No. 2--02--0047                    DRAFT

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

CENTURY NATIONAL INSURANCE	)	Appeal from the Circuit Court

COMPANY,					)	of Du Page County.

						)

	Plaintiff-Appellee,		)	

						)

v.						)	No. 98--MR--0158

						)

JAMES J. TRACY and DEBRA TRACY,	)	

Indiv. and d/b/a CMDK 		)	

Development,				)	Honorable

						)	Edward R. Duncan, Jr.,

	Defendants-Appellants.	)	Judge, Presiding.

	JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

	Plaintiff, Century National Insurance Company, filed an action

for declaratory relief against defendants, James J. Tracy (James)

and Debra Tracy (Debra), alleging that James was not covered by an

insurance policy issued by plaintiff to CMDK Development (CMDK), a

company owned by defendants.  The trial court granted plaintiff's

motion for summary judgment and denied defendants' motion to

reconsider.  Defendants timely appealed.  We affirm.

	Defendants own CMDK, a contracting company.  Defendants

obtained automobile insurance from plaintiff, insuring a pickup

truck in the name of CMDK.  Debra is the only individual listed as

a driver on the application for insurance.  The policy contains an

Illinois Uunderinsured Mmotorist Ccoverage Eendorsement that excludes

from coverage "[a]nyone using a vehicle without a reasonable belief

that the person is entitled to do so."   James's driver's license was suspended from May 17, 1980, to November 11, 1994.  James has

been arrested several times for driving with a suspended license. 

The insurance agent who prepared defendants' application for

insurance testified via affidavit that, when defendants applied for

insurance, he knew that James did not have a valid license, and told

James that he would not be covered by the policy.

	Although James did not have a license, Debra would allow James

to drive the pickup occasionally, though she tried to limit his use

of the vehicle.  On February 24, 1994, James was involved in an

automobile accident while driving the pickup and sustained personal

injuries.  He did not possess a valid license on that day.  Debra

testified in her deposition that she does not recall discussing

with James before the accident whether he could use the pickup that

day.  James collected $50,000 from the other driver's insurance

company, and then sought to recover an additional amount under the underinsured motorist coverage provisions of the Century policy. 

In response, plaintiff sued for declaratory relief, alleging that

James was not covered by the policy.  Plaintiff then moved for

summary judgment, arguing that, because James did not have a

license at the time of the accident, he could not have reasonably

believed that he was entitled to use the pickup, and thus was not

covered by the policy.  The trial court agreed, and granted the

motion for summary judgment.  The court denied defendants' motion

for reconsideration.  Defendants timely appealed.

	On appeal, defendants argue that the policy contains no

explicit provision excluding unlicensed drivers.  Defendants also argue that James's failure to possess a valid driver's license in and of itself does not demonstrate that he could not have 

reasonably believed that he was entitled to drive the pickup.

	The standard of review on appeal from the entry of summary

judgment is de novo.  Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993).  The construction of an insurance policy and the determination of rights and obligations

thereunder are questions of law for the court and are appropriate

subjects for disposition by summary judgment.  Crum & Forster, 156 Ill. 2d at 391.  

	Defendants' argument that the policy contains no explicit

"unlicensed driver" exclusion is not persuasive.  The insurance

policy contains an exclusion providing that the policy does not

cover "[a]nyone using a vehicle without a reasonable belief that

the person is entitled to do so."  This exclusion encompasses

unlicensed drivers.  Economy Fire & Casualty Co. v. State Farm Mutual Insurance Co., 153 Ill. App. 3d 378, 383 (1987).  Accordingly, the absence of an explicit "unlicensed driver"

exclusion is of no consequence.  

	Defendants next argue that James's failure to possess a valid driver's license in and of itself does not demonstrate that he

could not have reasonably believed that he was entitled to drive

the pickup.  This is an issue of first impression in Illinois.  Only three Illinois courts have interpreted the policy exclusion at

issue.  None has decided whether the absence of a driver's license

in and of itself is enough for the exclusion to apply.

	In Hartford Insurance Co. of Illinois v. Jackson, 206 Ill. App. 3d 465 (1990), the policy exclusion at issue was included

within a list of other exclusions.  Certain of the exclusions

referred to "family members," while others referred to "any

person."  The "reasonable belief" exclusion referred to "any

person."  The court held that the policy was ambiguous because,

given the interchange of the terms "family member" and "any

person," it was unclear whether the "reasonable belief" exclusion applied to family members.  Jackson, 206 Ill. App. 3d at 476.  Accordingly, the court construed the policy against the insurer. 

See also Economy Fire & Casualty Co. v. Kubik, 142 Ill. App. 3d 906, 910 (1986) (similar policy language and same holding). 

Defendants rely on Jackson in their appeal.  As the trial court pointed out, however, because the Century policy does not

interchange the terms "any person" and "family member," Jackson is of no help to defendants.

	In Economy Fire & Casualty Co. v. State Farm Mutual Insurance Co., 153 Ill. App. 3d 378 (1987), the defendant lost his license and transferred title of his vehicle to his girlfriend.  One night,

the defendant forcibly took the car keys from his girlfriend, drove

the insured vehicle, and was involved in an accident.  The court

held that the "reasonable belief" exclusion applied and that he was not covered by the policy.  Economy Fire, 153 Ill. App. 3d at 382- 83.  The court relied on the following factors: defendant clearly

knew that "he could not legally drive any car while his license was

suspended"; he transferred title to his girlfriend; she was listed

as the owner; he told the insurance agent that he would not drive

the car because he had no license; he had not driven the car on

other occasions; and he was denied permission to drive the night of

the accident.  Economy Fire, 153 Ill. App. 3d at 383.  The court did note, however, that the lack of a license was "but one factor"

and that "we need not decide [] whether 'entitled' to use the car

means the legal authority to drive thea car so that [the unlicensed

driver] is thereby precluded from coverage on the sole fact that

his driver's license was suspended."  Economy Fire, 153 Ill. App. 3d at 383.  The court also held that the actual ownership of the

vehicle was not controlling.  Economy Fire, 153 Ill. App. 3d at 382.

	Several courts in other jurisdictions have interpreted this

same policy exclusion.  In most of these cases, however, there were

other factors at issue besides the lack of a driver's license. 

See, e.g., General Accident Fire & Life Assurance Corp. v. Perry, 75 Md. App. 503, 525-26, 541 A.2d 1340, 1351 (1988) (no license, no

permission, previous arrests for driving without a license); Craig v. Barnes, 710 A.2d 258, 260 (Me. 1998) (no license, no permission); Omaha Property & Casualty Insurance Co. v. Johnson, 866 S.W.2d 539, 540 (Tenn. Ct. App. 1993) (no license, no permission).  In the few cases where the only relevant factor was the absence of a driver's license, courts have gone both ways.  Compare Huggins v. Bohman, 228 Mich. App. 84, 89, 578 N.W.2d 326, 329 (1998) ("Without a drivers license [defendant] could not reasonably believe that she

had met all of the requirements necessary to entitle her to drive

[the automobile]"),, with Blount v. Kennard, 82 Ohio App. 3d 613, 617, 612 N.E.2d 1268, 1271 (1992) (a driver can have a reasonable

belief without a valid license).

	We agree with the trial court's decision granting summary

judgment. Although factors such as ownership are relevant, the

trial court was correct in holding that, without a valid driver's

license, an individual cannot reasonably believe that he or she is

entitled to use a motor vehicle in Illinois.  Here, James did not

possess a valid license at the time of the accident.  In fact, he

had not possessed a valid license for 14 years.  Furthermore, he

had been arrested several times for driving with a suspended

license.  Finally, the agent who prepared the insurance application

told James that he would not be covered by the policy.  Under these

facts, James could not have reasonably believed that he was

entitled to drive the pickup.  Accordingly, the exclusion applies

and James is not covered by the policy.

	Moreover, a finding in favor of defendants would violate public policy.  Defendants request us to find that James 

reasonably believed that he could use the pickup because, as a co-

owner of CMDK, he was an insured person under the insurance policy.  We are unable to make such a finding.  The public policy of Illinois is well known and well understood: a driver must possess

a valid driver's license to operate a motor vehicle in Illinois. 

625 ILCS 5/6--101(a) (West 1994).  A driver who operates a motor vehicle with a revoked or suspended license is guilty of a

misdemeanor.  625 ILCS 5/6--303(a) (West 1994).  James did not

possess a valid license at the time of the accident, and had not

possessed one for 14 years prior to the accident.  Nothing in the

insurance policy could overcome James's legal inability to drive. 

Therefore, a finding that James  reasonably believed that he could

use the vehicle, even though he did not have a valid drivers's

license,  because the insurance policy stated that he was an insured would violate Illinois public policy.

	The judgment of the circuit court of Du Page County is affirmed. 

	Affirmed.

	CALLUM and KAPALA, JJ., concur.