{ "id": 3611077, "name": "AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff-Appellee, v. ANTHONY WILCOXON, Defendant-Appellant", "name_abbreviation": "American Country Insurance v. Wilcoxon", "decision_date": "1987-08-11", "docket_number": "No. 86-2493", "first_page": "884", "last_page": "891", "citations": [ { "type": "official", "cite": "159 Ill. App. 3d 884" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "279 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 8", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2837546 ], "weight": 3, "pin_cites": [ { "page": "12" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0008-01" ] }, { "cite": "52 Cal. Rptr. 569", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "pin_cites": [ { "page": "572" }, { "page": "574" } ], "opinion_index": 0 }, { "cite": "416 P.2d 801", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "pin_cites": [ { "page": "804" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "65 Cal. 2d 100", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2326732 ], "weight": 3, "pin_cites": [ { "page": "105" }, { "page": "106-07" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/65/0100-01" ] }, { "cite": "360 N.Y.2d 859", "category": "reporters:state", "reporter": "N.Y.2d", "weight": 3, "pin_cites": [ { "page": "861" }, { "page": "862" }, { "page": "862-63" } ], "opinion_index": 0 }, { "cite": "360 N.Y.S.2d 859", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "319 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "184" }, { "page": "184" }, { "page": "185" } ], "opinion_index": 0 }, { "cite": "35 N.Y.2d 260", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2314333 ], "weight": 4, "pin_cites": [ { "page": "263" }, { "page": "264" }, { "page": "264-65" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/35/0260-01" ] }, { "cite": "356 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "64 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428424 ], "weight": 2, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0239-01" ] }, { "cite": "297 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "54 Ill. 2d 333", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2931612 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0333-01" ] } ], "analysis": { "cardinality": 784, "char_count": 18140, "ocr_confidence": 0.794, "pagerank": { "raw": 8.130850020915158e-08, "percentile": 0.4684209388269355 }, "sha256": "7db74225c071d2f73fcc82cb90c71cc1b094c436b6595d05687278529047cb53", "simhash": "1:9ccee317abe7dcb2", "word_count": 2990 }, "last_updated": "2023-07-14T21:36:20.000303+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff-Appellee, v. ANTHONY WILCOXON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nDefendant, Anthony Wilcoxon, appeals from an order granting summary judgment in favor of plaintiff, American Country Insurance Co. (American).\nThe underlying transaction involves a personal injury suit brought by defendant, Anthony Wilcoxon, who sustained personal injuries when he was struck by a Checker taxi while he was a pedestrian on a Chicago sidewalk. Checker leased the cab to Willie White for a 24-hour period. White permitted David Overstreet to operate the cab. Overstreet allegedly drove the cab onto the sidewalk and injured Wilcoxon. The personal injury action filed by Wilcoxon is pending in the circuit court of Cook County and is not involved in this appeal.\nPlaintiff filed a complaint for declaratory judgment against Checker, the owner of the cab; Overstreet, the driver of the cab; and Wilcoxon, the injured pedestrian. White, who leased the cab from Checker and permitted Overstreet to use the cab, was not sued. Plaintiff sought and obtained summary judgment declaring that it was not required to pay or indemnify for Wilcoxon\u2019s injuries pursuant to a bond which it issued to Checker in accordance with the Illinois financial responsibility statute. Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 101 et seq.\nThree affidavits were presented in support of plaintiff\u2019s motion for summary judgment. Plaintiff\u2019s president verified the authenticity of the bond issued to Checker. The other two affidavits were from the lease manager and personnel manager of Checker, who verified the authenticity of the 24-hour lease from Checker to White and the fact that Overstreet, the driver, was not an employee or lessee of Checker and was a stranger to Checker. Having provided plaintiff with these essential affidavits, Checker, as a defendant, filed an appearance but failed to answer plaintiff\u2019s complaint or otherwise plead, and permitted a default judgment to be entered against it.\nDefendant Overstreet failed to appear or answer and was also defaulted. Defendant Wilcoxon, the injured pedestrian, appeared and opposed plaintiff\u2019s action and is the only party appealing the order of the circuit court of Cook County.\nThe Illinois financial responsibility statute requires that the owner of a cab must provide proof of financial responsibility, by way of bond, certificate of self-insurance or insurance policy, to cover liability for personal injury and property damage in certain amounts and for the satisfaction of any judgment that may be rendered against the \u201cowner or any person operating the motor vehicle with the owner\u2019s express or implied consent.\u201d Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 101 et seq.\nThe bond issued to Checker by American, pursuant to the requirements of the Illinois financial responsibility statute, provides that American will satisfy any judgment \u201cresulting from negligence of such Owner/Principal, his agent, or any person operating the motor vehicle with his express or implied consent.\u201d The bond document does not make reference to any rider. However, an unsigned, untitled page, which is alleged to be a rider to the bond, provides in part:\n\u201c(c) Express or implied consent is a motor vehicle described in this instrument which is being used with the express or implied consent of CHECKER when it is being used by:\n(i) an employee of CHECKER while operating said motor vehicle in the course and scope of his employment;\n(ii) a lessee of CHECKER while operating said motor vehicle pursuant to a written lease.\nThis bond shall not apply to any permitte [sic], sublessee, or bailee or an employee or lessee of CHECKER. It is the specifice [sic] agreement and intention of CALUMET and CHECKER that the doctrine known as the Initial Permission Doctrine shall not apply.\u201d\nAlthough somewhat unorthodox in form, for the purpose of this opinion we will assume that the rider is expressly incorporated into and became a part of the bond.\nWhat has become known as the \u201cinitial permission doctrine\u201d was first announced in Illinois in the case of Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 297 N.E.2d 163. Justice Schaefer explained the rationale of the initial permission doctrine in United States Fidelity and Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 356 N.E.2d 78, as follows:\n\u201cIn Maryland Casualty the owner of a car had given his son permission to drive it, but had told him that he must not allow anyone else to do so. Notwithstanding this injunction, the son allowed a friend to drive the car, and while the friend was driving it, the car collided with another vehicle. ***\nWe held that the owner\u2019s policy applied, on the ground that when the owner has given permission to someone else to use his car, the owner\u2019s insurance will cover not only the first user, but others whom the first user permits to drive the car, even though the granting of such permission violates the terms on which the owner made the car available.\nThe rationale of Maryland Casualty, as the appellate court in the present case recognized, was \u2018to bring simplicity to what had become a complex area of the law necessitating frequent litigation and to further implement a policy long adhered to regarding the benefit received by the public from private insurance contracts.\u2019 [Citation.]\u201d 64 Ill. 2d 239, 242, 356 N.E.2d 78.\nThe 24-hour written lease between Checker and White provided that Checker would provide insurance required by State law and Chicago city ordinance \u201ccovering lessor and lessee\u201d in the limits prescribed by law. It also provides that the lessee agrees to be \u201cthe sole driver of the leased vehicle.\u201d\nIt is undisputed that Overstreet operated the cab, during the 24-hour term of the lease, when Wilcoxon was injured. For purposes of his ruling, the trial judge found that Overstreet operated the cab with the express permission of the lessee White.\nThe issue presented is whether the trial court correctly determined that financial responsibility coverage did not extend to the driver of the cab.\nBy enacting section 89 \u2014 101 et seq. (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 101 et seq.), the Illinois legislature declared that it shall be unlawful for any person, firm or corporation to operate any motor vehicle in any incorporated city in this State for the carriage of passengers for hire \u201cunless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. *** If the person operating such motor vehicle is not the owner, then proof of financial responsibility filed hereunder must provide that the owner is primarily liable.\u201d (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 101.) Proof of financial responsibility may be given by filing an insurance policy, certificate of self-insurance or surety bond with the Secretary of State. Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 102.\nIn this case, Checker elected to prove financial responsibility by filing a surety bond in which Checker was the principal and the plaintiff, American, was the surety. Under section 8 \u2014 104 (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 104), the bond shall provide for the payment of each judgment by the owner within 30 days after it becomes final \u201cprovided each judgment shall have been rendered against such owner or any person operating the motor vehicle with the owner\u2019s express or implied consent.\u201d\nProof of financial responsibility is a condition to the issuance of an Illinois license (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 114), and failure to comply is a Class A misdemeanor (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 116).\nThe bond filed by Checker as principal and American as surety recites that it is provided as proof of financial responsibility of Checker for the issuance of a State license pursuant to the statute. (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 101 et seq.) It tracks the language of the statute in providing for the payment of any final judgment against Checker or any person operating the motor vehicle with Checker\u2019s \u201cexpress or implied consent.\u201d It concludes that the condition of the bond is that Checker \u201cshall perform its obligations under the aforesaid provisions of the Motor Vehicle Code.\u201d\nWhat we will assume to be a rider to the bond, but which does not bear the conventional indicia of a rider, states that Checker, as principal, and American, as surety, agree that \u201cthe Initial Permission Doctrine shall not apply.\u201d\nThe trial court expressly found that Overstreet, the tortfeasor, was operating the cab with the consent of Willie White, the lessee of the cab. The 24-hour lease, expiring December 6, 1983, at 6 a.m., provides that the lessee agrees \u201c[t]o be the sole driver of the leased vehicle.\u201d\nA\nWe will first consider the effect of the lease provision requiring White to be the sole driver of the cab. Although there is no Illinois case on point, cases from other jurisdictions with similar financial responsibility statutes provide guidance.\nIn Motor Vehicle Accident Indemnification Corp. v. Continental National American Group Co. (1974), 35 N.Y.2d 260, 319 N.E.2d 182, 360 N.Y.S.2d 859, Discount Rent-A-Car (Discount) was the named insured under a liability policy issued by Continental pursuant to a New York financial responsibility statute which is substantially the same as the Illinois statute. Discount leased the vehicle to Anderson under a written lease agreement which contained a clause that the vehicle would be driven by the lessee or an immediate adult member of his family. Anderson permitted a person to operate the vehicle who was not a permitted user under the lease agreement. The New York Court of Appeals held that the insurance company was financially responsible for the accident which occurred when the driver operated the leased vehicle with the express permission of the lessee, even if driven in violation of a private rental agreement between the rental agency and the lessee.\nThe New York Court of Appeals reasoned that in recognition of the fact that automobile leasing has become a widespread business and it was inevitable that leased vehicles would become involved in their share of accidents, \u201cthe Legislature has required rental agencies to file a financial security bond as a certificate of self-insurance prior to registering their vehicles [citation].\u201d (35 N.Y.2d 260, 263, 319 N.E.2d 182, 184, 360 N.Y.2d 859, 861.) Restrictions in car rental agreements violate public policy because \u201c[a] slight deviation from such a restrictive lease could render an injured victim devoid of adequate protection, which is contrary to the legislative intent envisaged by section 388 of the Vehicle and Traffic Law.\u201d (35 N.Y.2d 260, 264, 319 N.E.2d 182, 184, 360 N.Y.2d 859, 862.) The court concluded:\n\u201cDiscount, and in turn, Continental, knew or certainly should have known that the probabilities that vehicles coming into the hands of another person are entirely too great for respondent to evade responsibility. We hold, in the circumstances of this case, that Discount gave constructive consent to Sills who drove its vehicle with the consent of its lessee. To put it another way, these considerations of sound public policy will prevent the evasion of the liability of one leasing cars for profit (and, in turn, his insurer) via the attempted device of restrictions on or conditions of use which run counter to the recognized realities and, in a measure, disguise the transaction. Since, as is conceded, Anderson gave his consent to Sills to operate the rental vehicle, we find that he was operating it with the constructive consent of Discount and, perforce, with the \u2018permission\u2019 envisioned by the provisions of section 388. It follows that Sills was insured under the policy issued by Continental which is held to be responsible for Sills\u2019 defense and for paying the resulting judgment.\u201d 35 N.Y.2d 260, 264-65, 319 N.E.2d 182, 185, 360 N.Y.2d 859, 862-63.\nThis issue also came before the California Supreme Court in 1966. Hertz leased a car under a written agreement which restricted the use of the vehicle to the lessee, his family or an employer or employee of the lessee. The car was involved in an accident while operated by an unauthorized person with the express consent of the lessee. California also had a financial responsibility law which was substantially the same as the Illinois statute. In Atlantic National Insurance Co. v. Armstrong (1966), 65 Cal. 2d 100, 416 P.2d 801, 52 Cal. Rptr. 569, the California Supreme Court held that the driver \u201ccould not be excluded from coverage under the policy. Vehicle Code section 415 requires motor vehicle liability policies to provide coverage for the liability not only of the named insured but of any other person using the vehicle with the express or implied permission of the insured.\u201d (65 Cal. 2d 100, 105, 416 P.2d 801, 804, 52 Cal. Rptr. 569, 572.) The court concluded: \u201cAs has been said with regard to an analogous issue, \u2018The statute is founded upon principles of public policy, and an anomalous situation would be created if the rights of third parties, for whose protection the law was adopted, could be hindered, delayed, or defeated by *** private agreements ***.\u2019 [Citation.]\u201d 65 Cal. 2d 100, 106-07, 416 P.2d 801, 806, 52 Cal. Rptr. 569, 574.\nThe underlying principle is that the protection of the public under financial responsibility statutes transcends the private agreement between the parties, where the agreement runs counter to sound public policy. In the case at bar, public policy considerations are greater than those involved in the New York and California cases. Those cases involved a lease for profit of private motor vehicles. Here, we also have a lease of vehicles for profit with the added public concern of having the vehicles used for a public purpose rather than a private purpose. The protection of the public in the operations of those engaged in the transportation of passengers for hire has always been a matter of utmost public concern.\nIn the case before us, Checker leased the cab to White for a 24-hour period and limited the operation of the cab to him. Although White is paying rent for 24 hours, it would not be reasonable to expect that he physically could, or should, operate the cab for 24 hours. It is generally known that taxi companies keep their own cabs in operation around the clock but do not require the same driver to work a 24-hour shift. Since it is the function of a taxi company to provide efficient and safe transportation to the public according to State law and city ordinance, it is not contemplated that a cab remain idle nor that the driver operate the cab for a period of time that may impair his efficiency and endanger public safety.\nApplying the public interest principle espoused in the New York and California cases, we conclude that Checker gave its constructive consent to White to permit Overstreet to operate the cab in spite of the lease provision to the contrary. Thus, the initial permission rule is applied, notwithstanding the prohibition in the lease.\nB\nHaving decided that under the facts of this case the initial permission doctrine can be applied notwithstanding the limitation of use in the lease, we now consider whether the rider provision in the bond can effectively negate that doctrine.\nFinancial responsibility statutes governing public transportation are enacted for the protection of passengers and members of the public who may be injured by the operators of such vehicles. Statutory bonds must be construed most strongly against the surety to accomplish the purpose of the statute. The State and the public are the true beneficiaries of the bond. 12A G. Couch, Insurance sec. 45:770 (rev. ed. 1981).\nAn omnibus coverage clause in a bond or insurance policy can be expressed in terms such as \u201cwith the express or implied consent\u201d of the owner. (12 G. Couch, Insurance sec. 45:319 (rev. ed 1981).) This omnibus coverage language is fotrnd in section 8 \u2014 104 (Ill. Rev. Stat. 1983, ch. 95\u00bd, par. 8 \u2014 104). In effect, the Illinois legislature has codified the initial permission doctrine. Checker and its surety cannot, in a private agreement allegedly included in the bond rider, repeal or diminish the effect of the Illinois statute designed to protect the public. The principles of law are well stated in 12A G. Couch, Insurance sec. 45:738 (rev. ed. 1981): \u201cWhere there is a conflict between the provisions of the policy and the financial responsibility act, the statute controls and the policy provision in question is void, for the agreement of the insurer and the insured in the policy cannot operate to cut off the rights of injured third persons. The financial responsibility act is read into and forms part of a policy of insurance required thereby.\u201d\nIn Faltysek v. Kloepfer (1971), 3 Ill. App. 3d 8, 279 N.E.2d 105, this court held that the Illinois statute \u201cmanifest[s] a legislative intent that as to a motor vehicle used in transporting passengers for hire, the owner shall insure himself and any person who operates the vehicle with his express or implied permission against any injury negligently caused a member of the public.\u201d (3 Ill. App. 3d 8, 12, 279 N.E.2d 105.) We concluded that the cab company cannot obtain the benefits of a license to carry passengers for hire and \u201ccontract away the liability and responsibility the law imposes.\u201d 3 Ill. App. 3d 8, 12, 279 N.E.2d 105.\nTherefore, even if the rider is considered a part of the bond, it cannot restrict, reduce or avoid the provisions of the statute.\nBased on the foregoing, the judgment of the circuit court of Cook County is reversed.\nReversed.\nSCARIANO, P.J., and HARTMAN, J., concur.", "type": "majority", "author": "JUSTICE BILANDIC" } ], "attorneys": [ "Edward J. Bradley, Jr., of Bradley, Bradley & Nedderman, of Chicago, for appellant.", "Alvin R. Becker and Steven P. Garmisa, both of Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago, for appellee." ], "corrections": "", "head_matter": "AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff-Appellee, v. ANTHONY WILCOXON, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 86 \u2014 2493\nOpinion filed August 11, 1987.\nRehearing denied September 8, 1987.\nEdward J. Bradley, Jr., of Bradley, Bradley & Nedderman, of Chicago, for appellant.\nAlvin R. Becker and Steven P. Garmisa, both of Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago, for appellee." }, "file_name": "0884-01", "first_page_order": 906, "last_page_order": 913 }