                                                                              Digitally signed by
                             Illinois Official Reports                        Reporter of Decisions
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                                                                              accuracy and integrity
                                                                              of this document
                                     Appellate Court                          Date: 2016.11.02
                                                                              11:45:23 -05'00'




             James v. SCR Medical Transportation, Inc., 2016 IL App (1st) 150358



Appellate Court         COREY JAMES, Plaintiff-Appellant, v. SCR MEDICAL
Caption                 TRANSPORTATION, INC.; PACE SUBURBAN BUS SERVICE, a
                        Division of the Regional Transportation Authority (RTA); EMPIRE
                        FIRE AND MARINE INSURANCE COMPANY; and GEMINI
                        INSURANCE         COMPANY,        Defendants     (SCR     Medical
                        Transportation, Inc.; Pace Suburban Bus Service, a Division of the
                        Regional Transportation Authority (RTA); and Empire Fire and
                        Marine Insurance Company, Defendants-Appellees).



District & No.          First District, Fourth Division
                        Docket No. 1-15-0358


Rule 23 order filed     June 16, 2016
Rule 23 order
withdrawn               August 11, 2016
Opinion filed           September 1, 2016


Decision Under          Appeal from the Circuit Court of Cook County, No. 12-CH-08565; the
Review                  Hon. Peter Flynn, Judge, presiding.



Judgment                Affirmed.



Counsel on              Shelist Law Firm L.L.C., of Chicago (Samuel A. Shelist, of counsel),
Appeal                  for appellant.

                        Cremer, Spina, Shaughnessy, Jansen & Siegert, L.L.C., of Chicago
                        (Brian A. O’Gallagher and Kristina M. Beck, of counsel), for
                        appellees.
     Panel                    JUSTICE McBRIDE delivered the judgment of the court, with
                              opinion.
                              Justices Howse and Cobbs concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff Corey James, a van driver employed by SCR Medical Transportation, Inc. (SCR),
       to drive a Pace paramedical transportation vehicle, suffered personal injuries in Chicago on
       March 9, 2010, in a collision with a motorist he contends was underinsured. After receiving the
       $50,000 limit of the other motorist’s insurance coverage and a $28,608 settlement in workers’
       compensation benefits from his own employer, James requested underinsured motorist (UIM)
       coverage from his employer’s business automobile liability insurer, Empire Fire and Marine
       Insurance Company (Empire). Empire denied the claim because SCR’s UIM coverage was
       limited to $50,000, which was the amount James had already received from the other driver,
       meaning that he was not “underinsured” within the meaning of Empire’s policy. James then
       filed this suit seeking declaratory relief entitling him up to $1 million in UIM coverage from
       SCR, Pace, and Empire, on grounds that when SCR contracted to provide drivers for Pace
       vans, SCR agreed to maintain $1 million in UIM coverage. He made four attempts at pleading
       a cause of action. James appeals from a trial court order dismissing his third amended
       complaint with prejudice pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS
       5/2-619 (West 2010).
¶2         We note that one of the named defendants, Gemini Insurance Company (Gemini), is not
       participating in this appeal because its dismissal from the suit is not being challenged. Gemini
       provided excess umbrella insurance to James’s employer, SCR, and James included Gemini’s
       name in the caption of his original, first amended, and second amended complaints, but made
       no allegations against the company. The trial court granted Gemini’s motion to dismiss. James
       neither appealed from that ruling nor included Gemini in his third amended complaint.
¶3         Motor vehicle liability, UIM coverage, and uninsured motorist (UM) coverage are
       statutorily required forms of insurance. Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 68, 949
       N.E.2d 639, 652 (2011) (citing 215 ILCS 5/143a, 143a-2(4) (West 2004), and 625 ILCS
       5/7-601(a) (West 2004)).The term “underinsured motor vehicle” means a motor vehicle whose
       ownership, maintenance, or use has resulted in bodily injury or death of the insured, as defined
       in the policy, and for which the sum of the limits of liability under all bodily injury liability
       insurance policies or under bonds or other security required to be maintained under Illinois law
       applicable to the driver or to the person or organization legally responsible for such vehicle and
       applicable to the vehicle, is less than the limits for UIM coverage provided the insured as
       defined in the policy at the time of the accident. 215 ILCS 5/143a-2 (West 2004). The purpose
       of UIM coverage is to protect the insured and any additional insureds from the risk that a
       negligent driver of another vehicle who causes injury to the insured or the additional insureds
       will have inadequate liability coverage to compensate the injuries caused by his or her
       negligence. In re Estate of Anderson, 408 Ill. App. 3d 428, 432, 945 N.E.2d 661, 665 (2011).
       UIM and UM are both intended “to place the insured in the same position he [or she] would
       have occupied if the tortfeasor had carried adequate insurance.” (Internal quotation marks
       omitted.) Phoenix Insurance Co., 242 Ill. 2d at 68, 949 N.E.2d at 652.

                                                   -2-
¶4        The first substantive issue we address is whether James may bring a claim against his
     employer. Five of the nine counts were directed at SCR. In count I, James sought a declaratory
     judgment to the effect that the SCR-Pace contract regarding paratransit service required $1
     million in UIM coverage and that a purported oral modification of that requirement was
     “against public policy and void.” Count IV consisted of allegations that SCR, Pace, and
     Empire engaged in a civil conspiracy to “circumvent” the $1 million UIM requirement. Count
     V was a proposed class action seeking a declaratory judgment on behalf of all injured
     passengers and drivers of SCR-Pace vans who had been denied more than $50,000 in UIM
     coverage. There were two counts labeled as “Count VI,” the second of which sought a
     declaratory judgment that SCR had “an obligation to provide $1,000,000 UIM benefits and has
     breached this obligation.” Count VII was similar, but recast the allegations “AS TO THE
     CLASS OF PERSONS AGGRIEVED” and described the proposed class of plaintiffs as “all
     van drivers and handicapped passengers” who have not been paid “the $1,000,000 UIM
     benefits to which they are entitled.”
¶5        We apply de novo review to the dismissal of the claims against SCR pursuant to section
     2-619 of the Code of Civil Procedure. Martinez v. Gutmann Leather, LLC, 372 Ill. App. 3d 99,
     101, 865 N.E.2d 325, 327 (2007). Under section 2-619, the defendant admits to all well-pled
     facts in the complaint, as well as any reasonable inferences which may be drawn from those
     facts, but asks the court to conclude that there is no set of facts which would entitle the plaintiff
     to recover. Martinez, 372 Ill. App. 3d at 101, 865 N.E.2d at 327. Given the de novo standard,
     we may affirm on any basis or ground for which there is a factual basis in the record regardless
     of whether the trial court relied on that reasoning. Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d
     575, 586, 836 N.E.2d 681, 691 (2005). In other words, we are reviewing the ruling, not the trial
     court’s reasons for entering that ruling. See also Barney v. Unity Paving, Inc., 266 Ill. App. 3d
     13, 18, 639 N.E.2d 592, 595 (1994) (in de novo review of summary judgment proceeding,
     appellate court reviewed propriety of ruling, not trial judge’s explicit findings). Accordingly,
     we will not set out the numerous arguments that were made for and against the dismissal of
     James’s fourth complaint or the remarks which the trial judge made about the arguments.
¶6        James contends he may sue SCR because he is exempt from the principle that an employee
     injured on the job normally cannot sue his Illinois employer, provided the employee is entitled
     to receive workers’ compensation benefits from the employer or the employer’s insurer.
     Illinois Insurance Guaranty Fund v. Virginia Surety Co., 2012 IL App (1st) 113758, ¶ 16, 979
     N.E.2d 503. The Act specifies that an employee has no right to sue his or her employer but may
     instead automatically recover for injuries arising out of and in the course of his or her
     employment without regard to any fault on his or her part. Illinois Insurance Guaranty Fund,
     2012 IL App (1st) 113758, ¶ 16, 979 N.E.2d 503; Fregeau v. Gillespie, 96 Ill. 2d 479, 486, 451
     N.E.2d 870, 873 (1983) (indicating the workers’ compensation system “was designed to
     provide speedy recovery without proof of fault for accidental injuries” that occur in the work
     place during the course of work); 820 ILCS 305/5(a) (West 2008) (“No common law or
     statutory right to recover damages from the employer *** for injury or death sustained by any
     employee while engaged in the line of his duty as such employee, other than the compensation
     herein provided, is available to any employee who is covered by the provisions of this Act
     ***.”); 820 ILCS 305/11 (West 2008) (workers’ compensation “shall be the measure of the
     responsibility of any employer”).



                                                   -3-
¶7         Under the statutory system, the employer is compelled to pay the employee and cannot
       assert various defenses that could be pled in a tort suit, however, the employer’s liability is
       capped under the Act’s comprehensive schedule of recovery. Illinois Insurance Guaranty
       Fund, 2012 IL App (1st) 113758, ¶ 16, 979 N.E.2d 503. Therefore, when an accident occurs,
       an employer assumes a new liability with regard to fault but avoids the prospect of a large civil
       damage award (Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462, 564 N.E.2d 1222,
       1225 (1990) (discussing purpose of and exceptions to the Act)) and the employee receives
       prompt compensation for his or her injuries (Illinois Insurance Guaranty Fund, 2012 IL App
       (1st) 113758, ¶ 16, 979 N.E.2d 503).
¶8         In order to escape the exclusive-remedy rule, an employee must allege and prove one of
       four exceptions: his or her injury (1) was not accidental, (2) did not arise from his or her
       employment, (3) was not received during the course of his or her employment, or (4) was
       noncompensable under the Act, such as being discharged in retaliation for filing a claim for
       workers’ compensation. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d at 1225; Fredericks v.
       Liberty Mutual Insurance Co., 255 Ill. App. 3d 1029, 1031, 627 N.E.2d 782, 785 (1994).
¶9         James argues that he may sue SCR because he is “not suing SCR for ‘injuries’ but for
       [SCR’s] failure to have and maintain [$1 million] in UIM coverage.” Truly, however, what
       James is suing over is SCR’s failure to have and maintain $1 million in UIM coverage with
       which to compensate him for his injuries. Thus, his claim against SCR comes within the scope
       of the Act and is barred by it, even if he had not accepted compensation through that system.
¶ 10       Secondly, as we outlined above, the record indicates that James filed a workers’
       compensation claim on March 17, 2010, which was a week after the accident, and accepted
       temporary total disability payments totaling $8026 from SCR while he was “intermittently”
       disabled until October 12, 2010, as well as a final, lump sum payment of $20,582 from SCR
       about 15 months after the accident. Accordingly, our second reason for rejecting James’s
       carefully worded argument is that he elected to take workers’ compensation benefits on
       grounds that his injuries were compensable under the Act, and he cannot now allege that the
       same injuries were not compensable under the Act. Collier v. Wagner Castings Co., 81 Ill. 2d
       229, 234, 408 N.E.2d 198, 200 (1980) (once the employee takes the express position that an
       injury is compensable under the Act, he is barred from taking the mutually exclusive position
       that his injury is an exception to the Act); Copass v. Illinois Power Co., 211 Ill. App. 3d 205,
       210, 569 N.E.2d 1211, 1214 (1991) (an injured employee is not permitted to seek workers’
       compensation benefits on a claim that the injuries are compensable and pursue a common-law
       action on grounds that the injury is noncompensable). James’s compensation claim and
       James’s lawsuit are legally inconsistent.
¶ 11       In addition, when James settled his workers’ compensation claim against SCR on June 8,
       2011, he indicated he did not anticipate further medical treatment and expense, and he
       expressly gave up the right to pursue further compensation from SCR, even if his condition
       worsened. In the settlement contract, the parties specified:
                   “This represents a full and final settlement of all claims under the Workers’
               Compensation Act for injuries allegedly incurred on or about 3/10/2010, including any
               results, developments or sequelae, fatal or non-fatal, allegedly resulting from such




                                                   -4-
               accidental injuries.1 Issues exist as to whether these injuries are compensable, and this
               settlement is made to settle these issues. The settlement includes liability for temporary
               total compensation and all medical, surgical and hospital expenses incurred or to be
               incurred allegedly resulting from the accidental injury, for all of which the Petitioner
               [James] assumes responsibility.
                    ***
                    The parties believe that petitioner shall not have the need for future medical
               expenses related to the claimant’s injury and therefore have not allocated any sum for
               future medical expenses. ***
                    There are disputed questions of law and fact concerning the claim for injuries
               allegedly sustained by petitioner on 3/10/2010. In order to avoid further litigation and
               as a purchase of peace between the parties, the parties hereto have agreed to
               compromise, adjust, and to settle any and all claims for benefits under the Workers’
               Compensation Act arising out of the accident of 3/10/2010 upon payment of all
               obligations stated herein. The Respondent [SCR] is herby [sic] released, acquitted and
               discharged from any and all liability under the Workers’ Compensation Act in any way
               arising out of the occurrence reflected herein.”
¶ 12       James also said:
                    “I have read this document, understand its terms, and sign this contract voluntarily.
               *** I understand that by signing this contract, I am giving up the following rights:
                                                     ***
                    3. My right to further medical treatment, at the employer’s [expense], for the results
               of this injury.
                    4. My right to any additional benefits if my condition worsens as a result of this
               injury.”
¶ 13       Any one of these three reasons—suffering work-related injuries, claiming that the injuries
       were compensable under the Act, or entering into a settlement contract that expressly released
       his employer from further expense—is enough to conclude that James cannot maintain this
       civil suit against SCR.
¶ 14       Our conclusion is not changed by James’s citation to Fredericks, which we cited above for
       the proposition that James may not sue his employer. Fredericks, 255 Ill. App. 3d 1029, 627
       N.E.2d 782. This is the only authority James cites and he makes a cursory presentation of it,
       instead of explaining how the dispute is similar to his own suit against SCR.
¶ 15       Fredericks was an injured worker’s attempt to get the statutory benefits that James has
       already received from his employer. Fredericks, 255 Ill. App. 3d 1029, 627 N.E.2d 782. It
       concerns an ironworker who was hired to help renovate a large bridge that spans the
       Mississippi River and connects two different states, Illinois and Missouri. Fredericks, 255 Ill.
       App. 3d at 1030, 627 N.E.2d at 784. The ironworker was injured on the job and sought
       workers’ compensation benefits under the Illinois system, rather than the Missouri system.
       Fredericks, 255 Ill. App. 3d at 1030, 627 N.E.2d at 784. His compensation claim was rejected.
       Fredericks, 255 Ill. App. 3d at 1030, 627 N.E.2d at 784. The ironworker then filed suit in

          1
            Sequelae are aftereffects or secondary results of a disease or injury. Webster’s Third New
       International Dictionary 2071 (1986).

                                                    -5-
       Illinois against his employer and the employer’s workers’ compensation insurance carrier,
       contending that before the job began, his employer and his trade union entered into a binding
       agreement that any employee injury occurring during the project would be resolved under the
       Illinois statute. Fredericks, 255 Ill. App. 3d at 1030, 627 N.E.2d at 784. In his suit, the
       ironworker contended he was a third-party beneficiary of their agreement and that he was
       entitled to its enforcement. Fredericks, 255 Ill. App. 3d at 1030, 627 N.E.2d at 784. The
       employer, however, brought a motion to dismiss and persuaded the circuit court of St. Clair
       County that a dispute involving workers’ compensation benefits was outside the court’s
       subject matter jurisdiction. Fredericks, 255 Ill. App. 3d at 1030, 627 N.E.2d at 784.
¶ 16        Instead of then taking the issue to the administrative agency that handled workers’
       compensation claims, which was the Illinois Industrial Commission,2 the ironworker took an
       appeal. Fredericks, 255 Ill. App. 3d 1029, 627 N.E.2d 782. In its decision, the appellate court
       outlined the principle that workers’ compensation benefits are the full measure of an injured
       employee’s compensation and that lawsuits against the employer are generally forbidden.
       Fredericks, 255 Ill. App. 3d at 1030-31, 627 N.E.2d at 784-85. The appellate court then
       discussed why certain exceptions have been made to the exclusive-remedy rule. Fredericks,
       255 Ill. App. 3d at 1030-32, 627 N.E.2d at 784-86. The appellate court next determined that the
       commission and the courts had concurrent jurisdiction over whether the ironworker was
       contractually entitled to benefits under the Illinois system of compensation. Fredericks, 255
       Ill. App. 3d at 1034-35, 627 N.E.2d at 787. This was because the commission routinely
       arbitrates which State’s workers’ compensation laws apply to a given injury and the circuit
       court has authority to resolve contract disputes. Fredericks, 255 Ill. App. 3d at 1034, 627
       N.E.2d at 786. It was not necessary for the court to defer jurisdiction to the commission,
       however, because the suit before the court involved the worker’s contractual right to benefits
       rather than a question about the Act and because the agency had no particular specialized or
       technical expertise on the issue. Fredericks, 255 Ill. App. 3d at 1034-35, 627 N.E.2d at 787.
       Accordingly, the appellate court reversed the circuit court’s dismissal for lack of subject matter
       jurisdiction and remanded the case to that court for further proceedings. Fredericks, 255 Ill.
       App. 3d at 1036, 627 N.E.2d at 788.
¶ 17        We see no similarity between the ironworker in Fredericks and the current appellant. The
       ironworker was arguing his contractual right to workers’ compensation benefits, but James has
       received workers’ compensation benefits, consisting of not only temporary disability
       payments for seven months but also a final lump sum payment, which was intended to address
       all of James’s injury. In mid-2011, James and his then attorney signed a settlement contract
       with SCR indicating, “The settlement [figure] includes liability for temporary total
       compensation and all medical, surgical and hospital expenses incurred or to be incurred
       allegedly resulting from the accidental injury, for all of which the Petitioner [James] assumes
       responsibility.” James expressly acknowledged in 2011 that he was being fully compensated
       by SCR, but the following year he filed this suit against SCR for additional compensation. The
       case he relies upon does not permit him to do this.


          2
           On January 1, 2005, the Illinois Industrial Commission became known as the Illinois Workers’
       Compensation Commission. Roberson v. Industrial Comm’n, 225 Ill. 2d 159, 162 n.1, 866 N.E.2d 191,
       193 n.1 (2007) (citing 820 ILCS 305/1(c) (West 2004)).

                                                   -6-
¶ 18       Despite James’s citation to Fredericks, we find that his claims against SCR are not exempt
       from the principle that an injured employee’s relief is through the workers’ compensation
       system rather than the courts. Illinois Insurance Guaranty Fund, 2012 IL App (1st) 113758,
       ¶ 16, 979 N.E.2d 503. The circuit court’s dismissal of SCR was proper and we affirm that
       ruling.
¶ 19       The next question is whether James may sue Pace in counts I, IV, V, VI (the first count of
       two labeled as count VI), and VIII based on the UIM insurance provision in the SCR-Pace
       contract, even though James is not one of the contracting parties. The concept that a third-party
       direct beneficiary may sue over the terms of a contract was introduced above by the
       ironworker’s case, Fredericks. Fredericks, 255 Ill. App. 3d 1029, 627 N.E.2d 782. James
       contends he is a third-party beneficiary of actually three documents: (1) Pace’s public
       request-for-proposals, which mandated $1 million in liability, UIM, and UM coverage; (2)
       SCR’s proposal to Pace that included the three requested forms of insurance coverage; and (3)
       the resulting SCR-Pace contract.
¶ 20       It is undisputed that SCR initially had equal amounts of the three forms of coverage, but
       after 14 months it purchased a policy from a different insurer and that its new policy with
       Empire reduced the UIM and UM limits to $50,000. At the time, SCR had a fleet of 236 vans
       and SCR (not Pace) contends SCR’s insurance broker proposed a reduction in SCR’s costs for
       the policy year beginning October 2009 by modifying SCR’s UIM and UM limits. The record
       includes a form that SCR’s principal signed in order to affirmatively select the reduced UIM
       and UM coverage. The insurance broker testified that the reduction came about because he
       telephoned a risk manager at Pace who verbally gave permission for the coverage reduction
       and that when the broker conveyed the information to SCR, SCR then agreed to the change in
       coverage and to contract with Empire. The Pace risk manager who purportedly gave the oral
       authorization died before James filed this suit and Pace now states that because it has no
       written record in its files, it can neither confirm nor deny that the conversation described by the
       broker took place.
¶ 21       James is not disputing that the reduced UIM and UM selection form is valid, but he argues
       that any oral modification between SCR and Pace was ineffective because the SCR-Pace
       written contract required that modifications be made in writing and there are no e-mails,
       letters, meeting minutes of the Pace board of directors or ordinances adopted by the board that
       document Pace’s approval for SCR to reduce the coverage. James contends that if Pace and
       SCR actually agreed to the reduced coverage, it would be “an outrageous abuse of power” by a
       public agency and that for “public policy” reasons, we should “plac[e] PACE in the position of
       an insurer, [by] requiring [it] to make good on the losses that would have been covered had
       proper insurance been obtained.”
¶ 22       Pace responds that James has no right to bring a claim based on the SCR-Pace insurance
       clause because a third party cannot enforce the terms of a contract unless the document
       expressly identifies that person by name or at least by a descriptive class to which the person
       belongs. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1020, 905 N.E.2d
       920, 924 (2009); Barney, 266 Ill. App. 3d at 20, 639 N.E.2d at 597.
¶ 23       In Martis, for instance, a chiropractor who received discounted rather than full payments
       for his services in treating an injured worker tried to enforce the terms of the employer’s
       workers’ compensation insurance policy. Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924.
       The policy said the insurer would “pay promptly when due” and that the insurer was “directly

                                                    -7-
       and primarily liable to any person entitled to benefits payable by this insurance,” that those
       persons “may enforce our duties,” and that the “[e]nforcement may be against us or against you
       [employer] and us [insurer].” (Internal quotation marks omitted.) Martis, 388 Ill. App. 3d at
       1018, 905 N.E.2d at 923. The insurer applied a PPO discount to the chiropractor’s bills, even
       though he did not have a PPO discount agreement with the insurer, and he sued to collect the
       difference. Martis, 388 Ill. App. 3d at 1018, 905 N.E.2d at 923. There is, however, a strong
       presumption in Illinois that the contracting parties intend that the terms of their agreement
       apply only to them, not to others. Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924; Barney,
       266 Ill. App. 3d at 19, 639 N.E.2d at 596. Even the fact that the contracting parties may have
       known, expected, or even intended that others would indirectly benefit from their agreement is
       not enough to overcome the presumption that the contract was intended to directly benefit only
       the contracting parties. Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924; Barney, 266 Ill.
       App. 3d at 20, 639 N.E.2d at 597. Only direct beneficiaries have rights against the promisor
       and incidental beneficiaries have no rights whatsoever. Barney, 266 Ill. App. 3d at 20, 639
       N.E.2d at 597. If the contract does not identify the plaintiff by name or the class to which he
       belongs, then the plaintiff is not a third-party beneficiary of the contract. Martis, 388 Ill. App.
       3d at 1020, 905 N.E.2d at 924. The workers’ compensation insurance policy at issue in Martis
       did not identify the specific chiropractor or medical providers in general as third-party
       beneficiaries, and it was the injured worker, not his medical provider, whom the contract was
       referring to as the “person entitled to benefits” under the workers’ compensation scheme.
       Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924. Because the chiropractor was not a direct
       third-party beneficiary of the policy, the chiropractor had no right to enforce its terms. Martis,
       388 Ill. App. 3d at 1024, 905 N.E.2d at 927.
¶ 24       The contract at issue in Barney was one in which the City of Chicago hired a contractor to
       “straighten out the Lake Shore Drive S-curve.” Barney, 266 Ill. App. 3d at 15, 639 N.E.2d at
       594. The contract required the contractor to require any subcontractors that it hired to obtain
       liability insurance before beginning work. Barney, 266 Ill. App. 3d at 15, 639 N.E.2d at 594.
       One of the subcontractors did not have motor vehicle liability insurance when it began hauling
       paving materials to and from the construction site and purportedly crashed into the back of a
       Chicago Transit Authority bus and caused serious injuries to one of the passengers. Barney,
       266 Ill. App. 3d at 17, 639 N.E.2d at 594. The injured commuter contended the purpose of the
       clause requiring the contractor to require its subcontractors to get insurance was to protect
       members of the public such as herself who might be injured by subcontractors. Barney, 266 Ill.
       App. 3d at 17, 639 N.E.2d at 594. She contended this fact gave her the right to sue on the City
       of Chicago’s contract, even though she was not one of the parties that executed the agreement.
       Barney, 266 Ill. App. 3d at 19, 639 N.E.2d at 596. The court could find no language in the
       contract that expressly or even impliedly indicated that the insurance requirements were
       included for the direct benefit of the public. Barney, 266 Ill. App. 3d at 20, 639 N.E.2d at 597.
       Instead, the City of Chicago and the contractor persuasively argued that the insurance
       provisions were for their direct benefit to insulate them from loss for claims such as the
       passenger’s suit. Barney, 266 Ill. App. 3d at 19, 639 N.E.2d at 596.
¶ 25       Similarly, Pace now contends that Pace was the only intended beneficiary of the insurance
       terms it included in the SCR-Pace contract and Pace expressly denies that there was an
       intention to confer a benefit on any other party. Pace’s general counsel since 2008 testified that
       Pace typically requires its vendors to carry automobile liability coverage, UM coverage, and


                                                    -8-
       UIM coverage because Pace “intends to protect itself from *** claimants that are allegedly
       injured by, or while traveling on, vehicles being operated by Pace vendors.” Pace contends it is
       nonsensical for James to argue that even though SCR was statutorily required to provide for
       James through the workers’ compensation system, that both SCR and Pace specifically
       intended for the UM and UIM coverage requirements in the SCR-Pace contract to benefit
       James if he was injured while driving for SCR. Pace points out that it had no obligation to
       provide any UM and UIM coverage for James while James was working for SCR. Pace also
       argues that James’s “public contract” or “public policy” argument is unpersuasive because
       Pace’s internal guidelines for contract modification do not create rights for individuals like
       James to sue Pace. See Rogers v. West Construction Co., 252 Ill. App. 3d 103, 111, 623 N.E.2d
       799, 804 (1993) (duties owed between contracting parties cannot be read to establish
       beneficiary rights for nonparties). Pace also contends a fundamental problem with James’s suit
       is that he has failed to cite any legal theory or contract provision that could compel Pace to be
       placed “in the position of an insurer” of James. This is because even if the SCR-Pace contract
       was enforced without the oral modification authorizing SCR to reduce its UIM from $1 million
       to $50,000, then it would be SCR, not Pace, that would be contractually obligated (by Pace) to
       maintain the $1 million level of UIM coverage. Pace also argues that James’s suit against Pace
       is time-barred.
¶ 26        We find that James is not a third-party beneficiary of the SCR-Pace contract. James is like
       the chiropractor in Martis who could cite no contract language that identified him by name or
       referred to a descriptive class that encompassed him. Martis, 388 Ill. App. 3d at 1020, 905
       N.E.2d at 924. James is also like the bus passenger in Barney, who argued that the purpose of
       the insurance requirement was to protect members of the public who might be negligently
       injured during the performance of a work contract, but could cite no terms in the contract that
       affirmatively stated this intention. Barney, 266 Ill. App. 3d at 19, 639 N.E.2d at 596. James has
       no contract provisions with which to overcome the strong presumption in Illinois that
       contracting parties intend that the terms of their agreement apply only to them, not to others.
       Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924; Barney, 266 Ill. App. 3d at 19, 639 N.E.2d
       at 596.
¶ 27        James incorrectly states that Pace van “passengers and drivers are the only possible
       potential beneficiaries” of UIM and UM coverage. His contention is contrary to the discussion
       in Barney indicating that one of the purposes of liability insurance is to insulate the insured and
       its contracting parties from claims. Barney, 266 Ill. App. 3d at 19, 639 N.E.2d at 596. The trial
       judge emphasized this point to James before he filed this appeal. Although our review is
       de novo and does not need to rely on any reasoning of the trial judge (Guinn, 361 Ill. App. 3d at
       586, 836 N.E.2d at 691), we agree with the judge’s remarks at the hearing on Pace’s and SCR’s
       motions to dismiss James’s third amended complaint. The judge said to James and the other
       parties:
                    “Despite the argument that UIM coverage can’t benefit SCR or Pace because
                theoretically it only applies where SCR or Pace are not at fault, that argument has not
                prevented most people from carrying insurance[.] *** Insurance coverage has a
                tendency to benefit the people who have insurance coverage even in its UM and UIM
                aspects because the risk of one who has such coverage of getting directly sued is [then]
                less. That was the underlying point of Barney [which concerned liability insurance, not



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               UIM insurance] and I think it applies in the UIM context as well despite James’
               eloquent arguments to the contrary.
                   Defending a lawsuit[,] even if one wins[,] is an expensive undertaking. *** So it’s
               not irrational for Pace to want [insurance coverage] to guard against that possibility [of
               getting sued].”
¶ 28       Thus, James’s contention, that passengers and drivers, not SCR and Pace, benefit from the
       UIM and UM coverage, was considered and rejected by the reasoning in Barney and when
       James first presented the contention in the trial court. Barney, 266 Ill. App. 3d at 19, 639
       N.E.2d at 596. Pace’s interest in avoiding the expense of litigation is particularly true when one
       considers that public transportation providers in northeastern Illinois, such as Pace and the
       regional commuter rail services, have not been on “sound financial footing” and have had a
       “long history of financial difficulties.” Copes v. Northeast Illinois Regional Commuter R.R.
       Corp., 2015 IL App (1st) 150432, ¶ 38, 45 N.E.3d 1123. These financial problems have been
       so debilitating that the General Assembly shortened the usual two-year statute of limitations
       applicable to tort actions (735 ILCS 5/13-202 (West 2008)) to just a one-year statute of
       limitations specifically applicable to actions brought against Pace and the other public
       transportation providers. Copes, 2015 IL App (1st) 150432, ¶ 38, 45 N.E.3d 1123 (discussing
       the legislature’s motivation for limiting the time in which to bring an injury claim against Pace,
       Metra, and the CTA); 70 ILCS 3615/5.03 (West 2008) (one-year statute of limitations for
       actions against the Regional Transit Authority and its divisions including Pace); 70 ILCS
       3605/41 (West 2008) (one-year statute of limitations for actions against the CTA).
¶ 29       Furthermore, the fact that SCR and Pace may have known that others, such as van drivers
       and passengers, would indirectly benefit from the minimum insurance clause in the SCR-Pace
       contract does not overcome the presumption that the contract was intended to directly benefit
       only SCR and Pace. Martis, 388 Ill. App. 3d at 1020, 905 N.E.2d at 924; Barney, 266 Ill. App.
       3d at 20, 639 N.E.2d at 597.
¶ 30       James also seems to be arguing that he is a third-party beneficiary of the Empire insurance
       contract, because he comes within its definition of an “insured” as someone who occupied a
       covered auto. Assuming this is true, we fail to see how enforcing the terms of the Empire
       insurance contract, with its UIM limit of $50,000, would entitle James to collect more than
       $50,000 in UIM coverage. Nor do we see how enforcing the terms of the Empire policy would
       entitle James to reform the SCR-Pace contract in order to reform the Empire policy into
       providing a higher limit of UIM coverage. This would be a circular argument that is not
       supported by citation to any authority on the reformation of contracts.
¶ 31       Accordingly, we conclude that James is not a third-party beneficiary of the SCR-Pace
       contract. We affirm the dismissal of Pace on that basis.
¶ 32       The final defendant, Empire, contends we lack jurisdiction to review the dismissal of
       claims against it due to a defect in James’s notice of appeal. Empire points out that it was
       dismissed as a party as of May 30, 2014, when the trial judge disposed of James’s second
       amended complaint and that James’s notice of appeal refers only to the subsequent order dated
       January 12, 2015, granting SCR’s and Pace’s motions to dismiss the third amended complaint.
       Empire cites Supreme Court Rule 302(c)(2) requiring an appellant to “specify the judgment or
       part thereof *** appealed from” and case law indicating that a notice of appeal confers
       jurisdiction to consider only the judgments or parts of judgments that are specified in the notice
       of appeal. Ill. S. Ct. R. 303(b)(2) (eff. Sept. 1, 2006); General Motors Corp. v. Pappas, 242 Ill.

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       2d 163, 175-76, 950 N.E.2d 1136, 1143-44 (2011) (a notice of appeal confers jurisdiction);
       Atkinson v. Atkinson, 87 Ill. 2d 174, 177-78, 429 N.E.2d 465, 466-67 (1981) (in which the
       Illinois Supreme Court concluded that the appellate court should not have reviewed an order
       awarding child custody when the notice of appeal specified only orders regarding marital
       property). We disagree with Empire.
¶ 33        We disagree with Empire because in paragraph 38 of his third amended complaint, James
       stated “JAMES adopts the prior complaints and incorporates them into this complaint, and ***
       re-states the [previously dismissed or stricken] counts herein” and he then expressly identified
       counts II through V as having been previously dismissed or stricken, which were counts
       directed at Empire. By referring to and adopting certain portions of his second amended
       complaint into his third amended complaint, James effectively preserved his arguments as to
       the dismissal of the counts regarding Empire and he preserved those issues for review. See
       Bonhomme v. St. James, 2012 IL 112393, ¶ 17, 970 N.E.2d 1 (indicating that the plaintiff’s
       failure to refer to or adopt a prior pleading in an amended pleading waived any objection to the
       trial court’s ruling on the former complaint and that those claims were effectively abandoned
       and withdrawn). James’s notice of appeal indicated he was appealing from the
       “judgment/order” dated January 12, 2015, which was the dismissal of the third amended
       complaint and that the relief he was seeking was for the reviewing court to “[r]everse dismissal
       of cause of action.” The purpose of a notice of appeal is to inform the prevailing party that the
       other litigant seeks review of the trial court’s decision. General Motors, 242 Ill. 2d at 176, 950
       N.E.2d at 1144. A notice of appeal is sufficient to confer appellate jurisdiction when it sets out
       the judgment complained of and the relief sought, thus advising the successful litigant of the
       nature of the appeal. General Motors, 242 Ill. 2d at 176, 950 N.E.2d at 1144. We find that by
       filing an appeal from the order dismissing the third amended complaint, James was also
       appealing from the dismissal of the restated counts from the second amended complaint. While
       the notice of appeal would have been more informative if it specified both the date the second
       amended complaint was dismissed and the date the third amended complaint was dismissed,
       James’s notice was complete and sufficient to confer appellate jurisdiction over all the counts
       of the third amended complaint, including the ones directed at Empire.
¶ 34        We also disagree with Empire’s jurisdiction argument because Empire was not prejudiced
       by the contents of James’s notice of appeal. A notice of appeal is to be liberally construed and
       unless it contains a defect that is both prejudicial and substantive, an appellant’s failure to
       comply with the established form of notice will not be fatal to his appeal. General Motors, 242
       Ill. 2d at 176, 950 N.E.2d at 1144. This notice effectively states the nature of the appeal, which
       is to reverse the final order disposing of James’s lawsuit, and it was sent to Empire’s attorneys
       (Brian A. O’Gallagher and Kristina M. Beck of Crema, Spina, Shaughnessy, Jansen & Siegert,
       LLC), who have also been representing SCR and Pace throughout the trial and appellate court
       proceedings. Counsel initially appeared in the appellate court only for SCR and Pace, but upon
       receiving James’s opening brief on appeal, also appeared for Empire and moved to dismiss
       Empire based on James’s notice of appeal. After this court denied the motion without
       prejudice, counsel prepared and timely filed substantive briefs for all three clients. Empire has
       never contended it was prejudiced by the notice of appeal, and we perceive no prejudice in the
       timely presentation of its defense to this appeal.




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¶ 35       For these two reasons, we conclude that the notice of appeal conveyed appellate
       jurisdiction as to the counts directed at Empire and we will review the merits of James’s appeal
       as to that defendant. Counts II, III, IV, and V were all directed in some part at Empire.
¶ 36       James contends that as the occupant of a vehicle insured by Empire, he is an “insured”
       within the meaning of its policy and that, as an “insured” and injured person, he has the right to
       file a declaratory judgment action addressing whether he is entitled to UIM coverage from
       Empire. He contends there is “a strong public policy against [UIM] step-downs” as well as a
       public policy to “provide protection to the insured” and that these are reasons to reform
       Empire’s UIM coverage to provide him with up to $1 million coverage. He contends “Empire
       [is] an innocent party” and proposes that with the judicial reformation of the insurance
       contract, “SCR must be forced to pay the additional (tiny) premium to Empire” that it would
       have paid to have the maximum UIM amount rather than the “stepped down” UIM amount.
¶ 37       Empire responds that James has no valid cause of action against the insurance company
       because his receipt of $50,000 from the other driver means he did not have an accident with an
       “underinsured motor vehicle” as that phrase is defined in the Empire policy and that there is no
       public policy justification for reforming the Empire policy.
¶ 38       In our opinion, Empire’s argument is the correct one. James does not dispute that SCR
       executed a form in late 2009 intentionally reducing SCR’s $1 million liability coverage to
       $50,000 for UIM and UM coverage. James’s second amended complaint included a copy of
       the form. Illinois law provides conditions and procedures that insurance companies and their
       applicants must follow in order to effectively reduce UIM coverage below certain minimums.
       See, e.g., Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 949 N.E.2d 639 (2011); DeGrand v.
       Motors Insurance Corp., 146 Ill. 2d 521, 588 N.E.2d 1074 (1992); and statutes cited therein.
       James does not challenge the contents of Empire’s UIM and UM selection form or the manner
       in which it was presented and executed by Empire and SCR.
¶ 39       His argument is strictly one of public policy. However, the power to declare a private
       contract invalid on public policy grounds is exercised sparingly and a person seeking to have
       an agreement invalidated on such grounds carries a “ ‘heavy burden.’ ” Phoenix, 242 Ill. 2d at
       55, 949 N.E.2d at 645. Agreements will be voided on public policy grounds only when they are
       clearly contrary to what the constitution, the statutes, or the decisions of the courts have
       declared to be the public policy or unless they are manifestly injurious to the public welfare.
       Schumann-Heink v. Folsom, 328 Ill. 321, 330, 159 N.E. 250, 254 (1927) (“Courts must act
       with care in extending those rules which say that a given contract is void because against
       public policy, since if there be one thing more than any other which public policy requires, it is
       that [persons] of full age and competent understanding shall have the utmost liberty of
       contract, and that their contracts, when entered into fairly and voluntarily, shall be held sacred
       and shall be enforced by the courts.”); Phoenix, 242 Ill. 2d at 55-56, 949 N.E.2d at 645 (“In
       relation to the judicial branch, the General Assembly, which speaks through the passage of
       legislation, occupies a ‘superior position’ in determining public policy,” and when the General
       Assembly has declared the public policy of the State, the judiciary remains silent and applies
       the law as written.); Groome v. Freyn Engineering Co., 374 Ill. 113, 124, 28 N.E.2d 274, 280
       (1940) (courts strictly adhere to the principle that public policy is found in the constitution, the
       laws, and precedent, rather than the varying opinions of judges, lawyers, and laymen).
¶ 40       James fails to cite any authority or any facts in support of his contention that there is “a
       strong public policy against [UIM] step-downs” when in fact a UIM step-down is provided for

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       by Illinois statute. He also fails to show that the particular UIM and UM selection form used
       here or the manner in which the form was presented and executed by Empire and SCR are
       grounds for invalidating the contract.
¶ 41       He contends the $50,000 UIM coverage is contrary to public policy because the “purpose
       of UIM in this situation is simple: to provide benefits to only two classes of people, and no one
       else: the handicapped passengers in the SCR/PACE vans and the van *** drivers. Whether the
       UIM was $1,000,000 or it was $50,000, PACE and SCR derive no benefit.” In our discussion
       above regarding Pace’s liability, we addressed James’s erroneous contention that only
       passengers and drivers benefit from UIM coverage.
¶ 42       Furthermore, James fails to acknowledge that (1) he is suing his employer’s automobile
       liability insurer and (2) the workers’ compensation system has been in place to provide speedy,
       no-fault coverage and is the exclusive form of employer-compensation for injured SCR van
       drivers such as him. Through that system he received temporary disability payments and a final
       lump settlement, which he stated was sufficient to address his injuries, and he also
       affirmatively stated that he would “not have the need for future medical expenses related to
       [his] injury.” James’s apparent dissatisfaction with the amount of compensation he accepted
       from the other driver and his own employer is not grounds for requiring his employer’s
       automobile liability insurer, Empire, to compensate him further. He has not met the heavy
       burden of showing that the UIM terms should be invalidated for public policy reasons. We
       affirm the dismissal of Empire.
¶ 43       For the above reasons, we hold that the circuit court’s rulings against James and in favor of
       SCR, Pace, and Empire were appropriate and we affirm those orders.

¶ 44      Affirmed.




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