                                                                      FIRST DIVISION
                                                                      December 28, 2009




No. 1-09-0553


GERALD RYAN,                                                      )   Appeal from the
                                                                  )   Circuit Court of
                Plaintiff-Appellant,                              )   Cook County
                                                                  )
       v.                                                         )
                                                                  )   No. 07 CH 17255
STATE FARM MUTUAL AUTOMOBILE INSURANCE                            )
COMPANY,                                                          )   Honorable
                                                                  )   Dorothy K. Kinnaird,
                Defendant-Appellee.                               )   Judge Presiding.
                                                                  )

       JUSTICE LAMPKIN delivered the opinion of the court:

       In this dispute involving a vehicle collision and uninsured motorist coverage, the insured,

plaintiff Gerald Ryan, appeals the trial court’s grant of summary judgment in favor of his insurer,

defendant State Farm Mutual Automobile Insurance Company (State Farm). Plaintiff contends

he is entitled to coverage because the vehicle at issue was not furnished or available for his

regular use and, thus, not excluded from uninsured motorist coverage under his State Farm

insurance policy. For the reasons that follow, we affirm the judgment of the trial court.

                                        I. BACKGROUND

       The facts are not in dispute. In 2005, plaintiff, a Chicago police officer, was injured in a

collision with an uninsured motorist while operating a patrol car owned by plaintiff’s employer,

the City of Chicago. Plaintiff never drove this particular patrol car either before or after the

collision. He was randomly assigned a patrol car from a pool of 20 to 25 vehicles when he began
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his work shift.

       Plaintiff made a claim under the uninsured motor vehicle coverage of his State Farm

policy on a vehicle he owned. State Farm denied his claim, and this declaratory judgment action

was filed, seeking a judicial determination of the parties’ rights under the terms of the State Farm

policy. The parties filed cross motions for summary judgment, and the trial court heard oral

argument.

       The trial court ruled that plaintiff was not entitled to uninsured motorist coverage because

the vehicle he was operating on the day of the collision was “furnished or available for his

regular use,” within the meaning of the coverage exclusion of his State Farm policy.

Accordingly, the trial court granted summary judgment for State Farm and denied summary

judgment for plaintiff. Plaintiff appealed.

                                          II. ANALYSIS

       We review a grant of summary judgment by the trial court de novo. Jewelers Mutual

Insurance Co. v. Firstar Bank Illinois, 213 Ill. 2d 58, 62 (2004). Summary judgment can only be

entered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2006); Prairie v. University of

Chicago Hospitals, 298 Ill. App. 3d 316, 319 (1998). Summary judgment is a drastic means of

disposing of litigation and should only be allowed when the right of the moving party is clear and

free from doubt. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 271 (1992).




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       Plaintiff’s State Farm policy contains the following exclusion for uninsured motor vehicle

coverage:

               “THERE IS NO COVERAGE UNDER COVERAGES U AND U1 FOR

       BODILY INJURY TO AN INSURED WHILE OCCUPYING A MOTOR

       VEHICLE OWNED BY, LEASED TO, OR FURNISHED OR AVAILABLE

       FOR THE REGULAR USE OF YOU, YOUR SPOUSE OR ANY RELATIVE IF

       IT IS NOT INSURED FOR THIS COVERAGE UNDER THIS POLICY.”

Coverages U and U1 are the uninsured motor vehicle coverages. This policy exclusion conforms

to the statutory exclusion set forth in section 5/143a(1) of the Illinois Insurance Code (215 ILCS

5/143a(1) (West 2006)) concerning uninsured and hit and run motor vehicle coverage, which was

added by amendment in 1995 (Pub. Act 89-206, §5, eff. July 21, 1995).

       Plaintiff contends the patrol car in which he was injured was not a vehicle furnished or

available for his regular use within the meaning of the regular use exclusion of his State Farm

automobile policy. Plaintiff states that he used the vehicle at issue only once, on the day of the

collision, so it was not available for his regular–i.e., customary, usual or normal–use. Plaintiff

argues that where he was not regularly assigned to use the vehicle at issue and never operated it

either before or after the date of the collision, those facts did not bring him within the regular use

exclusion of his State Farm policy. He also argues that the regular use exclusion does not

expressly reference a pool of vehicles, and the trial court erroneously stretched that exclusion to

include vehicle pools.




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       Because insurance policies are contracts, they must be construed according to the rules of

contract construction. Pekin Insurance Co. v. Willett, 301 Ill. App. 3d 1034, 1037 (1998). The

construction of an insurance policy is a question of law and, thus, subject to de novo review.

Pekin Insurance Co., 301 Ill. App. 3d at 1037. When construing the language of an insurance

policy, courts must ascertain and give effect to the intention of the parties as expressed in their

agreement. Pekin Insurance Co., 301 Ill. App. 3d at 1037. Thus, policy terms are given their

plain and ordinary meaning and are applied as written unless such application contravenes public

policy. Pekin Insurance Co., 301 Ill. App. 3d at 1037. Furthermore, the rule that exclusions are

liberally construed in favor of the insured and strictly against the insurer applies only where the

language used is ambiguous. Pekin Insurance Co., 301 Ill. App. 3d at 1037; Sypien v. State Farm

Mutual Automobile Insurance Co., 111 Ill. App. 3d 19, 21 (1982).

       The language of the regular use exclusion is clear and unambiguous and does not

contravene public policy. Plaintiff correctly notes that he did not regularly use the particular

vehicle in question. However, the plain language of the exclusion does not deny uninsured

motorist coverage for the vehicles plaintiff merely regularly used; it denies such coverage for

those vehicles furnished or available for his regular use. Plaintiff misreads the exclusion; it does

not depend on actual use, but on availability. The vehicle at issue was one of the pool of patrol

cars plaintiff’s employer made available to him. The fact that plaintiff never previously drove

the vehicle at issue is immaterial. It was part of the pool of vehicles furnished or available to him

for his regular use while on duty as a patrol officer. See Voelker v. The Travelers Indemnity Co.,

260 F.2d 275, 278 (7th Cir. 1958) (the length of time a National Guard sergeant drove a


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particular military truck was irrelevant; it was excluded from his private auto insurance coverage

because it was furnished for his regular use).

        Applying the plain and ordinary meaning of the regular use exclusion, it is clear that its

purpose is to cover the insured’s infrequent or merely casual use of an automobile other than the

one described in his policy without the payment of an additional premium; however, it does not

cover the insured for his use of other automobiles that are furnished for his regular use or that he

has the opportunity to use on a regular basis. Voelker, 260 F.2d at 278. The daily or frequent

use of a police patrol car, often in risky driving situations, substantially increases the risk of an

accident. Therefore, it is unreasonable to conclude that plaintiff’s State Farm policy, which

covered his private automobile for a certain premium, contemplated extending coverage to him

for any patrol car he drove while on duty without any additional premium for such coverage and

despite the insurer’s greatly increased risk. Such an interpretation violates the purpose of the

exclusion by significantly increasing the risk to State Farm without any corresponding increase in

premiums.

        Plaintiff’s complaint that the regular use exclusion does not expressly reference a pool or

fleet of vehicles is irrelevant. There is no need for such a reference because the clear and

unambiguous language of the exclusion encompassed the vehicle at issue under these facts

regardless of whether it was his employer’s sole vehicle or part of a pool. Illinois courts have not

had occasion to address plaintiff’s assertion that a randomly assigned vehicle from a pool is not

subject to the regular use exclusion. However, cases involving similar fact situations and policy

language have been addressed by a number of other jurisdictions, which have held that a vehicle


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is available for the insured’s regular use if it is one of a pool of vehicles and the insured regularly

uses vehicles from that pool. See, e.g., Peyton v. Bseis, 680 So.2d 81, 84 (La. Ct. App. 1996);

Drollinger v. Safeco Insurance Co. of America, 797 P.2d 540, 543 (Wash. Ct. App. 1990);

Galvin v. Amica Mutual Insurance Co., 417 N.E.2d 34, 36 (Mass. App. Ct. 1981); Bringle v.

Economy Fire & Casualty Co., 169 N.W.2d 879, 883 (Iowa 1969); Moore v. State Farm Mutual

Automobile Insurance Co., 121 So.2d 125, 135 (Miss. 1960). Because the facts and exclusions

are so similar, we find the reasoning in those cases persuasive, and our holding in this case is in

accord with those jurisdictions.

       Plaintiff contends that the ordinary person would not understand that a vehicle randomly

assigned from a vehicle pool falls within the policy exclusion and cites Gillen v. State Farm

Mutual Automobile Insurance Co., 215 Ill. 2d 381 (2005), for the proposition that an insurance

policy should be construed according to the understanding of the average insured. Plaintiff’s

reliance on Gillen, however, is unavailing because that case is inapposite to the issue before us.

The Gillen court addressed whether the insurer could offset from its uninsured motorist coverage

the amount that the city paid to the insured, an injured paramedic, for medical bills pursuant to a

pension code. The court concluded that the language of the setoff clause was not clear, definite

and specific and, thus, construed the ambiguity in favor of the insured. Gillen, 215 Ill. 2d at 395.

Here, in contrast, State Farm’s regular use exclusion was not ambiguous. Moreover, the facts in

Gillen are readily distinguishable from the facts at issue here. In Gillen, the paramedic was

entitled to uninsured motorist coverage where he was struck at the scene of an emergency and

was not occupying a vehicle when he was injured. Here, in contrast, plaintiff was not a


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pedestrian; he was occupying the patrol car in question.

        Finally, we reject plaintiff’s argument that denying him coverage under the regular use

exclusion is contrary to our legislature’s intent because it leaves an insured with less coverage

than if the uninsured driver had the statutory minimum coverage. State Farm’s regular use

exclusion is not contrary to public policy where it conforms to the language of the statutory

regular use exclusion enacted by our General Assembly. 215 ILCS 5/143a(1) (West 2006). As

discussed above, it is not contrary to public policy to exempt insurers from covering substantial

risks for which they have not collected a premium.

        Accordingly, we find that the trial court correctly held that the patrol car occupied by

plaintiff at the time of the accident was furnished or available for his regular use, within the

meaning of his policy’s uninsured motorist coverage exclusion.

                                        III. CONCLUSION

        The trial court’s order granting summary judgment for State Farm and denying summary

for plaintiff is affirmed.

        Affirmed.

        GARCIA and PATTI, JJ., concur.




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               REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT




                                      GERALD RYAN,

                                      Plaintiff-A ppe llant,

                                               v.

            ST AT E FAR M M UT UA L AU TO MO BILE INS UR AN CE CO MP AN Y,

                                    De fendan t-Appellee.




                                      No. 1-09-0553

                                  Ap pellate Co urt of Illinois
                               First District, FIRST DIVISION

                                     Decem ber 28, 2009


              Jus tice Bertina E. La m pkin auth ored the opinion of the cou rt:

                          Justice Ga rcia and Justice Patti concur.


                       Ap peal from the Circuit Court of Cook C ounty.
                      The Hon. Dorothy K. Kinnaird, Judge Presiding.


                           COUNSEL FOR APPELLANT
                     Gordon & Centracchio, LLC, Chicago, IL 60606
                    OF CO UNSEL: Joseph G. Ryan and Beth Schillen


                               COUN SEL FOR APPELLEE
                            Taylor Miller LLC, Chicago, IL 60602
                              OF CO UNSEL: John R. Adams




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