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                                 Appellate Court                        Date: 2017.06.21
                                                                        08:25:16 -05'00'




                  Knouse v. Mohamednur, 2017 IL App (1st) 161856



Appellate Court     ROGER      KNOUSE,       Plaintiff-Appellant, v. REJAT
Caption             MOHAMEDNUR, SANTORINI FIVE CAB CORPORATION, and
                    GLOBE TAXI ASSOCIATION, INC., Defendants (Rejat
                    Mohamednur, Defendant-Appellee).



District & No.      First District, First Division
                    Docket No. 1-16-1856



Filed               March 27, 2017



Decision Under      Appeal from the Circuit Court of Cook County, No. 12-L-13388; the
Review              Hon. Patrick F. Lustig, Judge, presiding.



Judgment            Reversed and remanded.



Counsel on          Costello, McMahon, Burke & Murphy, Ltd., of Chicago (Paul M.
Appeal              McMahon and James P. Costello, of counsel), for appellant.

                    Law Office of Corey C. Splitt, of Naperville (Corey C. Splitt, of
                    counsel), for appellee.



Panel               JUSTICE HARRIS delivered the judgment of the court, with opinion.
                    Presiding Justice Connors and Justice Simon concurred in the
                    judgment and opinion.
                                             OPINION

¶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.

¶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.

¶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 $5111.07 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.”
¶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
     $4247.73 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:
                 1. the ownership, maintenance, and use of which is:
                 a. not insured or bonded for liability at the time of the accident; or
                 b. insured or bonded for liability at the time of the accident; but
                                                  ***
                 (2) the insuring company:


                                                 -2-
                                                    ***
                     (b) is or becomes insolvent within 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.
¶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.
¶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.
¶ 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,
       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

           1
             See American Service Insurance Co. v. Pasalka, 363 Ill. App. 3d 385, 393-94 (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

                                                       -3-
¶ 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.

¶ 12                                              ANALYSIS
¶ 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”).
¶ 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 (2011). The most


       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 (1985).

                                                       -4-
       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 (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 (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 (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 (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 (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 (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.
¶ 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 (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 workers’ 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 workers’
       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. 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 workers’ compensation
       coverage was “other coverage” that must be exhausted before recovery from the Guaranty
       Fund. Id. at 666.
¶ 17       The court first determined whether the policy issued by Adjustable Forms’ insurer,
       Virginia Surety Company (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. The court reviewed the Virginia Surety policy,
       interpreting the terms used according to “their plain, ordinary, and popular meaning.” Id. at
       669. 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


                                                    -5-
       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
       (quoting Harrell v. Reliable Insurance Co., 258 Ill. App. 3d 728, 731 (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., 2012 IL App (1st) 113758, ¶ 23
       (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.
¶ 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; Adjustable Forms, 382 Ill. App. 3d at 671.
¶ 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


                                                   -6-
       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 v. County of Rock Island, 219 Ill. 2d 497, 510 (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. 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 (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’s 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 (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.

           2
            See Burton v. Ramos, 341 Ill. App. 3d 122, 126 (2003) (plaintiff who failed to file a timely claim
       for uninsured motorist coverage was assumed to have received the policy limits of her coverage).

                                                      -7-
¶ 25      For the foregoing reasons, the judgment of the circuit court is reversed, and the cause
       remanded for further proceedings consistent with this opinion.

¶ 26      Reversed and remanded.




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