                                   2017 IL App (1st) 170176


                                                                         FIRST DIVISION
                                                                         September 25, 2017



No. 1-17-0176

FOUNDERS INSURANCE COMPANY,                        )       Appeal from the
                                                   )       Circuit Court of
       Plaintiff-Appellee,                         )       Cook County
                                                   )
v.                                                 )
                                                   )
MAQBOOL SHEIKH, Individually and as father         )
and next friend of SANAN M. SHEIKH, and            )       No. 14 CH 05331
JASMIN KOPIC,                                      )
                                                   )
       Defendants,                                 )
                                                   )
(Jasmin Kopic,                                     )       Honorable
                                                   )       Kathleen Pantle,
       Defendant-Appellant.)                       )       Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Simon and Mikva concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Jasmin Kopic, appeals the order of the circuit court granting summary

judgment in favor of plaintiff, Founders Insurance Company, on plaintiff’s complaint for

declaratory judgment. On appeal, Kopic contends that the court erred in granting summary

judgment because a question of fact exists as to whether the driver of the car, Sanan M. Sheikh,

had a reasonable belief that he was entitled to use the car at the time of the accident. For the

following reasons, we reverse and remand for further proceedings.
No. 1-17-0176


¶2                                      JURISDICTION

¶3     The trial court entered its order granting summary judgment on October 5, 2016. Kopic

filed a motion to reconsider which the trial court denied on December 19, 2016. Kopic filed a

notice of appeal on January 18, 2017. Accordingly, this court has jurisdiction pursuant to Illinois

Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. May 30, 2008), governing appeals

from final judgments entered below.

¶4                                      BACKGROUND

¶5     The underlying claim arose from an accident involving Sanan in which Kopic alleged he

suffered injuries. On May 16, 2013, Sanan was 15 years old and possessed a valid Illinois

driver’s permit. That morning, Sanan’s father, Maqbool Sheikh, asked Sanan to move the

family’s 1999 Toyota Sienna van to another parking space on the street. In his deposition, Sanan

stated that his father wanted to observe Sanan parallel parking the van. While Sanan was parking

the van, his father observed from across the street. After Sanan parked the van, Maqbool was

going to take Sanan and his brother to religious school. As Sanan maneuvered the van between

parked cars, he accidentally pushed on the gas pedal instead of the brake and hit the car in front

of him. Kopic, who was standing in front of the car Sanan hit, stated that the impact caused the

car to move forward pinning Kopic between cars.

¶6     Sanan stated that he had practiced parallel parking “a few times” before with his driving

instructor and “would park on a regular basis every time [he] went out driving with [his] mom or

[his] dad.” Sanan believed he could park the van with his permit as long as his father was

supervising. Sanan eventually obtained his license when he turned 16 years old.

¶7     In his deposition, Maqbool stated that on the morning of May 16, 2013, he was going to

take Sanan and his brother to religious school. Before taking them to school, Maqbool asked

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Sanan to move the van to a parking spot on the street so he could observe his ability to park.

Maqbool was across the street as he observed Sanan parking the van. He did not see Sanan doing

anything incorrectly, but if he did, Maqbool was within hearing distance and could give Sanan

verbal directions. Maqbool stated that he realized Sanan had “touched” the car in front, and he

heard Kopic “yelling” and lying on the grass next to the sidewalk. Maqbool did not understand

why Kopic was yelling because he was observing at the time and he did not see damage to his

car or to the car that Sanan hit. Maqbool believed that Sanan could park the van with a permit as

long as he was observing and supervising Sanan.

¶8     Kopic filed a claim for personal injuries against Maqbool and Sanan. The van was

insured under a policy issued by Founders. Founders filed a complaint for declaratory judgment,

arguing it had no duty to defend or indemnify the Sheikhs because its policy excludes coverage

for “bodily injury or property damage arising out of the use by a person of a vehicle without a

reasonable belief that the person is entitled to do so.” Under the Illinois Driver Licensing Law

(Licensing Law) (625 ILCS 5/6-107.1(a)(1) (West 2016)), a driver’s permit:

       “shall be restricted *** to the operation of a motor vehicle by the minor only when under

       direct supervision of the adult instructor of a driver education program during enrollment

       in the program or when practicing under direct supervision of a parent *** or a person in

       loco parentis who is 21 years of age or more, has a license classification to operate such

       vehicle and at least one year of driving experience, and who is occupying a seat beside

       the driver.”

Founders argued that at the time of the accident, Sanan was driving without a licensed adult in

the seat next to him contrary to Illinois law. Therefore, “Sanan lacked the requisite ‘reasonable

belief’ that he was entitled to drive or operate the Sheikh vehicle on May 16, 2013.”

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¶9     Founders filed a motion for summary judgment, and the trial court granted the motion.

Relying on the supreme court case of Founders Insurance Co. v. Munoz, 237 Ill. 2d 424 (2010),

the court found that, as a matter of law, Sanan could not have a reasonable belief that he was

entitled to operate the van because Maqbool was not seated next to him as required by statute. As

a result, Founders had no duty to defend or indemnify the Sheikhs in Kopic’s underlying suit.

Kopic filed a motion to reconsider, which the trial court denied. This appeal follows.

¶ 10                                        ANALYSIS

¶ 11     Summary judgment is proper where the pleadings, depositions, affidavits, and

admissions on file, viewed in the light most favorable to the nonmoving party, show that no

genuine issue of material fact exists and the moving party is entitled to judgment as a matter of

law. American Economy Insurance Co. v. DePaul University, 383 Ill. App. 3d 172, 177 (2008).

We review the trial court’s grant of summary judgment de novo. Outboard Marine Corp. v.

Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

¶ 12   An insurer’s duty to defend is broader than its duty to indemnify. International Minerals

& Chemical Corp. v. Liberty Mutual Insurance Co., 168 Ill. App. 3d 361, 366 (1988). “An

insurer may not justifiably refuse to defend an action against its insured unless it is clear from the

face of the underlying complaints that the allegations fail to state facts which bring the case

within, or potentially within, the policy’s coverage.” Northbrook Property & Casualty Co. v.

Transportation Joint Agreement, 194 Ill. 2d 96, 98 (2000). An exclusions clause denying

coverage will be applied only if its applicability is clear and free from doubt. International

Minerals, 168 Ill. App. 3d at 367. Courts construe insurance policies liberally in favor of

coverage, and if an ambiguity exists, “it will be resolved in favor of the insured and against the

insurer.” United Services Automobile Ass’n v. Dare, 357 Ill. App. 3d 955, 963 (2005).

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¶ 13   Founders argued, and the trial court agreed, that as a matter of law Founders had no duty

to defend or indemnify the Sheikhs because Sanan could not have reasonably believed he was

entitled to use the van. Founders cited Munoz as support. In Munoz, our supreme court

considered the consolidated appeals of six cases where, in each of the underlying cases, the

driver did not have a valid license. Munoz, 237 Ill. 2d at 427. Five of the cases involved a

Founders insurance policy containing the same exclusionary provision at issue here. The

question before the court was “whether the coverage exclusion unambiguously applies to drivers

without a valid license.” Id. at 432.

¶ 14   In making its determination, the court used the standard of what the “ average, ordinary,

normal, reasonable person for whom these policies were written” would believe. (Internal

quotation marks omitted.) Id. at 437. It found that under Illinois law “[w]ith limited exceptions

not relevant here, no person shall drive a motor vehicle in this state unless such person has a

‘valid license.’ ” Id. It concluded that “without a valid license, a person cannot have a reasonable

belief that he or she is entitled to drive in this state. Without a valid license, a person has not

been given the ‘right to drive; has not been ‘qualified’ to drive; has not been ‘furnished with

proper grounds’ for doing so.” Id. at 438. Therefore, “each of the six drivers at issue here, who

either never obtained a license or whose license was suspended, could not, as a matter of law,

have a reasonable belief that he was entitled to drive simply because he owned the car or was

given the keys.” Id.

¶ 15   Like the drivers in Munoz, Sanan, did not have a valid license on May 16, 2013, when he

attempted to park the van. However, this case differs from Munoz in that Sanan did have a valid

permit to drive and no one disputes this fact. This permit provided Sanan with “proper grounds”

for operating a motor vehicle in Illinois. See 625 ILCS 5/6-107.1(a)(1) (West 2016). Founders

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points out, however, that section 6-107.1 of the Licensing Law allows permit holders to drive

only with certain restrictions, including that a licensed adult, 21 years of age or older, “occup[y]

a seat beside the driver.” Id. Since no one was seated next to Sanan while he was parking the

van, Sanan operated the vehicle in violation of the statute. Therefore, Founders argues, Sanan

was in the same position as the drivers in Munoz, and this court should find as a matter of law

that Sanan could not have had a reasonable belief he was entitled to drive the van.

¶ 16   We disagree with Founders’ broad interpretation of Munoz. Our supreme court explicitly

stated that the issue before it was narrow and preferred not to “speculate as to the myriad of other

factual scenarios to which the exclusion might apply.” Munoz, 237 Ill. 2d at 440. Furthermore,

the court recognized that “limited exceptions” exist where a person may drive in Illinois without

a valid license, but those exceptions were “not relevant” in Munoz. Id. at 437. The court found

only that, as a matter of law, a person without a valid driver’s license could not have a reasonable

belief he or she is entitled to drive because there was no “proper grounds” or “right” to drive

granted by the State of Illinois. Id. at 438. We find that the narrow holding in Munoz does not

apply here, where Sanan had a valid permit to drive.

¶ 17   The question remains whether Sanan had a reasonable belief he was entitled to drive the

van, and whether summary judgment was proper. The interpretation of an insurance policy is

governed by the same rules applicable to contract interpretation. Nicor, Inc. v. Associated

Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 416 (2006). A court’s primary function

is to ascertain and give effect to the parties’ intent as expressed by the language of the policy.

Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). An unambiguous

provision will be applied as written, unless it violates public policy. Id. A provision is

ambiguous, however, if it is susceptible to more than one reasonable interpretation. Id.

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¶ 18   Founders’ policy excludes coverage for “bodily injury or property damage arising out of

the use by a person of a vehicle without a reasonable belief that the person is entitled to do so.”

Founders contends that Sanan could not have had a reasonable belief because he was driving the

van without a licensed adult seated next to him. Founders’ policy, however, does not define

“reasonable belief,” and Founders has not cited cases finding that the mere fact Sanan was

parking the van in violation of the Licensing Law makes this exclusionary clause applicable to

him. Although a factfinder may determine that Sanan did not have a reasonable belief as required

by the policy, this conclusion is not clear or free from doubt.

¶ 19   The purpose of a permit is to allow a qualified person to practice driving “under direct

supervision of a parent” or other adult prior to obtaining a license. 625 ILCS 5/6-107.1(a)(1)

(West 2016). Both Sanan and his father, Maqbool, stated in their depositions that Sanan parked

the van so Maqbool could observe his ability to parallel park. Maqbool provided direct

supervision at all times. Although he was not in the car with Sanan, Maqbool watched him as he

parked and could give verbal direction to Sanan if necessary. Both Sanan and Maqbool believed

Sanan was properly using his permit to practice parallel parking because Maqbool was directly

supervising him. The standard, as articulated by our supreme court in Munoz, is what the

“average, ordinary, normal, reasonable person for whom these policies were written” would

believe. (Internal quotation marks omitted.) Munoz, 237 Ill. 2d at 437. A factfinder could

determine that Sanan, a valid permit-holder, reasonably believed he was allowed to practice

parallel parking while his father supervised him from outside the vehicle.

¶ 20   We find that under the facts of this case, viewed in the light most favorable to the

nonmoving party, the term “reasonable belief” is ambiguous. Therefore, the construction of that

term in the policy is a question of fact. Dash Messenger Service, Inc. v. Hartford Insurance Co.

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No. 1-17-0176


of Illinois, 221 Ill. App. 3d 1007, 1010 (1991) (when a policy is ambiguous, the interpretation of

its terms becomes a question of fact). Since a genuine issue of material fact exists, summary

judgment is not appropriate here. Therefore, we reverse the trial court’s judgment and remand for

further proceedings.

¶ 21   Reversed and remanded for further proceedings.




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