1 Defend ant State Farm Mut

ual I nsuranc e Company

, which in sured Torres, is n ot a part y to this app eal. THIRD DI VISI ON March 31, 2010 No. 1-08-0402 AMERI CAN SERVICE IN SURANCE ) COMPANY, ) APPEAL FROM THE Plaintiff-Appellant and Cross-Appellee, ) CIRCUIT COURT OF ) COOK COUNTY v. ) ) ARTHUR JONES, RAMOS MOVERS, INC., ) JOSE G. TORRES, ) No. 05 CH 5359 Defendants-Appellees ) ) (E li te Re nt al , In c. , a nd Na ti on al Ca su al ty ) Co mp an y, ) Defendants-Appellees and ) Cross-Ap pellants; ) HON ORA BLE ) MARY ANNE MASON, St at e F ar m M ut ua l In su ra nc e C om pa ny, ) JUDGE PRESIDING. Defendant). ) JUSTICE STEELE deliver

ed the opi nion of the

court: In th is dec lar ato ry ju dgm ent act io n, p lai nt iff Ame ric an S erv ice Insu ran ce C om pan y (AS I) appeals an order of the ci rcuit co urt of Cook

County granti ng summa

ry judgmen t to defe ndants Elite Rental, Inc. (Elite), National Casualty Company (National), Ramos Movers, Inc. (Ramos), and Jose G. Torres (Torres) on count I I of ASI 's complaint, ruling that ASI pr ovided primary

covera ge and was oblig ated to de fend Ramo s in an unde rly ing automobile co llision suit, while National 's policy pr

ovided exc ess cove

rage. National

and Elite cross-a ppeal fr om the cir

cuit court's ruling on their counterclaim, g ranting summary

judgment to ASI and Torre s and declaring that National's policy

provides $1 million of coverage. 11-08-0402

-2- BACKGROUND The record on appeal discloses the following f acts. Ramos is a moving company that owned two trucks for personal moving service s. On October 5, 2004, defendant Arthur Jones (Jones) rented a truck from Elite on behalf of Ramos to complete a sche duled move that day fr om Cry stal L ake, Illinois, to Cr own Point, I

ndiana. E

n route, Jones was involved in a collision w

ith Torres, while still in Illinois, resulting in injuries to Torres. Since 1995, the Illinois Commerce Commission (IL CC) had issued a public carrier certificate and certificate of public convenience and necessity to Ramos, granting Ramos the authority to opera te as a c ommon car

rier of h ousehold goods betw een point s within a 5 0-mile radius of Chicag o, Ill inois, and

as a common carr

ier of other goo ds to and f rom points i

n Illi nois. In 20 03, Ramos a

pplied to A SI for truck in surance . The app lication d escribe s Ramos as a local hou sehold fu

rnishing s mover. T

he applic ation liste d a truck and a va n, each located in Chicag o, Ill inois, with

an opera ting ra dius of 50 m

iles. ASI insured Ramos under a g eneral liability policy , listing Ramos's two trucks as covered vehicle s. The ASI

policy included a single , combine d limit for b odily injury and prop erty damage of $750,0 00. The po licy provides : "COVERAGE A – BODI LY I NJURY LIAB ILITY

*** ADDITI ONAL CONDITIONS 1. Other Insurance . Temporary Substitute and Newly Acquire d Vehicles With respect to a Temporary Substitute automobile, this insurance1-08-0402

-3- shall be excess insurance over any other valid and collectible insurance available to the insured.

*** COVERAGE B – PROPERTY DAMAGE LI ABIL ITY The company w

ill pay on behalf of the

insured all sums, except for punitive or exempla ry damage s, which the insure d shall be come leg ally obligat ed to pay as damages because of A. bodily injury

or B. prop erty damage to which this insurance applies, caused by an accident and arising out of the ownersh ip, mainte nance or use of a

n owned ve

hicle or any tempora ry substitute automobile, and the company shall defend any

suit alleging such bodily injury or propert y da mage a nd seekin g damages which

are pay able unde r the ter ms of this policy." The ASI policy defines a "temp orary

substitute

automobile " as: "[A] vehicle not owned by the na med insured or any

resident of the same household, while temporarily used w ith the permission of the owner as a substitute for an owned vehicle when withdrawn f

rom norma

l use for servicin g or re pair or b ecause

of its breakdown, loss or distruction [ sic ]." ASI's policy

was certified with the IL CC in compliance with Illinois law and as proof of1-08-0402

-4-

financi al responsibility

under the rules for carr

iers of property . ASI' s policy further provides : "When this policy is certified a s proof of financial responsibility under the provisions of any motor vehicle f

inancial responsibility law, such insura nce as is afforded by

this policy *** shall c omply

with the pr

ovisions of

such law to the exten

t of the c overag e and limit s of liability required by

such law." Moreove r, ASI 's policy pr

ovides: "The ins urance afford ed by this policy

is primar y in surance , except w

hen state d to apply in excess o f or cont

ingent u pon the ab sence of

other ins urance . When this insurance is primary

and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company' s liability under this policy shall not be reduced by

the existence of other insurance." National insured Elite under a commercial automobile liability policy, listing Elite's r

ental vehic les as insu red veh icles . Nati onal's poli cy defines "insu reds" t o incl ude an yone usin g a

covere d auto Elit

e owns, or

hires or borrows with Elite 's perm

ission. A sy

mbol endorsement to the National policy de fined sy mbol "10" automobile s as: "Any a uto used under a written rental agre ement, issued by y ou, stating a rental period of less than one y ear. An y a uto used in

you r renta l business , or used f

or non bus iness purposes with your per

mission." The National policy pr

ovides coverage to sy

mbol "10" automobiles up to $1 million per

occurrence.1-08-0402

-5-

Another National endorsement – the "Daily Auto Rental Endorsement" – amended the definition of an insured to include: "The ' rentee ' and a

ny other person author

ized by and desig

nated in t he 're ntal ag reemen t' held by the 'rentee,' subject to all conditions set forth in this endorsement." A"ren tee" is d efined a s "a hold

er of a ' rental a greement' " with Elite

"of les s than one

ye ar." Th

is endorsement limits liability for rentees to $50,000 for bodily injury

to any one person in one accident, $100,000 for bodily injury to two or more people in one accident, and $50,000 for propert y da mage in any one acc ident. The "Daily

Auto Rental Endorsement" further replace s the general "other insuranc e" condition to provide: "For any covered 'auto,' the insura nce provided by

this policy is primary, unless stated otherwise in the 'rental agr eement,' for the 're

ntee' and any

other person authorized by the 'rental agreeme nt' hel d by the 'ren tee.' " The ren tal agr eement b etween

Elite and Jones provi des in par

t: "Rentor provides liability cove rage to persons using the vehicle w ith the permission of the Rentor *** in accordance with the provisions of an automobile liability insurance policy with limits e quals [ sic ] to the minimu m require ments of a

ny a pplicabl e state financial responsibility law or othe r similar law or statue [ sic ]. All cove rages under thi s Agreement are applica

ble only after

all other valid and collectible insurance (whether primary, excess or c ontingent) has been paid and exhausted to the full limits of all such policies."1-08-0402

2 National and Elite abandoned this claim during briefing on the summary judg

ment motions be fore the

trial cou rt. -6- AS I an d N at io na l f

il ed de cl ar at or y ju dg me nt ac ti on s i n t he ci rc ui t c ou rt of Co ok Co un ty, seeking a determination of their respec tive rights and obligations. ASI a sked the court to find that its policy did not cover Ramos or Jones because the rental vehicle was not an insured automobile under the policy, or that National's policy

provided primary c overage and that the ASI po licy

provided excess coverag e. Ramos f iled a co untercl aim, which he nonsu ited prior to this appeal. National and Elite also filed a counterclaim seeking declarations that: (1) National did not owe a duty to defe nd Ramos; (2) ASI provided primary coverage; (3) Elite was an additional insured under the ASI policy 2 ; and (4)if National's pol icy applies, it was limite d to $50,000 of excess coverage. On July 24, 2006, ASI move d for summary judg ment on count II

of its complaint, arguing that National's coverage

was primary a

nd ASI's covera

ge – if any

– was excess. On June 19, 2007, Torres filed a motion for summary judgment arguing that the ASI policy provided primary

covera ge to Ra mos. The sa

me day, Torres

filed a motion for p artial su mmary judgmen t again st National and Elite , argu

ing that : (1) the r

ented tr uck was a covere d auto with

$1 million in liability coverag e under the National policy ; and (2) Ramos was an insured under the National policy . That same day

Ramos move d for summa ry judgmen t, argu ing that : (1) ASI 's suit breached the te

rms of its own policy

and the f inancia l respons ibility

laws of I llinois; an d (2) ASI acted in bad faith during the litigation and fra udulently induced Ramos to make statements in an1-08-0402

-7-

attempt to deny him covera ge. On June 29, 2007, National and Elite filed a joint motion for summary judgme

nt arguing that: (1) National's c overage was subjected to the $50,000 limits; (2) National's coverage

was excess to the ASI policy ; and (3) Elite is an additional insured under the AS I pol icy. Nat io nal and Eli te a ls o fi led a cr oss -mo ti on f or s um mar y jud gme nt aga in st AS I, contending that: (1) the ASI policy must provide coverage in order to comply with the financial responsibility laws of I

llinois; and (2) Elite owed neither Torres nor the public a corre sponding duty to provide primary

coverage in this case. On December 14, 2007, the circuit court issued a memora ndum opinion and order, disposing of the summary judg ment motions. The circuit court first ruled that ASI' s argument that the Elite truck was not a "temporary substitute vehicle" failed because the financ ial responsibility laws of I

llinois require that a carrier's insuranc e must cover any vehicle operated under the authority of

that carrier, whether or not the vehicle has been reported to the insurer. The circ uit court t hen rule d that the

ASI po licy

provided primary covera ge, be cause a

llowing A SI to provide only excess cover age would violate the public policy of Illinois as established by the financial responsibility laws of I llinois. The circuit court further ruled that National's policy was ambigu ous, r esult ing in an avai lable limi t of $1 mill ion. Final ly, the co urt de nied R amos's motion for

summary judgmen t, on the g round tha t the motion

failed to identify the claim s asserted or the elements thereof, as we ll as why the undisputed material f acts compelled judgment as a matter of law in his favor. On January 10, 2008, the circ uit court denied ASI's motion to reconsider . On January 24, 2008, the circuit court denied National and Elite's motions to reconsider a nd found no just reason1-08-0402

-8-

to delay enforc ement or

appeal o f the Dec ember 14 , 2007, or der, pursuant to I

llinois Supr

eme Court Rule 304(a) (210 Ill. 2d R. 304(a)). On F ebruary 6, 2008, ASI filed an amended notice of appeal t o this cour

t. On February

8, 2008, N ational a

nd Elite f iled a not ice of cross-ap

peal to th is court. DISCUSSION The primary issue on a

ppeal is whether the circuit court erred in g ranting summary judgments to National, Elite and Torres (ruling the ASI policy provided primary

coverage) and also to Torres (ruling the National policy provided up to $1 million of excess coverage). Appellat e revie w of a summary

judgmen t ruling is de novo

. Arangold Corp. v. Zehnder , 204 I ll. 2d 142, 146, 787 N.E.2d 786, 789 (2003). Summary judg ment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any , show that there is no gen uine issue as to any materia l fact an d that the moving pa

rty is entitle d to a judg

ment as a matter of law." 735 ILCS 5/2-1005(c) (West 2006). The interpreta tion of an insurance policy and th e cover age prov ided a re ques tion s of la w that are app ropri ate for resol utio n thro ugh summary judgme

nt. Crum & Forster Managers Corp. v. Resolution Trust Corp. , 156 Ill. 2d 384, 391, 620 N.E.2d 1073, 1077 (1993). I ASI first argue s that the trial court erred in ruling that its policy provided primary

covera ge. The c ircui t cour t rule d that ASI's pol icy provi ded pr imary ins urance , rejec ting A SI's assertion that the truck rented from Elite was not covere d by ASI 's policy ( or if it was covered, that the p olicy

was exce ss), bec ause this assertion violate d public po licy as estab lished by

Illinois1-08-0402

-9-

law. See Progressive Universal I nsurance Co. v. Liberty

Mutual Fire Insuranc e Co. , 215 Ill. 2d 121, 129, 828 N.E.2d 1175, 1180 (2005). The circuit court relied on sections 18c-4901 and 18c4903 of the Illinois Commercial Transportation L aw (Transportation Act) (625 I LCS 5/18c-4901, 18c-490 3 (West 200 6)). Section 18c- 4901 provides:

"No motor

carrie r of prop erty

shall ope rate wit hin this Stat

e unless i t has on fi le with the [Illinois Commerce] Commission or its agent proof of continuous insurance or surety coverage in accordance with Com mission regulations. " Section 18 c-4903 provides:

"Each certificate or other

proof of insurance or surety coverage shall have, as a n implied te

rm, that ** * all motor

vehicle s operat

ed by or under authority of the ca rrier will be covered, whether or not such vehicle s have been reported to the insurance, sure ty, or other company." 625 IL CS 5/18c-4903 (West 2006). Accordingly , the circuit court rejected ASI 's argument that the truck at issue was not c overed by it s p ol ic y. ASI a rgues t hat the r equirements of th e Transp ortation Act do not a pply in this cas e because the rented truck was being used for interstate commerce. ASI relies on Canal Insurance v. A &R T ran spo rta ti on & Wa reh ous e, LLC , 357 Ill. App. 3d 305, 312-13, 827 N.E.2d 942, 948 (2005), a case involving interstate commerc e:

"Section 18c-1201 of the Transportation Act specific ally states that the jurisdiction of the Illinois Commerce Commission 'shall extend to for-hire transportation by motor carr

ier *** within the State of Illinois, and except as otherwise provided1-08-0402

-10-

elsewhere in this Chapter shall extend only to intrastate commerce .' (Emphasis added.) 625 IL CS 5/18c-1201 (West 2002). It is undisputed that, at the time of the occurrenc e alleged in the underlying action, Boyd was hau ling a load of r efrigerated freight for A&R from I llinois to Pe

nnsy lvania. A s a conse quence , Boy d was eng aged in

'inter state commerce' (see 625 I

LCS 5/18c-1104(16) (West 2002)), and the provisions of the Transportation Act upon which he relies are inapplica ble to the occurrence alleg ed in the underly ing act ion. As suc

h, they do not give rise to a

ny o bligation on the pa

rt of Cana

l to provide coverage under the Policy for any

vehicle which is not described in the declarations or listed in Endorsement E69L." Canal Insurance

is distinguishable from this case. That appeal involved an interpreta tion of section 18c-1201 of the Transportation Act and did not discuss the applicability of other sections. Section 18c-1201, by its own terms, a pplies, "except as otherwise provided elsewhere in this Chapter." 625 IL CS 5/18c-1201 (West 2006). Moreover, it is well settled that where two statutory provisions cover the sa me subject matter, the more specific statute gove rns. Huskey v. Board of Managers of

Condominiums of Edelweiss, Inc. , 297 Ill. App. 3d 292, 295, 696 N.E.2d 753, 755 (1998). Section 18c-1201 of the Transportation Act sets forth the g eneral jurisdiction of the ILCC, whi le sect ion 1 8c-41 01 of t he Tran sport ation Act sp ecifi cally add resses the ILCC's ju ri sd ic ti on ov er mo to r c ar ri er s o f p ro pe rt y:

"Except as provided in Section 18c-4102 of this Chapter, the jurisdiction of the Commission shall extend to all motor carriers of property ope rating within the State of Illinois." 625 I

LCS 5/18c-4101 (West 2006).1-08-0402

-11-

The exce ptions re ferenc ed in section 18c- 4101 do not apply to this cas e. See 62 5 ILCS 5/18c-4102 (West 2006). Accordingly , under sections 18c-4901 and 18c-4903, the jurisdiction of the IL CC is not limited solely to intrastate commerce. Indeed, t he ILCC's gra nt of a utho rity to R amos t o oper ate in a zon e surro undi ng Chi cago – with the required insurance – complements the feder al Motor Carrier Act of 1980, which provides for only limited fe deral ju

risdiction over tr

ansporta tion provi ded "in a

zone that is adjacent to, and commercially a part of" a municipality . 49 U.S.C. §13506(b)(1) (2006). Nor does it seem coincidental that the ILCC requires that the insurance submitted to satisfy our financial responsibility laws have the same minimum amounts of coverage required by the federa l Depart ment of Tr

ansporta tion for c arriers involved

in interst ate comme

rce. 92 I ll. Adm. Code §1425.30, amended at 18 Ill. Reg . 11162, 11165-66, eff. July 1, 1994; see Zurich American Insurance Co. v. Key

Cartage, I

nc. , 236 Ill. 2d 117, 130, 923 N.E.2d 710, 717 (2009) (Garma n, J., specially concurring

). Thus, this is not a case raising constitutional issues involving the regulation of interstate commerce a nd federalism. Rather, it is a situation in which federal and state authorities – both anticipating that the real world business of motor carr iers of property

does not always nea

tly fall into the categories of intrastate and interstate commerce – a re operating cooperatively

to protect the public. Th is ov er al l s ch em e h el ps ex pl ai n w hy Canal Insurance is also factually distinguishable

. Canal Insurance

involved transporting freight from I llinois to Pennsylvania. I n this case, Ramos was driving a truck between Cry stal Lake, Illinois, and Crown Point, Indiana. Ramos had insurance from ASI for

trucks expected to operate within a 50-mile radius of Chicago. B ased on1-08-0402

-12-

the ASI policy , the IL CC granted Ramos the authority to operate as a common carrier of household goods between points within a 50-mile radius of Chicago, I llinois. ASI does not dispute that both Crystal L ake, Illinois, and Crown Point, I ndiana, fall within the 50-mile radius authorize d by

the ILCC an

d contemp lated by

the ASI policy . ASI' s argument, if a ccepte d, would frustrate the purpose of the Transportation Act that motor ca rriers of property

carryinsurance coextensive with the scope of their operations, for the protection of the public. ASI a lso cites Bisco v. Liberty

Mutual Insurance Co. , 176 Ill. App. 3d 280, 530 N.E.2d 1163 (1988). In that case, this cour t interpreted section 18c-4901 and concluded that while the United Parcel Service van at issue might usually be driven within the scope of the Transportation Act, the van fell outside the scope of that law while being driven to an autobody shop by a shop employee. Bisco , 176 Ill. App. 3d at 283, 530 N.E.2d at 1164. See also 625 I LCS 5/18c-4102 (West 2006) (exempting incidental use of a vehicle for a primar y business purpose other tha n transportation). In this case, the c artage of household goods fa lls directly within the activities regulated by

the Transportation Act. 625 ILCS 5/18c-4101 (West 2006). For all of the aforementioned reasons, we conclude that the trial court did not err in ruling that the ASI policy

provides coverage in this case. II We next turn t

o the question of whe

ther ASI 's policy pr

ovides pr imary covera ge in thi s case. The circuit court relied on the rule tha t where two policies purport to be excess, and one provision violates public policy, the contrac t violating public policy will be dee med primary. Pekin Insurance Co. v. Fidelity & Guaranty

Insurance Co. , 357 Ill. App. 3d 891, 901, 830 N.E.2d1-08-0402

-13-

10, 18 (2005). ASI arg

ues that its policy is not primary, contending: (1) genera lly, where two insu rance p olici es each purpo rt to o ffer on ly second ary coverage , the i nsura nce of t he veh icle's owner is p

rimary while tha t of the dr iver is se condary; and (2)section 9 -105 of the Ill inois Vehicle Code (625 ILCS 5/9-105 (West 2006)) required Elite to provide an operator's policy

. The circuit court rejected these ar guments, rely

ing on this court's opinion in State Farm Mutual Automobile Insurance Co. v. Hertz Claim Manag ement Corp. , 338 Ill. App. 3d 712, 789 N.E.2d 407 (2003), which we quote at length for its detailed discussion of the issue:

"Section 7-601(a) of the Illinois Vehicle Code provides that no one may operate a motor vehicle or allow a vehicle to be operated without obtaining sufficient insurance. 625 IL CS 5/7-601(a) (West 2000). For most vehicles, section 7-203 requires that the policy limits must be at least $20,000 per person or $40,000 pe r accident for personal injury or death a

nd at least $15,000 for property damage. 625 ILCS 5/7-601(a), 7-203 (West 2000). Section 7-317(b)(2) requires that the insurance must cove r any per son driving the insured vehicle with the express or implied permission of the insured. 625 IL CS 5/7-317(b)(2) (West 2000). Such coverage is commonly referred to as 'omnibus coverage.' If the policy does not expressly provide omnibus coverage, it will be interpreted as providing it. State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group , 182 Ill. 2d 240, 244, 695 N.E.2d 848, 850 (1998) (where omnibus clauses are required by

statute, such a clause must be read into each insuranc e policy). Among th e vehicl es exempte d from the require ments of se ction 7-6 01(a) a re those in compliance with other statutes that require insurance in amounts meeting or exceeding1-08-0402

-14-

those re quired by

section 7 -601(a) . 625 ILCS 5/7 -601(b) (6) (West 2000). The Ill inois Supreme Court has held that this exception applies only if the other statute r equires coverage of the type

mandated by sec

tion 7-601(a). Universal Underwriters Group , 182 Ill. 2d at 245, 695 N.E.2d at 851. Section 9-101 of the I llinois Vehicle Code requires the owners of rental vehicles to provide proof of fina ncial responsibility to the Secreta ry of State. 625 IL CS 5/9-101 (West 2000). Financial responsibility may be in the form of a bond, an i nsuranc e policy

, or a ce rtifica te of self -insura nce. 625 IL CS 5/9-102 (

West 2000). If the owner of

the rental car opts to provide an insurance policy , as Ford has done in the instant case, it must provide coverage with limits of at least $50,000 per person for bodily injury or death or $100,0 00 per ac cident f or bodily injury or death and prop erty damage. The policy

must cover any dr

iver using the car with the insured's e xpress or implied permission. 625 ILCS 5/9-105 (West 2000). Be cause the rental car insurance law requires rental cars to be insured in amounts exceeding those required by

sections 7-601(a) and 7-203 and contains an omnibus clause identical to that found in sec tion 7-317(b)(2), we find that rental cars f all within the exception provided by section 7-601(b)(6). Section 7-317 and section 9-105 are silent on which insurer is to provide primary

covera ge whe re the dr iver and the vehic le are c overed b y di ffere nt policie s. 625 I

LCS 5/7-317, 9-105 (West 2000). However, the I llinois Supreme Court has stated that, absent statutory langua ge to the contrar y, t he omnibus

clause f ound in sec

tion 7-317 (b)(2)'must be con strue d to re quire prima ry coverage. ' Universal Underwriters Group , 182 Ill. 2d at1-08-0402

-15-

246, 695 N .E.2d at 8 51. We note that the two omnibus c lauses se rve the s ame purp ose and contain nearly

identical language. For

the reasons which follow, however, we conclude, as have the other Illinois appellate courts to consider the issue, that section 9-105 does not require a rental car a gency to provide primary insura nce as long as such coverage is available fr

om another source. The purpose of the omnibus provisions is to protect the public by ensuring that adequate resources are a

vailable to compensate for injuries sustained as a result of automobile accidents. Insu rance C ar Renta

ls, In c. v. State Farm Mut

ual Automo

bile Insurance Co. , 152 I ll. App. 3d 225, 232, 5 04 N.E.2d

256, 261 ( 1987). Their purp ose is the protection of the public, not other insurance age ncies. Continental Casualty Co. v. Travelers Insura

nce Co. , 84 Ill. App . 2d 200 , 20 4, 2 28 N .E. 2d 1 41, 144 (19 67) . In general, where two insuranc e policies each purport to offer only secondary

coverage, the insurance of the vehicle's owner is primary while that of the dr iver is secondary

. Dotson v. Agency

Rent-A-Car, Inc. , 101 Ill. App. 3d 804, 807, 428 N.E.2d 1002, 1004 (1981). However, the Illinois courts that have considered this question in the unique context of rental cars have concluded that the g eneral rule does not apply

. Farm Bureau Mutual Insurance Co. , 319 I ll. App. 3d at 389, 74 4 N.E.2d a

t 305; Insurance Car Re

ntals, Inc. , 152 I ll. App. 3d

at 234, 50 4 N.E.2d a

t 262; Dotson , 101 Ill. App. 3d at 808, 428 N.E.2d at 1005. This is so because the public policy a t stake is not frustrated by de parting from the general rule. Farm Bureau Mutual I nsurance Co. , 319 Ill. App. 3d at 389, 744 N.E.2d at 305; Insurance Car Re

ntals, Inc. , 152 Ill. App. 3d at 234, 504 N.E.2d at 262.1-08-0402

-16- In Insurance Car Re

ntals, Inc. , as here, a driver rented a c ar for use while his car was being repaired. Insurance Car Re ntals, Inc. , 152 Ill. App. 3d at 227, 504 N.E.2d at 258. As here, the car rental ag ency off ered him a choice between rely ing on his insurance company to provide

primary covera ge or p ay ing a hig her cost in order to be prov

ided with full coverage through the r ental agency

's insurer. The driver opted for the f ormer option. Insurance Car Re

ntals, Inc. , 152 Ill. App. 3d at 228, 504 N.E.2d at 258. The Third District Appellate Court found that the car rental ag ency fulf illed the purpose of protecting the public because it 'did provide a means for obtaining insurance if a customer chose to us e [it s] in suran ce.' Insurance Car Re ntals, Inc. , 152 Ill. App. 3d at 232, 504 N.E.2d a t 261. I n so holding , the cour

t emphasize d that the

re were two sepa rate agreements the driver could have entered into with the rental car age ncy. Had he

chosen to purchase insurance through the agency' s insurer, he would have had to sign a differ ent form, which was a different color. Moreove r, the cost of renting the car would have been higher. Insurance Car Re ntals, Inc. , 152 Ill. App. 3d at 232, 504 N.E.2d at 261. Thus, the court reason ed, th e agency prot ected 't hose w ho wou ld ot herwi se be u nins ured. ' Insurance Car Re

ntals, Inc. , 152 Ill. App. 3d at 232, 504 N.E.2d at 261. Similarly, in the case at bar, Auffenberg offer ed Kauling the option of purchasing the liability insurance supplement and e njoying full primary

coverage under the defendants' policies. As in Insurance Car Re ntals, Inc. , the rental agreement betwe en Auffen berg a nd Kaulin g made i t unmistaka

ble to Kau

ling tha t he was d

eclining such full coverage. The supplement had to be pur chased at an additional price. The rental c ontract1-08-0402

-17-

contained paragraphs both on the front a nd on the reverse explaining that by not purchasing the supplement, the driver was re lying on his own insuranc e to provide primary cove

rage. The parag

raph was highlighted on the front of the c ontract and preced ed by the word s 'NOTI

CE: Please

read the following

caref ully ' printe d in bold typ eface . In a

ddition, th e renta

l agre ement contained a

space f or Kaulin g to plac e his initials ind

icating whether he acce pted or de clined th e liability suppleme

nt. Thus, Auffen berg provides i

nsuranc e to drive

rs who oth erwise m

ight not b e cover

ed while renting its cars. It a

lso protects drivers from inadvertently declining coverage the

y need or prefer. We fi nd that th ese measures ad equately protect th e public." Hertz Clai m Management Corp. , 338 Ill. App. 3d at 715-18, 789 N.E.2d at 41-12. ASI a rgues t hat Hertz Claim Management Corp. is distinguishable, because Elite did not provide separate agre ements and did not provide Jones with an option to provide primary insuranc e to Ramos. National replies t hat Hertz Claim Management Corp. is not distinguishable, because Elite automaticall

y pr ovided Na

tional' s insuran

ce cove rage, albeit exc ess, to its customers, thereby

satisfying the unde

rlying public policy . Torres takes the position that whether Elite pro vided or o ffere d to provid e insura nce to Ra mos is irre levant, a

rguing that Ramos

chose to rely on its own primary coverage and that the public policy reasons for an exception to the general rule remain. The rationale of cases like Hertz Claim Management Corp. is that the rental car exception is justified precisely bec ause the rental agency is required to offer insurance to the driver w ho otherwise might not be covered, protecting the driver from inadvertently declining coverage he

or1-08-0402

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she needs or prefers and there by satisfy ing the demands of Illinois public policy . However, as Elite fai led to off

er prima ry insuranc e to Ramos, it cannot be said that Ramos choseto rely on its own insurance; thus, the general rule that the insura nce of the vehicle's owner is primar y applies. If Elite's automatic e

xcess coverage was deemed suf ficient, it would swallow the case law holding that a rental agency must offer the choice of primary coverage to the customer to esca pe the general rule that where two insurance policies each purport to offer only secondary

coverage, th e i ns ur an ce of

th e v eh ic le 's ow ne r i s p ri ma ry w hi le th at of th e d ri ve r i s s ec on da ry. Accordingly , we agree with ASI that National's policy

provides primary c overage for publ ic pol icy reason s, bec ause E lite faile d to o ffer Ra mos t he cho ice of p rimar y coverage . Howev er, th at con clusi on doe s not preclu de us f rom al so agree ing wi th th e circu it cou rt's conclusion that the ASI policy provides primary c overage pursuant to sections 18c-4901 and 18c

4903 of the Transportation Act. 625 IL CS 5/18c-4901, 18c-4903 (West 2006). Where two primary policies b oth conta

in "othe r insura nce" c lauses sta

ting tha t the cove rage p rovided i s "excess ," we mu st conclu de that th e two "excess" c lauses c ancel e ach othe r out, and any loss is prorated between the policies. See, e.g. , Ohio Casualty I nsurance Co. v. Oak Builders, I nc. , 373 Ill. App. 3d 997, 1000-04, 869 N.E.2d 992, 994-97 (2007) (a nd cases cited therein). III ASI, National and Elite all take issue with the trial cour t's declaratory

ruling that the National policy provided up to $1 milli on of exce ss cover age, a lbeit for differe nt reasons. ASI argues that the issue was not ripe for dec ision. National and Elite argue that the National policy was not a mbiguous

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"To maintain a declaratory judgment action, there must be an actual controver sy between the parties capable of bein g affected by a determinati on of the case. " Weber v. St. Paul Fire & Marine Insurance

Co. , 251 I ll. App. 3d

371, 372, 6 22 N.E.2d

66, 67 (19 93). Whether an ac tion is considered "premature" or unripe for adjudication focuses on an evaluation of the fitness of the issue for judicial decision at that point in time. Weber , 251 Ill. App. 3d at 372-73, 622 N.E.2d at 67. ASI a

rgues t hat the iss ue of poli cy

limits is not r

ipe for a djudicat ion, beca use it is integrally related to the merits of the underly ing suit of liability. See, e.g. , Certain Underwriters at Lloy d's, London v. Boeing

Co. , 385 Ill. App. 3d 23, 41-45, 895 N.E.2d 940, 956-59 (2008). The circuit court had ruled to the contrary , based on Scottsdale Insurance Co. v. Robertson , 338 Ill. App. 3d 397, 398-99, 788 N.E.2d 279, 280 (2003). ASI notes that the insurer in Robertson had already

acknowledged its policy

applied to the underlying claim; the parties merely disputed the policy limits. Robertson , 338 I ll. App. 3d at 398-99 , 788 N.E. 2d at 280. Such is not t he case here. However, given our c onclusion that the National policy provides pr imary cover

age, the issue is not premature. The circuit court relied on the well-established rule that if the te rms of an insurance policy are susc eptible to more than one meaning, they are considered ambiguous and will be construed strictly against the insurer that drafted the policy

. American States Insuranc e Co. v. Koloms , 177 Ill. 2d 473, 479, 687 N.E.2d 72, 75 (1997). The circ uit court ruled that the National policy was ambig

uous bec ause the

rental e ndorseme nt and the sym bol endorsement bo th purported to apply to vehic les rented under an agre ement with a term of less than one y ear, but at1-08-0402

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two different policy

limits. National's argument that the sy mbol endorsement applied to a subca tegory of t he veh icles used i n its busi ness o perati ons i s unpe rsuas ive, gi ven th at Eli te's business is renting trucks. Accordingly , the circuit court correctly determined that the National policy provided up to $1 million of coverage, though it does so on a primary basis, as noted earlier. IV Finally, ASI

argues that the circuit court err ed in denying

ASI's motion for leave to file a n amended complain t and deni ed cert

ain discovery . Howeve

r, the ci rcuit co urt did not

decide t hese issues in its December 14, 2007, order, and they are not implicated by the notice of appeal or notice of cross-appeal. Thus, this court lacks jurisdiction to consider these questions at this time. See, e.g. , Neiman v. Economy Pre ferred Insur ance Co. , 357 Ill. App. 3d 786, 790-91, 829 N.E.2d 907, 911 (2005) (and cases cited therein). CONCLUSIO

N In su m, we aff irm the ci rcuit co urt’s rul ing that

the ASI policy provides covera ge in thi s case. We also affirm the circuit court's r uling that ASI provided primary coverage in this case. Howeve r, we conclude that the Na tional poli cy

also prov ided prima

ry covera ge, an d that any loss and co sts o f defen se are t o be pr orated betwe en the poli cies. Final ly, we affi rm the circui t cour t's ruling that the National policy is ambiguous and, thus, provides up to $1 million of coverage. For all o f the af

orement ioned re asons, the

judgmen t of the c ircuit co

urt of Cook

County is affirmed as modified. Affirmed as modified.1-08-0402

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MURPHY, P.J., and QUINN, J., concur.