                                           2016 IL App (1st) 140317



                                                                             SIXTH DIVISION
                                                                             June 30, 2016

     No. 1-14-0317


     DAWN RENEE GOLDSTEIN, Independent        )                Appeal from the Circuit Court
     Executor of the Estate of Gilbert Gail Gerth,
                                              )                of Cook County.
     Deceased,                                )
                                              )
            Plaintiff and                     )
            Counterdefendant-Appellant,       )                No. 12 CH 39151
                                              )
            v.                                )
                                              )                Honorable
     GRINNELL SELECT INSURANCE COMPANY, )                      Kathleen M. Pantle
     an Iowa Stock Fire and Casualty Company, )                Judge Presiding.
                                              )
            Defendant and                     )
            Counterplaintiff-Appellee.        )


            JUSTICE HALL delivered the judgment of the court, with opinion.
            Presiding Justice Rochford and Justice Delort concurred in the judgment and
     opinion.

                                                     OPINION



¶1          The plaintiff, Dawn Renee Goldstein, executor of the estate of Gilbert Gail Gerth,

        deceased, appeals from an order of the circuit court of Cook County denying her motion for

        summary judgment and granting summary judgment to the defendant, Grinnell Insurance
     No. 1-14-0317


        Company, on her complaint for declaratory judgment. On appeal, the plaintiff contends that:

        (1) an automobile liability policy excluding underinsured-motorist coverage for an owned

        vehicle is unenforceable under Illinois law; and (2) the policy exclusion does not apply

        because a riding lawnmower is not a motor vehicle. The plaintiff’s contentions present issues

        of first impression in Illinois.

¶2                                           BACKGROUND

¶3          The facts are not in dispute. Mr. Gerth was riding his Snapper lawnmower on 2300th

        Street in Effingham County, Illinois, when the riding lawnmower was rear-ended by a pickup

        truck operated by Gary Sachau, killing Mr. Gerth. At the time of the accident, Mr. Sachau

        was insured under an automobile insurance policy with liability limits of $30,000. Mr. Gerth

        was insured under an automobile insurance policy with The Hartford Insurance Company

        containing underinsured-motorist liability limits of $100,000 per person. He was also insured

        under an automobile insurance policy with the defendant containing single underinsured-

        motorist liability limits of $1 million per accident.

¶4          The plaintiff settled her claim against Mr. Sachau for $30,000 and her underinsurance

        claim with The Hartford for its policy limit of $100,000 minus a $30,000 credit for her

        settlement with Mr. Sachau. The defendant denied coverage under the following provision of

        the automobile liability policy it issued to Mr. Gerth:

                     “EXCLUSIONS
                     A. We do not provide Underinsured Motorists Coverage for ‘bodily injury’

                sustained:

                     1. By an ‘insured’ while ‘occupying’, or when struck by, any motor vehicle

                owned by that ‘insured’ which is not insured for this coverage under this policy. This

                includes a trailer of any type used with that vehicle.”
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¶5          On October 23, 2012, the plaintiff filed a complaint for declaratory judgment against the

        defendant. The plaintiff alleged that the policy exclusion for an owned vehicle was

        unenforceable in the context of underinsured-motorist coverage in Illinois and that a riding

        lawnmower was not a “motor vehicle” under the defendant’s policy, the underinsured

        motorist provisions of Illinois law and Illinois case law. The defendant filed an answer to the

        complaint and a counterclaim for declaratory judgment. 1

¶6          The parties filed motions for summary judgment on their respective complaints.

        Following a hearing on the motions, the circuit court denied the plaintiff’s motion for

        summary judgment on her complaint for declaratory judgment and granted summary

        judgment to the defendant on its counter-complaint for declaratory judgment. The court

        found that a riding lawnmower was a “motor vehicle” under the Illinois Vehicle Code (625

        ILCS 5/1-100 et seq. (West 2010)), which had been incorporated into the Illinois Insurance

        Code (215 ILCS 5/1 et seq. (West 2010)). See Roberts v. Country Mutual Insurance Co., 231

        Ill. App. 3d 713, 716-17 (1992). The court further found that the 1995 amendment of the

        Insurance Code permitting the owned-vehicle exclusion in uninsured-motorist coverage

        applied to underinsured-motorist coverage as well.

¶7          The plaintiff filed a notice of appeal from the circuit court’s order denying her motion for

        summary judgment and granting summary judgment to the defendant on its counter-

        complaint.

¶8                                                    ANALYSIS

¶9                                             I. Standards of Review


            1
             The record on appeal contains the plaintiff’s answer to the defendant’s counterclaim but does not contain
        the counterclaim. In its appellee’s brief, the defendant stated that it was preparing a supplemental record, which
        would contain a complete copy of its answer and counterclaim, but has not yet done so.

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¶ 10         The grant of summary judgment, the construction of an insurance policy and the

          construction of a statute are reviewed de novo. Majid v. Retirement Board of the Policemen’s

          Annuity & Benefit Fund, 2015 IL App (1st) 132182, ¶ 13; Mt. Hawley Insurance Co. v.

          Robinette Demolition, Inc., 2013 IL App (1st) 112847, ¶ 12.

¶ 11                                      II. Applicable Principles

¶ 12         “ ‘Summary judgment is proper if, and only if, the pleadings, depositions, admissions,

          affidavits and other relevant matters on file show that there is no genuine issue of material

          fact and that the movant is entitled to judgment as a matter of law.’ ” Mt. Hawley Insurance

          Co., 2013 IL App (1st) 112847, ¶ 14 (quoting Illinois Farmers Insurance Co. v. Hall, 363 Ill.

          App. 3d 989, 993 (2006)). Where, as in this case, the parties have filed cross-motions for

          summary judgment, the parties invite the court to determine the issues as a matter of law and

          enter judgment in favor of one of the parties. Mt. Hawley Insurance Co., 2013 IL App (1st)

          112847, ¶ 14.

¶ 13         The rules of construction applicable to contracts are also applicable to insurance policies.

          Mt. Hawley Insurance Co., 2013 IL App (1st) 112847, ¶ 15. Our primary objective is to

          ascertain and give effect to the parties’ intentions as expressed in the policy’s language. Mt.

          Hawley Insurance Co., 2013 IL App (1st) 112847, ¶ 15. We construe the policy as a whole

          giving effect to every provision; unambiguous words in the policy are to be given their plain,

          ordinary and popular meaning. Mt. Hawley Insurance Co., 2013 IL App (1st) 112847, ¶ 15.

¶ 14         “The cardinal rule of statutory construction is to determine and give effect to the

          legislature’s intent.” Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992).

          “[S]ections of the same statute should be considered to be in pari materia, and that each




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          section should be construed with every other part or section so as to produce a harmonious

          whole.” Sulser, 147 Ill. 2d at 555.

¶ 15                                             III. Discussion

¶ 16          “ ‘Parties to a contract may agree to any terms they choose unless their agreement is

          contrary to public policy.’ ” Allstate Property & Casualty Insurance Co. v. Trujillo, 2014 IL

          App (1st) 123419, ¶ 18 (quoting Sulser, 147 Ill. 2d at 559). Our supreme court has a long

          tradition of upholding the rights of parties to freely contract, and, therefore, a court must use

          the power to declare a private contract invalid on public policy grounds sparingly. Phoenix

          Insurance Co. v. Rosen, 242 Ill. 2d 48, 55 (2011). “An agreement will not be invalidated

          unless it is clearly contrary to what the constitution, the statutes, or the decisions of the courts

          have declared to be the public policy of Illinois or unless the agreement is ‘manifestly

          injurious to the public welfare.’ ” Phoenix Insurance Co., 242 Ill. 2d at 55 (quoting

          Progressive Universal Insurance Co. of Illinois v. Liberty Mutual Fire Insurance Co., 215 Ill.

          2d 121, 129-30 (2005)). The party seeking to invalidate an agreement as against public policy

          carries a “ ‘heavy burden’ of demonstrating a violation of public policy.’ ” Phoenix

          Insurance Co., 242 Ill. 2d at 55 (quoting Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d

          52, 65 (2006)). Our legislature occupies a superior position in determining public policy.

          Phoenix Insurance Co., 242 Ill. 2d at 55-56.

¶ 17                                     A. Owned Vehicle Exclusion

¶ 18          The plaintiff contends that the owned-vehicle exclusion in underinsured-motorist

          coverage is unenforceable under section 143a-2 of the Insurance Code (215 ILCS 5/143a-2

          (West 2010)). Prior to 1995, our courts held that the owned-vehicle exclusion in an

          automobile liability policy was unenforceable as to both uninsured- and underinsured-


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          motorist coverage. See Squire v. Economy Fire & Casualty Co., 69 Ill. 2d 167 (1977)

          (uninsured-motorist coverage); Hettenhausen v. Economy Fire & Casualty Co., 154 Ill. App.

          3d 488 (1987) (underinsured-motorist coverage).

¶ 19         In 1995, the legislature amended section 143a of the Insurance Code, as follows:

                 “Uninsured motor vehicle coverage does not apply to bodily injury, sickness, disease,

                 or death resulting therefrom, of an insured while occupying a motor vehicle owned

                 by, or furnished or available for the regular use of the insured, a resident spouse or

                 resident relative, if that motor vehicle is not described in the policy under which a

                 claim is made or is not a newly acquired or replacement motor vehicle covered under

                 the terms of the policy.” Pub. Act 89-206 (eff. July 21, 1995) (amending 215 ILCS

                 5/143a (West 1996)).

¶ 20         The plaintiff maintains that the owned-vehicle exclusion remains unenforceable in the

          context of underinsured-motorist coverage. The plaintiff argues that the legislature did not

          amend section 143a-2, as it did section 143a, to permit the owned-vehicle exclusion in the

          context of underinsured-motorist coverage. She further argues that the purpose of the

          underinsured-motorist statute differs from that of the uninsured-motorist statute and the

          application of the amendment would defeat the purpose of the underinsured-motorist

          coverage.

¶ 21         “The ‘principle purpose’ of the mandatory liability insurance requirement is ‘to protect

          the public by securing payment of their damages.’ ” Phoenix Insurance Co., 242 Ill. 2d at 57

          (quoting Progressive Universal Insurance Co. of Illinois, 215 Ill. 2d at 129). In furtherance

          of that purpose, uninsured-motorist coverage is required so that the policyholder is placed in

          substantially the same position he would occupy if he were injured or killed in an accident


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          where the party at fault carried the minimum liability coverage specified in section 203 of the

          Financial Responsibility Law. Phoenix Insurance Co., 242 Ill. 2d at 57; see 625 ILCS 5/7-

          203 (West 2010). From the legislative history, the supreme court concluded that the

          “legislative purpose of the underinsured-motorist coverage provision is the same as that of

          uninsured-motorist coverage, ‘i.e., to place the insured in the same position he would have

          occupied if the tortfeasor had carried adequate insurance.’ ” Phoenix Insurance Co., 242 Ill.

          2d at 57 (quoting Sulser, 147 Ill. 2d at 555). Relying on its prior opinion in Sulser, the court

          stated further as follows:

                  “The court [in Sulser] noted that ‘[u]ninsured and underinsured motorist policies

                  provide virtually the same coverage to the insured,’ and that by providing for

                  underinsured-motorist coverage in addition to uninsured-motorist coverage, ‘the

                  legislature avoided the absurdity of a situation where a policyholder would receive

                  fewer benefits in the fortuitous event of being injured by an underinsured rather than

                  an uninsured motorist.’ ” Phoenix Insurance Co., 242 Ill. 2d at 57-58 (quoting Sulser,

                  147 Ill. 2d at 557.

¶ 22          The plaintiff relies on Estate of Sinn v. Mid-Century Insurance Co., 288 Ill. App. 3d 193

          (1997). 2 In that case, the reviewing court determined that the public policies behind the

          uninsured-motorist statute and the underinsured-motorist statute were different. The court

          noted that the purpose of the uninsured-motorist statute was “to place the insured

          policyholder in substantially the same position he would occupy if the uninsured driver had

          been minimally insured.” (Emphasis in original.) Sinn, 288 Ill. App. 3d at 197 (citing

          Luechtefeld v. Allstate Insurance Co., 167 Ill. 2d 148, 152 (1995)). In contrast, the public

              2
                On October 1, 1997, the supreme court granted leave to appeal in Estate of Sinn, 174 Ill. 2d 559 (1997)
          (table). The petition was dismissed on January 7, 1998.

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          policy behind the underinsured-motorist statute was “to place the insured policyholder in the

          same position he would occupy if the underinsured driver had insurance in the same amount

          as the policyholder.” Sinn, 288 Ill. App. 3d at 197 (citing Sulser, 147 Ill. 2d at 558).

¶ 23         The plaintiff’s reliance on Sinn is misplaced. The legislature’s 1995 amendment of

          section 143a of the Insurance Code allowing insurers to exclude unnamed owned vehicles

          from uninsured-motorist coverage meant that the insured would no longer be placed in the

          same position as if the wrongdoer carried the minimum insurance coverage, i.e., the public

          policy considerations behind the uninsured-motorist statute. Since the legislature chose to

          override the public policy behind the uninsured-motorist statute as to this exclusion, there is

          no rational basis reaching a different result in the context of the underinsured-motorist statute

          on the ground that the public policies behind the two statutes differ.

¶ 24         In this case, had Mr. Sachau been uninsured, the owned-vehicle exclusion would have

          operated to deny uninsured-motorist coverage to Mr. Gerth. To permit the plaintiff to recover

          under the underinsured coverage in the policy in this case would be based solely on the

          fortuitous event that Mr. Sachau carried some insurance, rather than no insurance. As our

          supreme court stated, “by providing for underinsured-motorist coverage in addition to

          uninsured-motorist coverage, ‘the legislature avoided the absurdity of a situation where [the]

          policyholder would receive fewer benefits in the fortuitous event of being injured by an

          underinsured rather than by an uninsured driver.’ ” Phoenix Insurance Co., 242 Ill. 2d at 57-

          58 (quoting Sulzer, 147 Ill. 2d at 557); see Hall v. Burger, 277 Ill. App. 3d 757, 767 (1996)

          (“the [Sulser] court labeled ‘absurd’ any construction whereby claimant would receive

          greater or lesser benefits due to the ‘fortuitous event of being injured by an underinsured

          motorist rather than by an uninsured motorist’ ” (quoting Sulzer, 147 Ill. 2d at 557)).


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¶ 25         We also reject the plaintiff’s argument that the failure of the legislature to amend the

          underinsured-motorist statute as it did the uninsured-motorist statute supports her position. In

          the first instance, the plaintiff failed to support her argument with any authority and we

          would be justified in holding the argument forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,

          2013). Even if not forfeited, her argument fails.

¶ 26         Section 143a of the Insurance Code is captioned “Uninsured and hit and run motor

          vehicle coverage,” and section143a-2 of the Insurance Code is captioned “Additional

          uninsured motor vehicle coverage.” Under Illinois liability law, “uninsured-motorist[ ] and

          underinsured-motorist coverage are ‘inextricably linked.’ ” Phoenix Insurance Co., 242 Ill.

          2d at 58 (quoting Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 404 (2010)); see

          Sulser, 147 Ill. 2d at 554-55 (considering section 143a(4) (uninsured-motorist provision)

          together with section 143a-2(3) (underinsured-motorist provision)). Since underinsured

          motorist coverage is another form of uninsured motorist coverage, there is no rational basis

          for arriving at a different conclusion regarding the enforceability of the owned-vehicle

          exclusion in the context of underinsured-motorist coverage.

¶ 27         Guided by the above principles, we hold that the owned-vehicle exclusion for uninsured-

          motorist coverage in an automobile liability policy applies in the context of underinsured-

          motorist coverage.

¶ 28                                       II. Riding Lawnmower

¶ 29         The plaintiff contends that the riding lawnmower Mr. Gerth was riding at the time of the

          accident was not a “motor vehicle,” as contemplated by the underinsured-motorist statute.

          She maintains that it was not necessary to provide underinsured-motorist coverage since a

          riding lawnmower is not a “vehicle designed for use on public highways and required to be


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          registered in this State,” as required by section 143a-2(1). 215 ILCS 5/143a-2(1) (West

          2010). Contrary to the plaintiff’s argument, the result in this case does not depend on whether

          the riding lawnmower was required to carry underinsured-motorist coverage, but whether the

          riding lawnmower was a “motor vehicle,” as described under the policy exclusion for owned

          vehicles.

¶ 30         The cases the plaintiff relies on do not support her argument. Harrington v. American

          Family Mutual Insurance Co., 332 Ill. App. 3d 385 (2002), dealt with the reformation of an

          insurance policy. The fact that the insured in that case was injured while riding a bicycle,

          which the plaintiff argues is similar to a riding lawnmower, was not a factor in the court’s

          decision that the insurer was required to reform its policy to include underinsured-motorist

          coverage where it had failed to offer its insured underinsured-motorist coverage. Harrington,

          332 Ill. App. 3d at 392-93. In Rockford Mutual Insurance Co. v. Schuppner, 182 Ill. App. 3d

          898 (1989), the insurance policy defined the term “motor vehicle,” and the reviewing court

          found that the determination that the truck was a motor vehicle and not a farm implement

          was consistent with the insurance policy’s intended coverage. Schuppner, 182 Ill. App. 3d at

          906.

¶ 31          The plaintiff then maintains that a riding lawnmower is not a “motor vehicle” as defined

          in the Vehicle Code. Section 1-146 of the Vehicle Code defines “motor vehicle,” in pertinent

          part as follows:

                 “Every vehicle which is self-propelled and every vehicle which is propelled by

                 electric power obtained from overhead trolley wires, but not operated upon rails,

                 except for vehicles moved solely by human power, motorized wheelchairs, low-speed

                 electric bicycles, and low-speed gas bicycles.” 625 ILCS 5/1-146 (West 2010).


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          A “vehicle” is defined in pertinent part as:

                 “Every device, in, upon or by which any person or property is or may be

                 transported or drawn upon a highway or requiring a certificate of title under

                 Section 3-101(d) of this Code, except devices moved by human power, devices used

                 exclusively upon stationary rails or tracks and snowmobiles as defined in the

                 Snowmobile Registration and Safety Act [(625 ILCS 40/1-1 et seq. (West 2010)].”

          625 ILCS 5/1-217 (West 2010).

¶ 32         The plaintiff argues that the Vehicle Code’s definition of a motor vehicle does not apply

          to a riding lawnmower because a riding lawnmower is more akin to a low-speed electric

          bicycle, which is specifically excluded from the definition of a motor vehicle. She further

          argues that the Vehicle Code’s definition does not apply because the sections defining all-

          terrain vehicles and recreational off-highway vehicles specifically exclude lawnmowers as

          equipment. See 625 ILCS 5/1-101.8 (West 2010) (all-terrain vehicle); 625 ILCS 5/1-168.8

          (West 2010) (recreational vehicle).

¶ 33         The fact that the statutory definitions of all-terrain vehicles and recreational off-highway

          vehicles exclude lawnmowers as equipment does not support the plaintiff’s argument. Those

          definitions define specific types of vehicles and specify that a “lawnmower,” is not

          considered to be an all-terrain vehicle or a recreational vehicle. But, only “lawnmowers,” not

          “riding lawnmowers,” are excluded. Moreover, the general definition of motor vehicle does

          exclude from its definition specific types of vehicles that otherwise might be considered to be

          motor vehicles. Riding lawnmowers fit within the definition of vehicle and motor vehicle and

          are not among the exceptions listed in either definition. The fact that an electric bicycle may

          be similar to a riding lawnmower does not allow this court to add riding lawnmowers to the


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          exclusions set forth in sections 1-146 and 1-217 of the Vehicle Code. “Unless omitted

          through legislative oversight we are not permitted to add words to a statute that have not been

          included.” Thompson Electronics Co. v. Easter Owens/Integrated Systems, Inc., 301 Ill. App.

          3d 203, 207 (1998). The legislature could have excluded riding lawnmowers from the

          definition of both vehicle and motor vehicle but did not to do so. Thompson Electronics Co.,

          301 Ill. App. 3d at 207 (the court would not add bidding on a project to the licensing

          requirements in the statute where the legislature had the opportunity to but did not add it to

          the statute); see Roberts, 231 Ill. App. 3d at 717 (the legislature could have excluded an all-

          terrain vehicle if it was not to be considered a motor vehicle for purposes of the uninsured

          motorist statute).

¶ 34         The plaintiff directs our attention to the decision in Harris v. State, 686 S.E.2d 777 (Ga.

          2009), wherein the Georgia Supreme Court found that a riding lawnmower was not a motor

          vehicle under the Georgia motor vehicle theft statute. In the absence of a definition of motor

          vehicle, the court found the term was best defined by its ordinary meaning, rejecting the

          broader definitions contained in other statutes. Harris, 686 S.E.2d at 782-83. In contrast, the

          Vehicle Code’s definition of motor vehicle has been incorporated into the Insurance Code.

          Roberts, 231 Ill. App. 3d at 716-17.

¶ 35         Applying that definition, we find that a riding lawnmower is a motor vehicle. Therefore,

          Mr. Gerth was occupying an owned motor vehicle at the time of the accident resulting in his

          death.

¶ 36                                             CONCLUSION




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¶ 37         We hold that the owned-vehicle exclusion of underinsured-motorist coverage in an

          automobile liability insurance policy is enforceable. We further hold that a riding lawnmower

          is a motor vehicle under the Vehicle Code.

¶ 38         The judgment of the circuit court is affirmed.

¶ 39         Affirmed.




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