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                                       Supreme Court                                Date: 2018.08.21
                                                                                    13:33:31 -05'00'




           Thounsavath v. State Farm Mutual Automobile Insurance Co., 2018 IL 122558




Caption in Supreme        PHOUNGEUN THOUNSAVATH, Appellee, v. STATE FARM
Court:                    MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.



Docket No.                122558



Filed                     March 22, 2018



Decision Under            Appeal from the Appellate Court for the First District; heard in that
Review                    court on appeal from the Circuit Court of Cook County, the Hon.
                          Kathleen M. Pantle, Judge, presiding.



Judgment                  Appellate court judgment affirmed.


Counsel on                Frank C. Stevens, of Taylor Miller LLC, of Chicago, for appellant.
Appeal
                          Eric J. Parker, of Stotis & Baird Chtrd., of Chicago, for appellee.



Justices                  JUSTICE THOMAS delivered the judgment of the court, with
                          opinion.
                          Chief Justice Karmeier and Justices Freeman, Kilbride, Garman,
                          Burke, and Theis concurred in the judgment and opinion.
                                             OPINION

¶1       Plaintiff Phoungeun Thounsavath sought underinsured motorist coverage from defendant,
     State Farm Mutual Automobile Insurance Company (State Farm), stemming from an
     automobile accident that occurred while she was a passenger in a vehicle driven by Clinton
     Evans. State Farm denied plaintiff’s claim for underinsured motorist coverage based upon a
     driver exclusion endorsement in plaintiff’s automobile liability insurance policies with State
     Farm. The driver exclusion endorsement named Clinton Evans as an excluded driver.
¶2       Both parties filed complaints for declaratory judgment. On cross-motions for summary
     judgment, the trial court granted summary judgment in favor of plaintiff. The appellate court
     affirmed. 2017 IL App (1st) 161334. This court allowed State Farm’s petition for leave to
     appeal. Ill. S. Ct. R. 315 (eff. July 1, 2017).

¶3                                        BACKGROUND
¶4       State Farm issued two policies of motor vehicle insurance to plaintiff. One policy insured a
     1998 Pontiac Grand Am, and one policy insured a 2004 Pontiac GTO. Each policy provided
     liability, uninsured motorist, and underinsured motorist coverage in the amounts of $100,000
     per person and $300,000 per accident. Both policies contained a “Driver Exclusion
     Endorsement” that excluded Clinton M. Evans. Driver exclusion endorsements are also
     referred to as named driver exclusions. Specifically, the driver exclusion endorsement
     provided:
              “IT IS AGREED WE SHALL NOT BE LIABLE AND NO LIABILITY OR
              OBLIGATION OF ANY KIND SHALL ATTACH TO US FOR BODILY INJURY,
              LOSS OR DAMAGE UNDER ANY OF THE COVERAGES OF THIS POLICY
              WHILE ANY MOTOR VEHICLE IS OPERATED BY: CLINTON M. EVANS.”
              (Emphases in original.)
¶5       On June 17, 2012, plaintiff was a passenger in a 2007 Hyundai automobile that was owned
     and operated by Clinton Evans when Evans’s vehicle was involved in an accident with another
     automobile. Plaintiff was injured in the accident. Plaintiff made a claim for damages against
     Clinton Evans for her personal injuries. Evans’s insurer, American Access Insurance
     Company, paid plaintiff’s claim in the amount of $20,000, the policy limit. Plaintiff then filed
     a claim for underinsured motorist coverage with State Farm for the June 17, 2012, accident.
     State Farm denied plaintiff’s claim based upon the driver exclusion endorsement.
¶6       Plaintiff subsequently filed a complaint for declaratory judgment in the circuit court of
     Cook County, seeking a declaration that she was entitled to underinsured motorist coverage
     under her State Farm policies. Plaintiff alleged that she purchased automobile insurance
     policies from State Farm that included underinsured motor vehicle coverage for bodily injury.
     Plaintiff noted that she was involved in a motor vehicle accident while a passenger in a vehicle
     owned by Clinton Evans and sustained over $30,000 in medical bills related to the accident.
     Clinton Evans was at fault for the accident, and his insurer tendered the full policy limits of
     $20,000 to plaintiff. Plaintiff then sought to recover pursuant to the underinsured motorist
     coverage of her State Farm policies, but State Farm denied the claim, citing the named driver
     exclusion stating that Clinton Evans was an excluded driver. Plaintiff asserted that section
     143a-2 of the Illinois Insurance Code (215 ILCS 5/143a-2 (West 2012)) required all policies of

                                                -2-
       insurance to provide underinsured motorist coverage to the named insured, so that State
       Farm’s denial of plaintiff’s underinsured motorist coverage violated the statute, as well as
       Illinois public policy. Plaintiff therefore sought a declaration that State Farm must provide her
       with underinsured motorist coverage under her State Farm policies.
¶7          State Farm filed an answer to plaintiff’s complaint for declaratory judgment, denying that
       section 143a-2 of the Insurance Code required all policies of insurance to provide underinsured
       motorist coverage to the named insured. State Farm also filed a counterclaim for declaratory
       judgment, noting that it had issued two policies of automobile insurance to plaintiff. Both
       policies contained a driver exclusion endorsement, signed by plaintiff, which excluded
       coverage for bodily injury, loss, or damage under the policies while any motor vehicle is
       operated by Clinton Evans. State Farm denied that either of plaintiff’s automobile insurance
       policies provided underinsured motorist coverage for the June 17, 2012, accident because all
       coverages were excluded while Clinton Evans operated any motor vehicle. State Farm sought a
       declaratory judgment in its favor declaring that there was no underinsured motorist coverage
       available to plaintiff under either policy for the June 17, 2012, accident, that State Farm had no
       duty to arbitrate any claim for underinsured motorist coverage made by plaintiff under either
       policy, and that there was no coverage of any kind available to plaintiff under either policy for
       the accident of June 17, 2012.
¶8          The circuit court ordered both parties to file cross-motions for summary judgment. State
       Farm filed a motion for summary judgment, arguing that the driver exclusion endorsement in
       both automobile policies issued to plaintiff did not violate the Insurance Code or the public
       policy of the state of Illinois. The circuit court denied State Farm’s motion for summary
       judgment. Plaintiff then filed her motion for summary judgment, which the circuit court
       granted.
¶9          State Farm appealed, arguing that its driver exclusion endorsement did not violate section
       143a-2 of the Insurance Code or Illinois public policy. The appellate court affirmed the circuit
       court. 2017 IL App (1st) 161334.
¶ 10        The appellate court noted that, under section 7-601(a) of the Illinois Safety and Family
       Financial Responsibility Law (Financial Responsibility Law) (625 ILCS 5/7-601(a) (West
       2012)), a part of the Illinois Vehicle Code (Vehicle Code), no one may operate a motor vehicle
       or allow a vehicle to be operated without obtaining sufficient insurance. 2017 IL App (1st)
       161334, ¶ 16. In addition, sections 143a and 143a-2 of the Insurance Code (215 ILCS 5/143a,
       143a-2 (West 2012)) require automobile liability insurance policies to include uninsured and
       underinsured motorist coverage. 2017 IL App (1st) 161334, ¶ 17. The appellate court
       acknowledged that, in general, named driver exclusions in automobile liability insurance
       policies are permitted in Illinois. Id. ¶ 22. However, the cases cited by State Farm in support of
       its named driver exclusion were distinguishable, as the named driver exclusions in those cases
       were enforced as to parties other than the named insured. Id. ¶ 23.
¶ 11        The appellate court stated that the issue in this case was whether the named driver
       exclusion violated Illinois’s mandatory insurance requirements and public policy where the
       exclusion barred coverage for the named insured. Although none of the cases cited by either
       party addressed that precise issue, the appellate court found the analysis in American Access
       Casualty Co. v. Reyes, 2013 IL 115601, to be instructive.



                                                   -3-
¶ 12       The issue in Reyes was whether an automobile liability policy could exclude the only
       named insured and owner of the vehicle without violating public policy. Reyes noted that the
       plain and unambiguous language of section 7-317(b)(2) of the Vehicle Code (625 ILCS
       5/7-317(b)(2) (West 2010)) mandated that an automobile liability policy cover the “person
       named therein.” Reyes, 2013 IL 115601, ¶ 11. Because Reyes was the only person “named
       therein,” Reyes could not be excluded from coverage through a contractual provision. Id.
¶ 13       Similar to Reyes, the appellate court held that a named driver exclusion in an insured’s
       automobile liability insurance policy that bars liability, uninsured, or underinsured coverage
       for the named insured violates Illinois’s mandatory insurance requirements and Illinois public
       policy. 2017 IL App (1st) 161334, ¶ 34. Accordingly, the appellate court held that the named
       driver exclusion endorsements in plaintiff’s automobile liability policies with State Farm were
       not enforceable against plaintiff, the named insured.

¶ 14                                             ANALYSIS
¶ 15       As noted, this case was decided based upon the parties’ motions for summary judgment.
       Summary judgment motions are governed by section 2-1005 of the Code of Civil Procedure
       (735 ILCS 5/2-1005 (West 2012)). Pursuant to section 2-1005, summary judgment should be
       granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed
       in the light most favorable to the nonmoving party, show that there is no genuine issue of
       material fact and that the moving party is entitled to judgment as a matter of law. Id. The
       construction of the terms of an insurance policy and whether the insurance policy comports
       with statutory requirements present questions of law that are properly decided on a motion for
       summary judgment. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399 (2010).
¶ 16       The granting of a summary judgment motion is subject to de novo review. Id. at 399-400.
       In addition, the determination of whether a provision in a contract, insurance policy, or other
       agreement is invalid because it violates public policy also presents a question of law, which is
       reviewed de novo. Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 54 (2011).
¶ 17       An insurance policy is a contract, so the rules applicable to contract interpretation govern
       the interpretation of an insurance policy. Founders Insurance Co. v. Munoz, 237 Ill. 2d 424,
       433 (2010). A court’s primary function is to ascertain and give effect to the intention of the
       parties, as expressed in the policy language. Id. If the insurance policy terms are clear and
       unambiguous, they must be enforced as written, unless doing so would violate public policy.
       Schultz, 237 Ill. 2d at 400. The public policy of this state is reflected in its constitution, statutes,
       and judicial decisions. Id. If the terms of an insurance contract conflict with a statute, those
       terms are void and unenforceable. Id. Terms of an insurance policy also cannot circumvent the
       underlying purpose of a statute in force at the time the policy is issued. Id.
¶ 18       With some exceptions not at issue in this case, section 7-601(a) of the Financial
       Responsibility Law requires liability insurance coverage for all motor vehicles designed to be
       used on a public highway. 625 ILCS 5/7-601(a) (West 2012). The liability insurance policy
       must provide certain minimum liability amounts. Those amounts, both currently and at the
       time of the accident at issue in this case, are $20,000 for bodily injury or death to one person as
       a result of any one accident, $40,000 for bodily injury or death of all persons as a result of any
       one accident, and $15,000 for damage to the property of others as the result of any one
       accident. See id. §§ 7-203, 7-317(b)(3). The liability insurance policy must also comply with


                                                      -4-
       specific coverage requirements, insuring not only the persons named in the policy but also
       “any other person using or responsible for the use” of the subject vehicle with the express or
       implied permission of the insured. Id. § 7-317(b)(2). The main purpose of the mandatory
       liability insurance requirement is to protect the public by securing payment of their damages.
       Reyes, 2013 IL 115601, ¶ 8.
¶ 19       In addition to motor vehicle liability insurance coverage, the Insurance Code requires
       automobile liability insurance policies to also include uninsured motorist coverage. 215 ILCS
       5/143a (West 2012). If the limits for the insured’s liability coverage exceed the minimum
       amounts required by law, the uninsured motorist provisions must provide the same higher
       coverage amounts unless the excess amount is specifically rejected by the insured. Id.
       § 143a-2(1). The uninsured motorist coverage must extend to all who are insured under the
       policy’s liability provisions. Schultz, 237 Ill. 2d at 403.
¶ 20       If the insured’s uninsured motorist coverage limit exceeds the minimum liability limit
       required by the Financial Responsibility Law, the policy must also include underinsured
       motorist coverage in an amount equal to the uninsured motorist coverage. 215 ILCS
       5/143a-2(4) (West 2012). As with uninsured motorist coverage, the underinsured motorist
       coverage must extend to all those who are insured under the policy’s liability provisions.
       Schultz, 237 Ill. 2d at 401. In contrast to the uninsured motorist provision, the underinsured
       motorist provision does not include a right of rejection.
¶ 21       As noted, in this case plaintiff was injured in an automobile accident while a passenger in
       Clinton Evans’s automobile. Plaintiff sought to recover underinsured motorist benefits
       pursuant to her automobile liability policies with State Farm because the policy limits in
       Clinton Evans’s automobile liability insurance policy were not sufficient to compensate
       plaintiff for her injuries. As in the lower courts, State Farm claims that plaintiff is not entitled
       to recover under her policies because Clinton Evans was excluded from coverage under the
       driver exclusion endorsement in plaintiff’s policies. State Farm argues that named driver
       exclusions are permitted in Illinois and that plaintiff knew when she signed the driver
       exclusion endorsements in her policies that State Farm would not pay any liability of any kind,
       under any coverage, when Clinton Evans operated any automobile. Accordingly, State Farm
       maintains that plaintiff is not entitled to recover underinsured benefits under her policies with
       State Farm.
¶ 22       State Farm is correct that, in general, named driver exclusions are permitted in Illinois.
       Reyes, 2013 IL 115601, ¶ 15. We also agree with State Farm that it was entitled to identify
       Clinton Evans as an individual for whom it would not provide insurance coverage. However,
       Clinton Evans is not seeking insurance coverage from State Farm under plaintiff’s policies. It
       is plaintiff who is attempting to collect under her policies with State Farm.
¶ 23       In finding that the exclusion in this case was unenforceable against plaintiff, the appellate
       court found the Reyes decision to be instructive. State Farm distinguishes this case from Reyes
       on the basis that the exclusion in Reyes was directed at the sole named insured and owner, an
       exclusion which conflicted with the plain language of section 7-317(b)(2) of the Financial
       Responsibility Law. In contrast to Reyes, plaintiff in this case, the sole named insured and
       owner, was not excluded from liability coverage for her operation of any vehicle. State Farm
       also notes that Reyes dealt only with liability coverage, while plaintiff’s claim here is for
       underinsured motorist coverage. Finally, State Farm observes that Reyes did not hold that a


                                                    -5-
       named driver exclusion per se violates the Financial Responsibility Law. Accordingly, State
       Farm argues that the appellate court erred in relying on Reyes to find the driver exclusion
       endorsement in this case unenforceable.
¶ 24       State Farm’s focus in distinguishing Reyes is misplaced. The appellate court discussed
       Reyes because it found the analysis in Reyes instructive. That analysis addressed whether an
       exclusion directed to a mandatory statutory provision was enforceable. Whether an exclusion
       directed to a mandatory statutory provision is enforceable is also at issue in this case, albeit in
       the context of underinsured motorist coverage rather than liability coverage.
¶ 25       The main purpose of the mandatory liability insurance requirement is “to protect the public
       by securing payment of their damages.” Progressive Universal Insurance Co. of Illinois v.
       Liberty Mutual Fire Insurance Co., 215 Ill. 2d 121, 129 (2005). To further that end, the
       legislature requires uninsured motorist coverage to place the policyholder in substantially the
       same position he would occupy if the tortfeasor had the minimum liability insurance required
       by the Financial Responsibility Law. Rosen, 242 Ill. 2d at 57. Thus, while mandatory liability
       insurance attempts to ensure that all drivers carry at least $20,000 of bodily injury coverage,
       mandatory uninsured motorist coverage protects a driver who has complied with the liability
       coverage requirement when she is injured by a driver who has not. Id. at 68. Moreover, the
       legislative purpose of underinsured motorist coverage is the same as that of uninsured motorist
       coverage, which is “ ‘to place the insured in the same position he would have occupied if the
       tortfeasor had carried adequate insurance.’ ” Id. at 57 (quoting Sulser v. Country Mutual
       Insurance Co., 147 Ill. 2d 548, 555 (1992)). If the tortfeasor is insured, but for an amount less
       than the claimant has bargained for and paid for with her own insurer, mandatory underinsured
       motorist coverage in an amount equal to her uninsured motorist coverage ensures that the
       claimant will still be compensated up to the limits of her own uninsured motorist policy. Id. at
       69.
¶ 26       Therefore, under Illinois law, liability, uninsured motorist, and underinsured motorist
       coverage are “ ‘inextricably linked.’ ” Id. at 58 (quoting Schultz, 237 Ill. 2d at 404). Liability,
       uninsured motorist, and underinsured motorist coverages all “serve the same underlying public
       policy: ensuring adequate compensation for damages and injuries sustained in motor vehicle
       accidents.” Id.
¶ 27       The court in State Farm Mutual Automobile Insurance Co. v. Villicana, 181 Ill. 2d 436,
       444-45 (1998), recognized that “[b]oth the underinsured and uninsured motor vehicle
       provisions contemplate that consumers will select the total ‘package’ of coverage, i.e.,
       liability, uninsured and underinsured, in amounts they themselves deem adequate for their own
       protection.” (Emphasis in original.) Thus, underinsured motorist coverage protects the insured
       from the risk that a negligent driver of another vehicle “(i) will cause injury to the insured ***
       and (ii) will have inadequate liability coverage to compensate the injuries caused by his or her
       negligence.” Id. at 445. Underinsured motorist coverage guarantees the protection of an
       injured insured against the possibility that a tortfeasor, over whom the insured has no control,
       purchases inadequate amounts of liability coverage. Id.
¶ 28       That is exactly the situation in the instant case. Plaintiff purchased liability, uninsured
       motorist, and underinsured motorist coverage in an amount she deemed adequate for her own
       protection. Plaintiff had no control over the amount of liability insurance coverage that Clinton
       Evans purchased for his own vehicle. The liability insurance coverage that Clinton Evans


                                                    -6-
       purchased for his own vehicle was inadequate, so plaintiff sought the protection of the
       underinsured motorist coverage that she purchased from State Farm.
¶ 29       State Farm argues, however, that because plaintiff signed the driver exclusion endorsement
       naming Clinton Evans, plaintiff was precluded from recovering underinsured motorist
       coverage for an accident where Clinton Evans was the tortfeasor. State Farm claims that
       plaintiff was free to make her own contract with State Farm and chose to sign a contract with a
       driver exclusion endorsement naming Clinton Evans. State Farm also argues that plaintiff did
       have control over Evans and his decision to purchase minimal liability coverage because
       plaintiff had control over her choice to ride as a passenger in Evans’s vehicle or in any vehicle
       operated by Evans.
¶ 30       An insurance policy is a contract, but the terms of an insurance contract must comport with
       the statutory requirements in effect when the policy is issued. Schultz, 237 Ill. 2d at 408.
       Insurers have no right to depart from valid statutory requirements in their policies. Id.
       Therefore, the fact that plaintiff signed the driver exclusion endorsement is not dispositive. We
       must determine whether that exclusion is consistent with the relevant statutes and underlying
       purpose of the statutes.
¶ 31       Neither the statute nor the case law places any restriction on the right of the parties to an
       insurance contract to agree on which persons are to be the “insureds” under an automobile
       insurance policy. Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389, 395 (1974).
       However, once a person qualifies as an insured for purposes of the policy’s bodily injury
       liability provisions, she must be treated as an insured for purposes of uninsured and
       underinsured motorist coverage as well. Schultz, 237 Ill. 2d at 404. Consequently, just as the
       governing statutes prohibit an insurance company from directly or indirectly denying
       uninsured motorist coverage to someone who qualifies as an insured for purposes of liability
       coverage, the statutes prohibit companies from directly or indirectly denying underinsured
       coverage to such a person when the basic liability coverage exceeds the statutory minimum. Id.
¶ 32       In this case, State Farm and plaintiff agreed that Clinton Evans was not an “insured” under
       plaintiff’s automobile liability insurance policies. However, the parties agreed that plaintiff
       was an insured. Once plaintiff was designated an “insured” under her policies with State Farm,
       then, State Farm was prohibited from either directly or indirectly denying her underinsured
       motorist coverage.
¶ 33       Section 143a of the Insurance Code is plain and unambiguous in mandating that each
       policy must contain the specified uninsured motorist coverage. Squire v. Economy Fire &
       Casualty Co., 69 Ill. 2d 167, 176 (1977). Squire recognized that the public policy of this state
       concerning uninsured motorist coverage is that no automobile liability insurance policy shall
       be issued unless coverage is provided therein against damages caused by uninsured motorists.
       Id. The “statutory coverage is mandatory, and it may not be whittled away by an unduly
       restrictive definition.” (Internal quotation marks omitted.) Barnes v. Powell, 49 Ill. 2d 449, 453
       (1971). In addition, section 143a-2 of the Insurance Code is plain and unambiguous in
       mandating that where uninsured motorist coverage in a policy exceeds the limits set forth in
       section 7-203 of the Financial Responsibility Law (625 ILCS 5/7-203 (West 2012)), each
       policy must include underinsured motorist coverage in an amount equal to the total amount of
       uninsured motorist coverage. 215 ILCS 5/143a-2(4) (West 2012).



                                                   -7-
¶ 34       In this case, plaintiff and State Farm contracted for liability insurance in the amounts of
       $100,000 per person and $300,000 per accident, which exceeded the minimum statutory limits.
       Pursuant to section 143a of the Insurance Code, State Farm was required to include uninsured
       motorist coverage in those amounts in plaintiff’s policies unless plaintiff specifically rejected
       the higher coverage amounts. Plaintiff did not reject the higher coverage amounts.
       Accordingly, section 143a-2 required plaintiff’s policies to also include underinsured motorist
       coverage in amounts equal to her uninsured motorist coverage. The uninsured and
       underinsured amounts are mandated by statute.
¶ 35       Because the underinsured motorist coverage was mandated by statute, State Farm’s driver
       exclusion endorsement could not exclude that coverage through a contractual provision. Under
       the facts of this case, application of the driver exclusion to bar plaintiff, the named insured,
       from recovering underinsured motorist coverage pursuant to her policies with State Farm
       violates section 143a-2(4) and, therefore, public policy.
¶ 36       In so holding, we note that the cases cited by State Farm in support of its position are
       distinguishable from the instant case. For example, in Phelan, 59 Ill. 2d 389, the court held that
       the excluded driver was not an insured under his father’s policy, so that the excluded driver
       could not collect uninsured motorist coverage pursuant to that policy. Phelan would be
       controlling if it was Evans, the excluded driver, seeking to recover under plaintiff’s policies
       with State Farm. Phelan, however, is inapposite under the facts of this case. Here, it is the
       named insured, and not the excluded driver, who is seeking underinsured motorist coverage.
¶ 37       State Farm also relies on Rockford Mutual Insurance Co. v. Economy Fire & Casualty Co.,
       217 Ill. App. 3d 181 (1991). In that case, a passenger was killed while riding in a vehicle driven
       by an excluded driver. When the insurer of the vehicle driven by the excluded driver denied
       coverage for the death of the passenger based upon the named driver exclusion, the mother of
       the passenger sought uninsured motorist benefits pursuant to her own automobile insurance
       policy. The mother’s insurer filed a complaint for declaratory judgment, claiming that, to the
       extent the named driver exclusion barred uninsured motorist coverage with respect to the
       passenger, the exclusion violated the public policy of section 143a and was unenforceable and
       void. Id. at 183-84.
¶ 38       The appellate court disagreed, noting that if a passenger is injured while riding in an
       uninsured vehicle, the passenger must look to his own policy for recovery under its uninsured
       motorist provision. Id. at 187. The court explained that it did not violate public policy to
       recognize the named driver exclusion endorsement, which rendered an otherwise insured
       vehicle uninsured, because the intention and purpose of section 143a was to provide recovery
       for insureds under their own uninsured motorist provisions. Id.
¶ 39       State Farm cites Rockford Mutual in support of its claim that enforcing its named driver
       exclusion does not violate the public policy of section 143a-2. Rockford Mutual, however,
       actually supports plaintiff’s position in this case. As discussed, Rockford Mutual held that if a
       passenger is injured while riding in an uninsured vehicle, the passenger must look to his own
       policy for recovery under its uninsured motorist provision. Id. Like section 143a concerning
       uninsured motorist coverage, the intention and purpose of section 143a-2 is to provide
       recovery for insureds under their own underinsured motorist provisions. Here, plaintiff was
       injured while a passenger in a vehicle that was underinsured. Plaintiff therefore sought
       recovery under her own policy under its underinsured motorist provision.


                                                   -8-
¶ 40       State Farm also claims that the decisions in Villicana, 181 Ill. 2d 436, and Fuoss v. Auto
       Owners (Mutual) Insurance Co., 118 Ill. 2d 430 (1987), support its argument that policy
       exclusions do not become unenforceable merely because the named insured is the person
       seeking the coverage. Those decisions, however, also are inapposite.
¶ 41       In Villicana, the insured had two separate policies insuring two vehicles, one of which had
       higher policy limits than the other. The insured’s daughter was injured while riding as a
       passenger in the vehicle insured with lower limits. Because the damages incurred by the
       insured’s daughter exceeded the amounts she recovered from the driver of her father’s car and
       from the liability policy on that car, she filed a claim for underinsured benefits pursuant to the
       policy insuring her father’s other vehicle. That policy contained a “family car exclusion.” The
       family car exclusion prevented an automobile, which is furnished for the regular use of the
       insured, the insured’s spouse, or any relative who lives with the insured, from being deemed an
       underinsured motor vehicle. The issue before the court was whether an underinsurance policy
       could exclude benefits to a family member who is injured in a different family automobile.
       Villicana, 181 Ill. 2d at 438-41.
¶ 42       Villicana held that, under the circumstances of the case, the exclusion could be enforced.
       Id. at 441. The court noted that the underinsured motorist statute was enacted to afford
       consumers the means with which they could protect themselves from the choices of other
       drivers over whom they had no control. In the case before it, the amount of liability and
       underinsured coverage selected for the vehicle involved in the accident was within the control
       of the insured, who chose lower limits for that vehicle than for his other vehicle. Id. at 446-47.
¶ 43       Here, in contrast, plaintiff had no control over the amount of liability insurance purchased
       by Clinton Evans for his own vehicle. As plaintiff observes, the law allows State Farm to
       refuse liability coverage to Clinton Evans, and once Evans was named as an excluded driver in
       plaintiff’s policies, plaintiff was obligated to make sure that Evans did not drive her vehicles.
       The accident in this case did not occur while Evans was driving one of plaintiff’s vehicles. The
       accident occurred when plaintiff was riding as a passenger in Evans’s vehicle.
¶ 44       The named driver exclusion did not prevent Clinton Evans from driving his own,
       separately insured vehicle. The Financial Responsibility Law required Evans to obtain liability
       insurance in at least minimum liability amounts, which he did. Although State Farm argues
       that plaintiff had control over choosing whether to ride as a passenger in Clinton Evans’s
       vehicle, we do not read the underinsured motorist statute as requiring an insured to determine a
       driver’s limits of liability coverage before riding in his vehicle in order to recover
       underinsurance benefits.
¶ 45       Fuoss also is distinguishable from this case. The insured in that case purchased liability
       coverage in the amounts of $25,000 per person and $50,000 per accident and uninsured
       motorist coverage in the amount of $15,000 per person and $30,000 per accident. The insurer,
       however, failed to offer the insured underinsured motorist coverage.1 The insured was injured
       in an automobile accident and settled with the tortfeasor for $100,000, the maximum amount
       payable under the tortfeasor’s liability policy. The insured then sued his insurer, asking the

          1
           The statute in effect at the time of the Fuoss decision stated that when an offer of uninsured
       motorist coverage was made to the insured, that offer should also include an offer of underinsured
       motorist coverage. See Ill. Rev. Stat. 1981, ch. 73, ¶ 755a-2(3).

                                                   -9-
       court to reform his original insurance policy to include sufficient amounts of underinsured
       motorist coverage to compensate him for all the damages from the accident, which he claimed
       exceeded the $100,000 that he recovered from the tortfeasor. Fuoss, 118 Ill. 2d at 431-32.
¶ 46       The Fuoss court noted that section 143a-2(4) provided that an insured may elect to
       purchase limits of underinsured motorist coverage in an amount up to the uninsured motorist
       coverage on the insured vehicle, which under the insured’s policy was $15,000 per person and
       $30,000 per accident. Id. at 433-34. Even if the insured’s policy was reformed to increase his
       uninsured motorist coverage to the amount of his bodily injury liability limits, and thereby also
       increase his underinsured motorist coverage, that amount would be $25,000 per person and
       $50,000 per accident, less than the $100,000 that the insured received from the tortfeasor. Id.
       The court found the insured’s claim that he would have purchased a sufficient amount of
       underinsurance to cover his loss, had the insurance been offered, was too speculative. Id. The
       court stated that permitting the insured to choose underinsured motorist coverage after the fact,
       in an amount greater than he originally selected for bodily injury liability coverage, would be
       “ ‘repugnant to our system of justice’ ” because the insured would be providing more
       protection for himself than he was willing to extend to the general public. Id. at 435 (quoting
       Fuoss v. Auto Owners (Mutual) Insurance Co., 148 Ill. App. 3d 526, 535 (1986)).
¶ 47       State Farm suggests that plaintiff in this case is attempting to secure more protection for
       herself than she was willing to extend to the general public when she agreed to and signed the
       named driver exclusion. This is incorrect. The accident in this case happened while Clinton
       Evans was driving his own vehicle, insured under his own policy. If a member of the general
       public was injured in an accident with Clinton Evans, he or she could recover from Evans
       under Evans’s liability policy. If that individual’s underinsured motorist policy provided
       higher limits than Evans’s liability policy, they could seek underinsured motorist coverage
       under their policy, as plaintiff is doing in this case. A member of the general public has the
       same right as plaintiff to obtain higher limits of underinsured motorist coverage from their
       insurer.
¶ 48       None of the cases cited by State Farm support its claim that the driver exclusion
       endorsement in plaintiff’s policies could deny plaintiff underinsured motorist coverage under
       the facts of this case. Section 143a mandates that every automobile liability insurance policy
       provide uninsured motorist coverage in at least the minimal amounts required under the
       Vehicle Code. If the insured’s uninsured motorist coverage limit exceeds the minimum
       liability limit required by the Financial Responsibility Law, as plaintiff’s did, section 143a-2
       mandates that the policy also include underinsured motorist coverage in an amount equal to the
       uninsured motorist coverage. Because section 143a-2 mandated that plaintiff’s policy include
       underinsured motorist coverage, excluding plaintiff from underinsured motorist coverage
       through a contractual provision violates section 143a-2 and, therefore, public policy, under the
       facts of this case. The driver exclusion endorsement in plaintiff’s policies with State Farm was
       not enforceable to exclude underinsured motorist coverage to plaintiff for the June 17, 2012,
       accident. Accordingly, the appellate court properly affirmed the trial court’s order granting
       summary judgment in favor of plaintiff on her complaint for declaratory judgment.




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¶ 49                                       CONCLUSION
¶ 50       For all the foregoing reasons, we affirm the judgment of the appellate court, which
       affirmed the trial court’s order denying State Farm’s motion for summary judgment and
       granting plaintiff’s motion for summary judgment.

¶ 51      Appellate court judgment affirmed.




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