreted section
546(a) of the Code, which provides that before plaintiff can recover from the
Guaranty Fund, he must first “exhaust all coverage provided by any other
insurance policy * * * if the claim under such other policy arises from the
same facts, injury, or loss that gave rise to the covered claim against the
Fund. The Fund’s obligation under Section 537.2 shall be reduced by the amount
recovered or recoverable, whichever is greater, under such other insurance
policy. Where such other insurance policy provides uninsured or underinsured
motorist coverage, the amount recoverable shall be deemed to be the full
applicable limits of such coverage.” 215 ILCS 5/546(a) (West Supp. 2015). The
trial court found that the uninsured motor vehicle limit of plaintiff’s State
Farm policy was an amount recoverable “under such other insurance policy.” When
interpreting the provisions of a statute, this court’s primary objective is to
ascertain and give effect to legislative intent. People v. Marshall, 242
Ill.2d 285, 292, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011). The most reliable
indicator of legislative intent is the clear language of the statute, given its
plain and ordinary meaning. Id. We review the trial court’s
interpretation of a statute de novo. Barbara’s Sales, Inc. v. Intel
Corp., 227 Ill.2d 45, 57-58, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007).
that the trial court erred in using the $100,000 limit of his State Farm
uninsured motor vehicle coverage to offset the amount he could recover from the
Guaranty Fund. In making its determination, the trial court interpreted section
546(a) of the Code, which provides that before plaintiff can recover from the
Guaranty Fund, he must first “exhaust all coverage provided by any other
insurance policy * * * if the claim under such other policy arises from the
same facts, injury, or loss that gave rise to the covered claim against the
Fund. The Fund’s obligation under Section 537.2 shall be reduced by the amount
recovered or recoverable, whichever is greater, under such other insurance
policy. Where such other insurance policy provides uninsured or underinsured
motorist coverage, the amount recoverable shall be deemed to be the full
applicable limits of such coverage.” 215 ILCS 5/546(a) (West Supp. 2015). The
trial court found that the uninsured motor vehicle limit of plaintiff’s State
Farm policy was an amount recoverable “under such other insurance policy.” When
interpreting the provisions of a statute, this court’s primary objective is to
ascertain and give effect to legislative intent. People v. Marshall, 242
Ill.2d 285, 292, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011). The most reliable
indicator of legislative intent is the clear language of the statute, given its
plain and ordinary meaning. Id. We review the trial court’s
interpretation of a statute de novo. Barbara’s Sales, Inc. v. Intel
Corp., 227 Ill.2d 45, 57-58, 316 Ill.Dec. 522, 879 N.E.2d 910 (2007).
¶ 15 The Code established the
Guaranty Fund “to protect policyholders of insolvent insurers and third parties
who make claims under policies issued by insurers that become insolvent.” Roth
v. Illinois Insurance Guaranty Fund, 366 Ill.App.3d 787, 794, 304 Ill.Dec.
39, 852 N.E.2d 289 (2006). The Guaranty Fund’s members consist of all insurance
companies authorized to transact business in Illinois. IPF Recovery Co. v.
Illinois Insurance Guaranty Fund, 356 Ill.App.3d 658, 663, 292 Ill.Dec.
507, 826 N.E.2d 943 (2005). These Illinois insurers must contribute to the fund
in direct proportion to their premium income and these contributions “are
passed along to the insurance-buying public in the form of higher premiums.” Norberg
v. Centex Homes Corp., 247 Ill.App.3d 267, 274, 186 Ill.Dec. 710, 616 N.E.2d
1342 (1993). In creating the Guaranty Fund, the legislature wanted to prevent
use of the fund’s assets “to reimburse solvent insurance companies for payments
made to claimants or their insured under policies for which they received a
premium.” Pierre v. Davis, 165 Ill.App.3d 759, 761, 117 Ill.Dec. 392,
520 N.E.2d 743 (1987). Therefore, the Guaranty Fund “is a recovery of last
resort” and in order to recover from the fund, the claimant must “first seek to
cover his loss with funds available from other insurers.” Hasemann v. White,
177 Ill.2d 414, 420-21, 226 Ill.Dec. 788, 686 N.E.2d 571 (1997). Furthermore,
allowing the Guaranty Fund to reduce its obligation by the amount recovered or
recoverable under other policies “avoids duplicative and windfall recoveries.” Id.
at 420, 226 Ill.Dec. 788, 686 N.E.2d 571.
Guaranty Fund “to protect policyholders of insolvent insurers and third parties
who make claims under policies issued by insurers that become insolvent.” Roth
v. Illinois Insurance Guaranty Fund, 366 Ill.App.3d 787, 794, 304 Ill.Dec.
39, 852 N.E.2d 289 (2006). The Guaranty Fund’s members consist of all insurance
companies authorized to transact business in Illinois. IPF Recovery Co. v.
Illinois Insurance Guaranty Fund, 356 Ill.App.3d 658, 663, 292 Ill.Dec.
507, 826 N.E.2d 943 (2005). These Illinois insurers must contribute to the fund
in direct proportion to their premium income and these contributions “are
passed along to the insurance-buying public in the form of higher premiums.” Norberg
v. Centex Homes Corp., 247 Ill.App.3d 267, 274, 186 Ill.Dec. 710, 616 N.E.2d
1342 (1993). In creating the Guaranty Fund, the legislature wanted to prevent
use of the fund’s assets “to reimburse solvent insurance companies for payments
made to claimants or their insured under policies for which they received a
premium.” Pierre v. Davis, 165 Ill.App.3d 759, 761, 117 Ill.Dec. 392,
520 N.E.2d 743 (1987). Therefore, the Guaranty Fund “is a recovery of last
resort” and in order to recover from the fund, the claimant must “first seek to
cover his loss with funds available from other insurers.” Hasemann v. White,
177 Ill.2d 414, 420-21, 226 Ill.Dec. 788, 686 N.E.2d 571 (1997). Furthermore,
allowing the Guaranty Fund to reduce its obligation by the amount recovered or
recoverable under other policies “avoids duplicative and windfall recoveries.” Id.
at 420, 226 Ill.Dec. 788, 686 N.E.2d 571.
*4 ¶ 16 Since plaintiff must
“exhaust all coverage provided by another insurance policy” for his claim
before recovering from the Guaranty Fund under section 546(a), we must
determine whether plaintiff’s State Farm policy affords such coverage within
the meaning of the statute. We find Virginia Surety Co. v. Adjustable Forms,
Inc., 382 Ill.App.3d 663, 321 Ill.Dec. 214, 888 N.E.2d 733 (2008),
instructive. In that case, the property owner subcontracted employees from
Adjustable Forms, Inc. (Adjustable Forms), to work on a project and the owner
also provided worker’s compensation insurance covering the subcontracted
employees while they worked on the project. A subcontracted employee
subsequently suffered injuries at the work site and filed a worker’s
compensation claim that was covered by the owner’s insurance. After the owner’s
insurer became insolvent, the Guaranty Fund “stepped into” the shoes of the
insolvent insurer and made payments for the subcontracted employee’s covered
claims. Id. at 665, 321 Ill.Dec. 214, 888 N.E.2d 733. However, after
making the payments, the Guaranty Fund sought reimbursement from the insurer of
Adjustable Forms, arguing that the policy it issued to Adjustable Forms for
worker’s compensation coverage was “other coverage” that must be exhausted
before recovery from the Guaranty Fund. Id. at 666, 321 Ill.Dec. 214,
888 N.E.2d 733.
“exhaust all coverage provided by another insurance policy” for his claim
before recovering from the Guaranty Fund under section 546(a), we must
determine whether plaintiff’s State Farm policy affords such coverage within
the meaning of the statute. We find Virginia Surety Co. v. Adjustable Forms,
Inc., 382 Ill.App.3d 663, 321 Ill.Dec. 214, 888 N.E.2d 733 (2008),
instructive. In that case, the property owner subcontracted employees from
Adjustable Forms, Inc. (Adjustable Forms), to work on a project and the owner
also provided worker’s compensation insurance covering the subcontracted
employees while they worked on the project. A subcontracted employee
subsequently suffered injuries at the work site and filed a worker’s
compensation claim that was covered by the owner’s insurance. After the owner’s
insurer became insolvent, the Guaranty Fund “stepped into” the shoes of the
insolvent insurer and made payments for the subcontracted employee’s covered
claims. Id. at 665, 321 Ill.Dec. 214, 888 N.E.2d 733. However, after
making the payments, the Guaranty Fund sought reimbursement from the insurer of
Adjustable Forms, arguing that the policy it issued to Adjustable Forms for
worker’s compensation coverage was “other coverage” that must be exhausted
before recovery from the Guaranty Fund. Id. at 666, 321 Ill.Dec. 214,
888 N.E.2d 733.
¶ 17 The court first determined
whether the policy issued by Adjustable Forms’ insurer, Virginia Surety, provided
coverage for the employee’s claim. It found that Adjustable Forms participated
in and was covered under the policy the now-insolvent insurer issued to the
project’s owners, Adjustable Forms informed Virginia Surety of this coverage
under the project, and Virginia Surety subsequently returned the premiums
Adjustable Forms paid to cover the project work sites to reflect the exclusion
of those employees from payroll. Id. at 668-69, 321 Ill.Dec. 214, 888
N.E.2d 733. The court reviewed the Virginia Surety policy, interpreting the
terms used according to “their plain, ordinary, and popular meaning.” Id.
at 669, 321 Ill.Dec. 214, 888 N.E.2d 733. In particular, it looked at the
provision stating that the policy covers all listed workplaces “ ‘unless you
have other insurance or are self-insured for such workplaces.’ ” Id. The
court found that, although Virginia Surety did issue a policy providing
workers’ compensation coverage to Adjustable Forms, under the plain language of
the policy it did not include coverage for employees the company subcontracted
out to work on the project. Id.
whether the policy issued by Adjustable Forms’ insurer, Virginia Surety, provided
coverage for the employee’s claim. It found that Adjustable Forms participated
in and was covered under the policy the now-insolvent insurer issued to the
project’s owners, Adjustable Forms informed Virginia Surety of this coverage
under the project, and Virginia Surety subsequently returned the premiums
Adjustable Forms paid to cover the project work sites to reflect the exclusion
of those employees from payroll. Id. at 668-69, 321 Ill.Dec. 214, 888
N.E.2d 733. The court reviewed the Virginia Surety policy, interpreting the
terms used according to “their plain, ordinary, and popular meaning.” Id.
at 669, 321 Ill.Dec. 214, 888 N.E.2d 733. In particular, it looked at the
provision stating that the policy covers all listed workplaces “ ‘unless you
have other insurance or are self-insured for such workplaces.’ ” Id. The
court found that, although Virginia Surety did issue a policy providing
workers’ compensation coverage to Adjustable Forms, under the plain language of
the policy it did not include coverage for employees the company subcontracted
out to work on the project. Id.
¶ 18 Finding that the Virginia
Surety policy did not provide coverage for the injured employee’s claim, the
court then addressed whether the policy nonetheless qualified as “other insurance”
that must be exhausted before seeking recovery from the Guaranty Fund. The
court acknowledged the general policy underlying the Guaranty Fund that “
‘potential claims against the Fund’s assets should be reduced by a solvent
insurer, rather than the Fund.’ ” Id. at 671, 321 Ill.Dec. 214, 888
N.E.2d 733 (quoting Harrell v. Reliable Insurance Co., 258 Ill.App.3d
728, 731, 197 Ill.Dec. 293, 631 N.E.2d 296 (1994)). It found, however, that
Virginia Surety in this situation was not a solvent insurer under the statute
because it did not collect and retain a premium from Adjustable Forms for
workers’ compensation coverage of employees subcontracted out to the project
work site. Id. Therefore, the Virginia Surety policy was not “other
insurance” for purposes of the Guaranty Fund. See also Illinois Insurance
Guaranty Fund v. Virginia Surety Co., Inc., 2012 IL App (1st) 113758, ¶ 23,
365 Ill.Dec. 899, 979 N.E.2d 503 (policy at issue not “other insurance” because
it did not provide coverage of the injured employee’s claim).
Surety policy did not provide coverage for the injured employee’s claim, the
court then addressed whether the policy nonetheless qualified as “other insurance”
that must be exhausted before seeking recovery from the Guaranty Fund. The
court acknowledged the general policy underlying the Guaranty Fund that “
‘potential claims against the Fund’s assets should be reduced by a solvent
insurer, rather than the Fund.’ ” Id. at 671, 321 Ill.Dec. 214, 888
N.E.2d 733 (quoting Harrell v. Reliable Insurance Co., 258 Ill.App.3d
728, 731, 197 Ill.Dec. 293, 631 N.E.2d 296 (1994)). It found, however, that
Virginia Surety in this situation was not a solvent insurer under the statute
because it did not collect and retain a premium from Adjustable Forms for
workers’ compensation coverage of employees subcontracted out to the project
work site. Id. Therefore, the Virginia Surety policy was not “other
insurance” for purposes of the Guaranty Fund. See also Illinois Insurance
Guaranty Fund v. Virginia Surety Co., Inc., 2012 IL App (1st) 113758, ¶ 23,
365 Ill.Dec. 899, 979 N.E.2d 503 (policy at issue not “other insurance” because
it did not provide coverage of the injured employee’s claim).
¶ 19 Following Adjustable Forms,
we look at the terms of plaintiff’s State Farm policy, given their plain and
ordinary meaning, to determine whether the policy provides coverage for
plaintiff’s claim. Plaintiff was injured in December 2010, and filed his claim
against defendant in November 2012. At the time, defendant was insured by
Ullico. Ullico became insolvent on May 30, 2013, and the Guaranty Fund assumed
the defense against plaintiff’s claim.
we look at the terms of plaintiff’s State Farm policy, given their plain and
ordinary meaning, to determine whether the policy provides coverage for
plaintiff’s claim. Plaintiff was injured in December 2010, and filed his claim
against defendant in November 2012. At the time, defendant was insured by
Ullico. Ullico became insolvent on May 30, 2013, and the Guaranty Fund assumed
the defense against plaintiff’s claim.
¶ 20 Plaintiff’s State Farm policy
provides coverage for claims against an “uninsured motor vehicle,” defined as a
vehicle “insured or bonded for liability at the time of the accident” but the
insuring company “is or becomes insolvent within two years after the date of
the accident.” Plaintiff’s policy, which he obtained in Indiana as an Indiana
resident, conforms to section 27-7-5-4(c) of the Indiana Code that “[a]n
insurer’s insolvency protection applies only to accidents occurring during a
policy period in which its insured’s uninsured motorist coverage is in effect
and where the liability insurer of the tortfeasor becomes insolvent within two
(2) years after such an accident.” Ind. Code § 27-7-5-4(c) (2010). Since Ullico
became insolvent more than two years after the date of the accident, the unambiguous
terms of plaintiff’s State Farm policy do not provide uninsured motor vehicle
coverage here. Accordingly, this policy is not “other insurance” within the
meaning of section 546(a) of the Code. See Virginia Surety, 2012 IL App
(1st) 113758, ¶ 23, 365 Ill.Dec. 899, 979 N.E.2d 503; Adjustable Forms,
382 Ill.App.3d at 671, 321 Ill.Dec. 214, 888 N.E.2d 733.
provides coverage for claims against an “uninsured motor vehicle,” defined as a
vehicle “insured or bonded for liability at the time of the accident” but the
insuring company “is or becomes insolvent within two years after the date of
the accident.” Plaintiff’s policy, which he obtained in Indiana as an Indiana
resident, conforms to section 27-7-5-4(c) of the Indiana Code that “[a]n
insurer’s insolvency protection applies only to accidents occurring during a
policy period in which its insured’s uninsured motorist coverage is in effect
and where the liability insurer of the tortfeasor becomes insolvent within two
(2) years after such an accident.” Ind. Code § 27-7-5-4(c) (2010). Since Ullico
became insolvent more than two years after the date of the accident, the unambiguous
terms of plaintiff’s State Farm policy do not provide uninsured motor vehicle
coverage here. Accordingly, this policy is not “other insurance” within the
meaning of section 546(a) of the Code. See Virginia Surety, 2012 IL App
(1st) 113758, ¶ 23, 365 Ill.Dec. 899, 979 N.E.2d 503; Adjustable Forms,
382 Ill.App.3d at 671, 321 Ill.Dec. 214, 888 N.E.2d 733.
*5 ¶ 21 Defendant, however, argues
that the issue on appeal is whether “the Indiana two year statute of limitation
for an uninsured motorist claim due to the insolvency of the tortfeasor’s
insurer is applicable in Illinois.” Since this provision of the Indiana Code,
as written, is unenforceable in Illinois for public policy reasons, defendant
contends that courts should conduct a conflict of law analysis to determine
which law to apply in finding whether plaintiff satisfied the requirements of
section 546(a). Although Illinois and Indiana law do differ in this regard, we
disagree that a conflict of law analysis is proper here. Defendant argued in
his motion for satisfaction and release from judgment that State Farm’s
uninsured motor vehicle coverage applied under section 546(a), and plaintiff
was required to exhaust this coverage before seeking recovery from the Guaranty
Fund. Therefore, the relevant issue before us is whether plaintiff’s State Farm
policy is “other insurance” providing coverage for plaintiff’s claim within the
meaning of section 546(a) of the Code. The question at this point is purely one
of statutory interpretation—what constitutes “other insurance” under section
546(a)—without need to consider conflicts of law.
¶ 22 Furthermore, if we find that,
pursuant to Illinois public policy, plaintiff should have filed a claim under
his State Farm policy, plaintiff would then have to exhaust this coverage
before recovering from the Guaranty Fund. Defendant’s position that Illinois
public policy can negate unambiguous provisions of a policy that are valid and
enforceable in another state would force plaintiffs in this situation to pursue
all potential claims for coverage, even if the clear terms of the policy
preclude coverage, in order to satisfy the exhaustion requirement of section
546(a).2 Nothing in the language of section 546(a) supports
defendant’s argument. Section 546(a) states that a claimant must first “exhaust
all coverage provided by any other insurance policy” before recovering from the
Guaranty Fund, and “[w]here such other insurance policy provides uninsured or
underinsured motorist coverage, the amount recoverable shall be deemed to be
the full applicable limits of such coverage.” 215 ILCS 5/546(a) (West Supp.
2015). The plain language of this section refers only to coverage provided by
another insurance policy and, as Adjustable Forms and Virginia Surety
found, the relevant issue is simply whether the policy the Guaranty Fund seeks
to use as “other insurance” provides coverage for plaintiff’s claim. “Where an
enactment is clear and unambiguous, we are not at liberty to depart from the
plain language and meaning of the statute by reading into it exceptions,
limitations or conditions that the legislature did not express.” DeSmet ex
rel. Estate of Hays v. County of Rock Island, 219 Ill.2d 497, 510, 302
Ill.Dec. 466, 848 N.E.2d 1030 (2006).
pursuant to Illinois public policy, plaintiff should have filed a claim under
his State Farm policy, plaintiff would then have to exhaust this coverage
before recovering from the Guaranty Fund. Defendant’s position that Illinois
public policy can negate unambiguous provisions of a policy that are valid and
enforceable in another state would force plaintiffs in this situation to pursue
all potential claims for coverage, even if the clear terms of the policy
preclude coverage, in order to satisfy the exhaustion requirement of section
546(a).2 Nothing in the language of section 546(a) supports
defendant’s argument. Section 546(a) states that a claimant must first “exhaust
all coverage provided by any other insurance policy” before recovering from the
Guaranty Fund, and “[w]here such other insurance policy provides uninsured or
underinsured motorist coverage, the amount recoverable shall be deemed to be
the full applicable limits of such coverage.” 215 ILCS 5/546(a) (West Supp.
2015). The plain language of this section refers only to coverage provided by
another insurance policy and, as Adjustable Forms and Virginia Surety
found, the relevant issue is simply whether the policy the Guaranty Fund seeks
to use as “other insurance” provides coverage for plaintiff’s claim. “Where an
enactment is clear and unambiguous, we are not at liberty to depart from the
plain language and meaning of the statute by reading into it exceptions,
limitations or conditions that the legislature did not express.” DeSmet ex
rel. Estate of Hays v. County of Rock Island, 219 Ill.2d 497, 510, 302
Ill.Dec. 466, 848 N.E.2d 1030 (2006).
¶ 23 Our determination that
plaintiff’s State Farm policy is not “any other insurance” within the meaning
of section 546(a) also does not conflict with the policies underlying the
creation of the Guaranty Fund. Plaintiff’s policy does not provide coverage for
this claim, so recovery from the fund would not reimburse a solvent insurer for
payments that would be made under a policy for which premiums were paid. See Adjustable
Forms, 382 Ill.App.3d at 671-72, 321 Ill.Dec. 214, 888 N.E.2d 733. Since
plaintiff has no other policy that provides coverage for his claim here,
recovery from the Guaranty Fund would not be a duplicative or windfall
recovery. Our decision also supports the purpose of the Guaranty Fund “to place
claimants in the same position that they would have been in if the liability
insurer had not become insolvent.” Lucas v. Illinois Insurance Guaranty Fund,
52 Ill.App.3d 237, 239, 10 Ill.Dec. 81, 367 N.E.2d 469 (1977).
¶ 24 Moreover, to find that
plaintiff’s State Farm policy provides coverage here for purposes of section
546(a) would effectively preclude plaintiff from recovery contrary to the
purposes of Illinois uninsured motor vehicle law. Illinois public policy
requires uninsured motorist coverage in order to place the insured in
substantially the same position as if the uninsured tortfeasor had been
minimally insured. See American Service Insurance Co. v. Pasalka, 363
Ill.App.3d 385, 390, 299 Ill.Dec. 867, 842 N.E.2d 1219 (2006). But if we had
found that plaintiff’s State Farm policy provides coverage here, against the
clear terms of the policy no less, the Guaranty Fund could offset the $100,000
limit of plaintiff’s State Farm policy against the $69,611.07 judgment the jury
awarded him, and plaintiff would receive nothing as a result. Defendant argues
that plaintiff could bring a cause of action in Illinois for coverage under his
State Farm policy, which was obtained in Indiana by an Indiana resident and
follows Indiana law, but whether plaintiff would prevail on such a claim is
mere speculation. We find that our determination here better serves the
policies underlying both the Guaranty Fund and Illinois uninsured motorist law.
plaintiff’s State Farm policy provides coverage here for purposes of section
546(a) would effectively preclude plaintiff from recovery contrary to the
purposes of Illinois uninsured motor vehicle law. Illinois public policy
requires uninsured motorist coverage in order to place the insured in
substantially the same position as if the uninsured tortfeasor had been
minimally insured. See American Service Insurance Co. v. Pasalka, 363
Ill.App.3d 385, 390, 299 Ill.Dec. 867, 842 N.E.2d 1219 (2006). But if we had
found that plaintiff’s State Farm policy provides coverage here, against the
clear terms of the policy no less, the Guaranty Fund could offset the $100,000
limit of plaintiff’s State Farm policy against the $69,611.07 judgment the jury
awarded him, and plaintiff would receive nothing as a result. Defendant argues
that plaintiff could bring a cause of action in Illinois for coverage under his
State Farm policy, which was obtained in Indiana by an Indiana resident and
follows Indiana law, but whether plaintiff would prevail on such a claim is
mere speculation. We find that our determination here better serves the
policies underlying both the Guaranty Fund and Illinois uninsured motorist law.
*6 ¶ 25 For the foregoing reasons,
the judgment of the circuit court is reversed, and the cause remanded for
further proceedings consistent with this opinion.
the judgment of the circuit court is reversed, and the cause remanded for
further proceedings consistent with this opinion.
¶ 26 Reversed and remanded.
Presiding Justice Connors and
Justice Simon concurred in the judgment and opinion.
Footnotes:
1
See American Service Insurance Co. v. Pasalka, 363 Ill.App.3d
385, 393-94, 299 Ill.Dec. 867, 842 N.E.2d 1219 (2006) (under Illinois law, such
a provision limiting uninsured motor vehicle coverage is unenforceable as
against public policy). In order to give full and reasonable effect to policy
terms as written, as well as satisfy Illinois’s desire to offer broad
protection against uninsured motorists, Illinois courts use the discovery rule
and apply the time limitation only after plaintiff discovers the insolvency. Coronet
Insurance Co. v. Ferrill, 134 Ill.App.3d 483, 488, 89 Ill.Dec. 691, 481
N.E.2d 43 (1985).
See American Service Insurance Co. v. Pasalka, 363 Ill.App.3d
385, 393-94, 299 Ill.Dec. 867, 842 N.E.2d 1219 (2006) (under Illinois law, such
a provision limiting uninsured motor vehicle coverage is unenforceable as
against public policy). In order to give full and reasonable effect to policy
terms as written, as well as satisfy Illinois’s desire to offer broad
protection against uninsured motorists, Illinois courts use the discovery rule
and apply the time limitation only after plaintiff discovers the insolvency. Coronet
Insurance Co. v. Ferrill, 134 Ill.App.3d 483, 488, 89 Ill.Dec. 691, 481
N.E.2d 43 (1985).
2
See Burton v. Ramos, 341 Ill.App.3d 122, 126, 275 Ill.Dec. 131,
792 N.E.2d 362 (2003) (plaintiff who failed to file a timely claim for
uninsured motorist coverage was assumed to have received the policy limits of
her coverage).