the next case in our call this morning is again the number fourteen case number one zero eight zero three eight kenneth w shows etc at all apple east versus illinois farmers insurance company apple land has this quarter's where this case comes before it from a consolidated cases in the circuit court of cook county in the schultz case the truck or world of farmers favor finding that its definition of under insured motorist which was more restrictive than the definition of uninsured motorist did not violate public policy in the wagon lairs decision the trial court found that farmers policy language was ambiguous and that the endorsement itself but finding that farmers policy language violated public policy farmers as this courtroom viewed the appellate court's determination that it was required under any statute to provide under insured voters cognizant of the fact that such public policy determination striking in policy language in the state should be used sparingly and they should be used when the statutes themselves dictate such a result or the case law is clear  in that regard sensor is no overriding public policy considerations with regard to the definition of who qualifies as an insured for this type of coverage we're asking the courts reverse that occupants of the vehicle they are not the policy holder they are not required by statute to be provided by ability coverage as liability ensures period it is undisputed in this case that the in the worst moment does not include these occupations as insurers i'll trust the public policy fine first because i think that is the main argument against the court's decision in this case since and never even considered the ambiguity or human in reaching its decision the appellate court in correctly construed the under insured motorist statute section five slash one forty three a dash to sub for to require that anyone insured for uninsured motorist coverage must also be insured for under insured motorists coverage that statute if it's look closely by this court only requires that the limits that are elected by the policy holder farmers named insured be the same for both coverages for example if the insured elects coverage in excess of the twenty forty required under a friend anshul responsibility law then the insured must be given an opportunity like to increase coverage for both of those coverages nothing in section one forty three a sub four requires that the insurers under the uninsured motorist statute and under insured motor statute do the same and it's for this reason that the appellate court's reasoning  language of that statute that has such a requirement through and your analysis is strictly a matter of state story construction exactly and it's not and it's exactly that the shirts that they're talking about in the first section and both of those statutes are very similar they did they talk about coverage being provided to the owners or operators of those vehicles in in this case that would be the named insured permissive drivers and that's consistent with section three seventeen of the financial responsibility law that requires that liability policies issued in this state be required to provide liability coverage for language that i referenced before in section one forty three a as requiring those who qualify as insurers under the policy for liability coverage was also have under uninsured motorist coverage the language in the under insured motor statute before the court is very similar in that regard that is that life building ensures the named incher permissive drivers and family members are required to have uninsured motorist coverage i q pince are found nowhere in this court's statutes or the case decisions of this court should say none of the claimants in this case fall within any of those categories now farmers in the main body of its policy for uninsured motorist coverage defined insurers to include act and be under insured motorists endorsement does not add this is an under insured motorist case since the claimants naff all within the classification of insured they are not entitled to that coverage under our policy as strangers to our contract since the statutes in this case only require the questions of insurers the named insured and permissive drivers to have this coverage farmers exclusion of that class of insured in the under insured motor statute from the under insured now the appellate court also criticized farmers payment of o'connor's claim in the white lawyers case and council spends nine pages almost half of his brief criticizing farmers decision in that regard i'll remind the court that o'connor was the permissive driver of the vehicle that regulars was a passenger in following perk to any and failing which recognize that liability insurers must be provided coverage from has made the decision to pay the commis of drivers claim because under the statute in farmer's argument that it must comply with all stitched toward requirements in force at the under insured motors coverage under our policy if this court falls more restrictive interpretation that the first district gave in its decision in clothes then farmers would not be  the claimants claim in this case the classification of insured is different we believe the statute provides such coverage and clearly indicates no reason for insuring occupants which the claimants are in this case intended to void the absurd situation where a policy holder were greasy fewer benefits in the for tourists event of being injured by an under insured motorist rather than an uninsured motorist statute and as for this reason that sole server lever says john dear i have no whatsoever to this case none of the passengers in this case qualify as policyholders am i correct though that if if these people good luck or not but if they got hit by uninsured motorist you know i'll be covered yes because of the nation of farmers has in the main body of its policy granting such coverage to occupants for uninsured motorist coverage keep in mind that nothing in the statute requires farmers to provide that coverage yet when there their coverage if they don't the fact that they included the coverage there's nothing in the state's law that says that if you over include an insured that somehow  gratuitous but doesn't it at least lessen the strength of the argument they you know there must be you know they did see fit in one instance and that you well when you compare the main body of policy which is a standard policy form which farmers use is not only in the state of illinois but in other states and although states have different definitions and and requirements definitions of who he is required to have  e under that policy be enforcement that's issued in this case is only specific it's more current form more current definition so when you consider the standard form so to speak policy that they use that there is no requirement in the state whatsoever to provide any such coverage documents and the fact that they were included within the definition of bunch of motorists in our policy should not automatically trigger coverage  terms of the policy i say otherwise and there is nothing in the statute that requires us to provide that coverage to that always true and when questions of public policy override another state even the state but but they have to be tied to some legislative purpose that the court can look to and requirements for us to provide the kind of legislative purpose description issues these policies all over the country and has special indorsements for various states the fact of the matter is the endorsement for uninsured and under insured motorists coverage especially under and under insured mo farmers use an illinois these two cases this is the market doesn't comply with the only statute doesn't comply with the an oil law in the reason why i spent nine pages of my brief address in what they did with  providing under insured coverage for all counters to show that they can't get it right for anybody their argument here is that missile counter was entitle to under insured congress not because of anything that sudden their policy the policy in fact excludes are for under insured coverage the policy provides under insured coverage only for you the named insurer in a family member missile canada was neither there is nothing in that policy that says they're going to provide under insured coverage for a  for her i q and tribe or operator they say that they had to provide coverage or they decided to provide coverage for missile counter despite her policy language because the case law in the statute required it so their policy language is the fish and especially with respect to missile conn is entitle to uninsured coverage under the policy you must also determine that they are in titles that under insured coverage in order to meet the statutory scheme we are not taking the position we don't need to take a position in this case it was provide under insured coverage to to her now counsel talks about how some of these cases including insults are which is which is one of this court's greatest pronouncements on the purpose in the reasons for the under insured statute involved named in shirts and he makes the point repeatedly that miss smith title was not a named insured well a more recent pronouncement on the purpose in the reasons for the under court used the same logic the same reasoning the same rationale that employed insults are to decide that mr cummins was entitle to under insured motorists coverage there is no question that the statute as it now exists requires that when you have uninsured motorist coverage in excess of twenty forty in excess of the statutory minimum liability limits you must have under insured motors coverage in the same amount it would have been catcher in the statute impermissible improper for farmers to issue a policy that would have provided miss smith had a with two hundred fifty thousand dollars of uninsured coverage but only twenty five thousand dollars of under insured coverage they come into that and yet farmers takes the position that it's permissible for them to issue a policy with two hundred fifty thousand dollars of uninsured coverage but no under insured coverage that's absurd that makes no sense the primary rule in statutory construction is to ascertain and give effect to the nth time and in the meaning of the legislature it's clear from the legislative debates it's clear from from your decisions and seltzer in and cummins in other cases that the purpose of under insured motorist coverage is for vent the situation where somebody would actually receive more coverage and more benefits when they were struck by an uninsured motorist than they would receive if they were struck by somebody who was in adequately insured that's the purpose for the enter insured motorist statute that's what should be accomplished here it is it is absurd that  ss smith time as a state would have received or could have received up to two hundred fifty thousand dollars of uninsured coverage from farmers but farmers takes a position that she's not entitle to any under insured motorists coverage mr stevens do you agree or disagree with mr workers argument that they would not have had to include occupants in the under the uninsured motorist portion of the policy and insured under uninsured motorist coverage there is support for that proposition is a case called failand heritage insurance failand versus heritage shuras which was decided in one thousand nine hundred seventy four and which involved a name driver exclusion and it was it was decided that because the young man a nineteen year old driver who apparently had a poor driving record was not an acceptable risk the heritage insurance he was an insured for any coverage under that policy  i'm not sure in one nine hundred seventy four case decided six years before the advent of under insured coverage and nine years before under insured coverage became mandatory by one forty three eighty two is really the appropriate case to decide that issue your honor but what we are saying in this case is the fact that they made miss smith ana and insured for uninsured motorist coverage meant that they also had to make insured for under insured motorists coverage in order not to produce the absurd results that this court addressed in both selzer and in come as versus country mutual he would then take issue with the insurance must provide coverage to the owner an operator of a vehicle and then he leaps leapfrogs to conclude that those are those that the owner and operator are the only two people that that are required under the state's use to be covered by uninsured and under insured motorists coverage i don't really think there's any justification for that conclusion but but even assuming that to be the case it's our position once again that once interpreted in light of other relevant provisions of the statute and must not be considered in isolation and used this court has also ruled that you must consider the state's attorney scheme the purpose for the under insured motorist under insured motors coverage but he came mr worker came before you a few months ago and said we had to provide coverage to missile counter because the the statute and the case law requires it so you can't you can't argue both positions you can say that we have the absolute right to decide who is an insured because the language of the state should says has that phrase and then the same argument come back and say well even though we did it and include them in our policy we had to include them because of the of previous case law you would have no argument counsel if the uninsured motorist provision definition of insured did not include insurance for purposes of uninsured or underinsured motorist coverage i believe it would wreak havoc on the state of insurance law in the state of illinois that's really not an issue before this court's in the as i said before it's not an issue that we're asking this court to decide oh i i think the way you framed the issue is because i keep it was included in farmers policy for purposes of uninsured motorist by nist necessarily occupant past of qualify for under insured motors absolutely that's exactly as well so my question is that i would choose to take the same position if in the definition of insured for either uninsured or o or on an under insured motorists that occupant was not in the definition that's my question i thought understand you and i don't mean to be difficult about this but are you asking me is it necessary to think i think i could come to this court if that were the issue make a strong public public policy argument why occupants should be covered for both car but your argument today is once included in one it has to be included in the oh yes  appellate court in my case they did not arrive at arguments because they already ruled in the appellate decision that it was a public policy violations of the court didn't get to the ambiguity issue although the court did affirm our case so i just wanted to make a few comments with respect to the ambiguity issue that is contained in the briefs and the ambiguity issue involves the inconsistent language it's our position of the endorsement itself the endorsement itself does include occupants for the purposes of you i am coverage under this argument that the first paragraph of the endorsement states that all the terms and conditions of part two uninsured motorist coverage part c apply to under insured motorists coverage c one in addition to the provisions of this indorsement so the endorsement in question the first paragraph of the endorsement question what it does is it does take the terms and conditions of you and coverage and brings it within the four corners of the endorsement as a consequence by bringing it in it becomes part of the endorsement the ambiguity its argument sets and that later on in the endorsement itself  discusses that this indorsement is part of the policy it supersedes and controls anything to the contrary it is otherwise subject to any and all terms and conditions of the policy so what we have in this indorsement by way  first paragraph is that it sets forth two sets of definitions are two sets of a definition of an insured for under insured motorists coverage the definition from uninsured motorist coverage which is incorporated and made a part of the endorsement by way of the first paragraph and the written language of the endorsement itself we have two diametrically different definitions here for what constitutes an insured for under insured motorists coverage thereby making it internally inconsistent within the four corners of the document and ambiguous and taking the plain in ordinary language that consulate's the import of the language in this that the term under  that would involve the public policy argument but let me let me answer the question as defined in the policy within the policy a occupant is defined as an insured in un coverage un coverage is part of the policy so therefore when looking at the policy there is part of the policy where the occupant is an insured so it is as defined in the policy farmers chose to make an occupant and insured under un motorist coverage and i think it's a matter of public policy if i can just go off on a little bit of a tangent here because it's doesn't specifically address the ambiguity argument but counsel mr stevens is right it would wreck havoc to exclude occupants from your own coverage and therefore you know i am coverage because at any given point in time occupants are within a moving vehicle i understand your public policy argument i'm just and for purposes of statutory construction the term under insured motor vehicle so we're we're dealing with under it should be for you i am as well and wreaking havoc i'm just saying the operative words i mean a straight strict construction of the statute seems to say that they get to choose who's insured well they get to choose who is insured but statutory construction also includes on extra element under the case law and that was not mentioned in the appellants presentation and that is that statutory construction and public policy must also take into account whether a particular policy also is injurious as  don't i don't remember the exact words injurious to the public or injurious to the legislative framework that the legislators legislature is trying to promote and certainly under uninsured motorist coverage and under insured motorists coverage the legislative framework that the attempted public policy of the state of illinois and for the citizens of the state of illinois is to protect as many people as possible with insurance as they are being propelled in a vehicle on the roadways of illinois and again going back to mr stevenson's argument to exclude an occupant from or to allow an insurance company to exclude an occupant from uninsured motorist coverage and under insured under insurance motorist coverage would in fact wreck havoc in the state of illinois with respect to insurance law because you'd leave a whole class of people vulnerable to injury without insurance because the op could because the occupants of a vehicle at any given point in time doesn't simply include the name insured and doesn't simply include a permissive driver it includes occupants as we know as a matter of the realities of life but getting back if i may your honor to the ambiguity argument the first paragraph question brings the definition of the insured into the endorsement so therefore in this indorsement within the four corners of indorsement you have an internal inconsistency you have an insurance that is defined one way as an occupant within the endorsement because it was brought in and you have an insured that is defined another way which is you are a family member those are two separate definitions of an insured within the four corners of one document it's  us it's internally inconsistent it violates the plain in ordinary meaning and for a consumer of insurance out there who's trying to understand what he is bargaining for when he purchases an insurance policy on so i'm sorry  i'd like to trust as i can issue first neither counsel has indicated to the court what public policy requires coverage for occupants the actual parents the passengers in this vehicle would be covered under their own policies if they had an automobile policy if they were standing on the corner and struck by an uninsured or underinsured motorist they could look to their own policy for coverage so wouldn't any havoc what's wherever with this state's idea of protecting people f that they're the best to make decisions as what coverage they're comfortable for the protection of themselves and there is nothing in any of the statutes that requires us to provide coverage  vehicle with that concept in mind when the court looks at public policy issues and they have to look at them sparingly if they're going to strike provisions in contracts keep in mind that there's a strong freedom of contract concept in the state then if we don't have to insure those individuals and they don't fall within the classifications of in church required to have coverage under those statutes then there is no overriding public policy reason forward napper right in the coverage in our policy be statute that we're referring to is not only section three seventeen of the financial responsibility long requiring coverage for the named insured permissive drivers were also referring to the language in the uninsured motorist statute regarding coverage which says that don't policy in china gets lost resulting from liability imposed by law for bottom line injury or death suffered by any person or wising out of the ownership mean answer use of the vehicle those are the classifications of insurance that fail and looked at and said that those quest for cations are liability insurance that was reaffirmed many years later in bertani by the appellate court in the first district and also looked at by this court i'm sorry by the underlying court in this case recognizing that the operative language the language that i referred to before is similar that makes failing a political to this case the fact that it was decided before that it is the same operative in the payment of that claim it has no bearing whatsoever as to whether or not the occupants the claimants in this case qualify as an churchs under the under insured voters coverage of its policy it really isn't a relevant issue it's one that the appellate court dealt with without argument and it's not in the record as to the morning vision of what farmers payment was it's certainly not relevant to the determination of any issue in this case of policy and working for this company for the last twenty plus years i can tell you being involved in a construct in their policy of language that they do have a main body of the policy they are confronted with many different statutes throughout the country that have differing views as to what should be or should not be included in an uninsured motorist coverage of the wrist why there's a separate indorsements because a number of states only require under insured motorists coverage speak ranted this state when it amended the statute to include section one forty three eighty two some four require that we offer the limits in an equal amount what is provided for uninsured motor coverage nowhere in the statute doesn't require us to provide any coverage fragments in fact the court accurately portrays language in the statute which says those that we defined by the policy now sisters came to mind you heard my question of opposing counsel with respect to their position is not for least for today that occupant has to be per the definition i believe their position is occupants and take out the the adding of occupant as an insured for you i'm covered they may you know as it pertains to the only specific policies that issue they they may issue an indorsement  taking out language or changing the definition of uninsured motorist intrade persons for uninsured motorist coverage to not include occupants because clearly as i've indicated and it has not been rebutted in this case there is no requirement under any statute or any case law for us to provide coverage for actions and that is the primary basis of the our grant and if one looks at the strict language of our policy and it ties into the ambiguity argument as well we limit the definition of insured to that coverage if you look at the language in the policy with regard to uninsured motorists coverage it says insurance for this coverage only and that language is mirror in the endorsement to our policy as well as it pertains under insured motorists coverage so there can be no confusion as to who farmers defined as insured under its policy further we've heard no argument today that farmers is required in any way to provide such coverage back and as i indicated the court there would be no overriding public policy reason to require such coverage because these individuals would be covered under their own automobile policies for uninsured or under insured motorists coverage if they so purchased the coverage so based on all of those concepts there is no public policy ground to strike down the definition contained within farmer's policy if this court follows the reasoning coast which says the insurance company can define insured anyway for uninsured or under insured motors coverage in its policy even if it's more restrictive than the definition of liability insured then farmers error in making payments all cattle but that error doesn't warrant payment or coverage under a policy for the claimants in this case country mutual it counsel reference a moment ago in those cases it was not in dispute who was a named insured under the policy and the court looked at the consequences of the coverage with regard to those policy holders here it's very clear that farmers never intended nor did it define an occupant as an insurer under insured motorists coverage in its policy and to completely ignore the language this contained within our statutes and create this coverage because farmers were too to slee provided that coverage to insurers for uninsured motorist coverage would be a rewriting of this legislation which is really frowned upon in the state and for those reasons we're asking the court this court to overturn the decision of the public court and senses that to know who will stand or view they can enter judgment of farmers favor finding that the claimants in this case actually parents are not entitled to under insured motors coverage under its policy thank you if you  case one zero eight zero three eight be taken under advisement is agenda number fourteen