Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County, Illinois, County
Department Chancery Division No. 12 CH 38582Honorable Sophia
H. Hall, Judge Presiding.
PRESIDING JUSTICE MASON delivered the judgment of the court,
with opinion. Justice Hyman concurred in the judgment and
opinion. Justice Pucinski specially concurred, with opinion.
1 Plaintiff Mary Carmichael was injured in a car accident
while she was a passenger in a van owned and operated by
defendant Professional Transportation, Inc. (PTI). Carmichael
brought suit against PTI, alleging that PTI failed to obtain
the required limits of uninsured (UM) and underinsured (UIM)
coverage under section 8-101(c) of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/8-101(c) (West 2010)). PTI argued
as an affirmative defense that no private right of action
could be implied under section 8-101(c). PTI also filed the
counterclaim at issue in this appeal, challenging the
constitutionality of section 8-101(c).
2 The trial court found that a private right of action could
be implied under section 8-101(c) and dismissed PTI's
counterclaim, finding that the section survived
constitutional scrutiny. Following Carmichael's voluntary
dismissal of her claim against PTI, PTI appealed the
dismissal of its counterclaim. We find that we do not need to
reach the constitutional issues raised by PTI because section
8-101(c) does not give rise to a private right of action.
Therefore, Carmichael's complaint against PTI should have
been dismissed. Accordingly, PTI's counterclaim is moot.
4 Carmichael, a Union Pacific Railroad Company (Union
Pacific) employee, was injured when the van in which she was
a passenger collided with a vehicle driven by Dwayne Bell.
The six-passenger van was owned and operated by PTI and was
used to transport Union Pacific employees between railroad
jobsites pursuant to a service contract between PTI and Union
Pacific. Although Carmichael originally sought recovery for
her injuries in a lawsuit against PTI, Bell, and others, she
dismissed PTI after it became apparent that the accident was
caused solely by Bell's negligence.
5 Bell carried the minimum liability coverage required under
the Vehicle Code at the time: $20, 000 per person and $40,
000 per occurrence. Id. § 7-203. Carmichael
settled with Bell for the $20, 000 per-person policy limit.
PTI was insured by defendant ACE American Insurance Company
(ACE). The ACE policy provided for $5 million in liability
limits, but provided the minimum UM/UIM coverage of $20, 000
per person and $40, 000 per occurrence. Consequently, no
additional sums were available to Carmichael under the ACE
6 In October 2012, Carmichael filed this action against PTI,
ACE, and Union Pacific. As it relates to PTI,
Carmichael's complaint sought a declaration that PTI
should be liable for her damages arising from the accident in
excess of $20, 000 up to $250, 000 based on her allegation
that PTI failed to obtain the required limits of UM/UIM
coverage under section 8-101(c) of the Vehicle Code.
Id. § 8-101(c). That section, amended in 2006,
requires "contract carrier[s] transporting employees in
the course of their employment" in a vehicle
"designed to carry 15 or fewer passengers" to
obtain UM/UIM coverage of not less than $250, 000 per person.
Id. Carmichael alleged that PTI's six-person
van, used to transport her in the course of her employment,
fell into the foregoing category and that PTI's violation
of this statutory provision gave rise to a private right of
action, entitling her to recover from PTI the difference
between her $20, 000 settlement with Bell and the $250, 000
UIM limit mandated by the statute.
7 PTI raised a number of defenses to Carmichael's
complaint, including that no private right of action could be
implied under section 8-101(c) and that the amendment to
section 8-101(c) violated the special legislation, equal
protection, due process, and commerce clauses of the state
and federal constitutions. PTI also filed a counterclaim in
which it challenged the constitutionality of the amendment on
the same grounds and asserted that a related penal statute,
section 8-116 of the Vehicle Code (id. § 8-116
(providing that failure to comply with, inter alia,
the Vehicle Code's minimum insurance requirements
constitutes a Class A misdemeanor)), was constitutionally
infirm for the same reasons. PTI joined the State of Illinois
as a counterclaim defendant.
8 The State moved to dismiss PTI's counterclaim, arguing
both the insufficiency of PTI's allegations under section
2-615 and the merits of PTI's constitutional challenges
under section 2-619 of the Code of Civil Procedure (735 ILCS
5/2-615, 2-619 (West 2012)). The State pointed out that the
proper procedure in the event of a challenge to a statute on
constitutional grounds was to provide notice of the challenge
and "afford the State, political subdivision, agency or
officer, as the case may be, the opportunity, but not the
obligation, to intervene in the cause or proceeding for the
purpose of defending the law or regulation challenged."
Ill. S.Ct. R. 19(c) (eff. Sept. 1, 2006). In addition to
defending the amendment to section 8-101(c) against PTI's
constitutional challenges, the State requested that the court
defer addressing such issues until it resolved whether
Carmichael was entitled to maintain a private right of action
for violation of the statute's provisions.
9 PTI later filed a motion to dismiss Carmichael's
complaint, in which it raised the issue of Carmichael's
right to sue. Although the trial court initially directed the
parties to brief PTI's motion, the court proceeded to
first resolve the constitutional issues. On January 30, 2015,
the court granted the State's motion to dismiss PTI's
counterclaim, finding that the amendment survived
constitutional scrutiny. The court then addressed PTI's
motion to dismiss Carmichael's complaint. On July 24,
2015, the court denied PTI's motion to dismiss, finding
that Carmichael could pursue a claim for violation of section
801(c)'s mandated UM/UIM coverage.
10 After its motion to reconsider was denied and after
Carmichael eventually voluntarily dismissed her remaining
claims, PTI timely filed its notice of appeal. Carmichael
originally filed a separate notice of appeal from the
dismissal of her claim against ACE, but she dismissed that
appeal on August 9, 2017. Carmichael refiled her complaint