FIRST DIVISION
May 23, 2005

JUSTICE GORDON delivered the opinion of the court:

Susanne Kim, individually and as special administrator of the estate of her late husband,Sam Kim, appeals the grant of summary judgment to Mercury Indemnity Company of Illinois inits declaratory judgment action where it sought a declaration of no coverage as to the Kims'uninsured motorist claims. We affirm.

FACTUAL BACKGROUND

Hong Yel Khang, of Lindenhurst, Illinois, drove a 1999 Hyundai Sonata in Munsing,Michigan, on September 15, 2001. Accompanying her in the car as passengers were her husband,Bokim Khang, as well as the Kims. Hong Yel failed to obey a stop sign at the intersection of twohighways and drove her car into another (the second car). The force of the impact forced that carto roll onto its side and into the path of other oncoming traffic, where it was struck again by athird car. The local sheriff's department and fire department responded to the scene. Approaching the crash site, a fire truck driver lost control of his vehicle and struck a sheriff'sdeputy. As a result of these cumulative collisions three people died: Sam Kim, the deputy, and apassenger in the second car. The driver of the second car, Susanne Kim and Bokim Khang werealso seriously injured.

The Khangs' vehicle was insured through Mercury. Bokim was the named insured, andHong Yel was listed as an additional driver. The policy had bodily injury liability coverage limitsof $100,000 per person and $300,000 per accident, as well as uninsured and underinsuredmotorist coverage with the same limits.

After investigating the incident, Mercury concluded that four of the crash victims, thethree deceased and Susanne Kim, each suffered individual damages of at least $300,000, themaximum liability insurance payout available to all of the victims under the liability coverage. Mercury, therefore, attempted to prorate the $300,000 between the six victims, offering toprovide $71,250 each to the estate of Sam Kim, the estate of the deputy, the estate of the secondcar's passenger, and to Susanne Kim, as well as offering $12,000 to Bokim Khang and $3,000 tothe driver of the second car. The Kims, however, also sought to recover $28,500 each under theKhangs' underinsured motorist coverage, so that they would each receive the $100,000-per-person limit provided for bodily injuries.

In response to the Kims' underinsured motorist claims, Mercury filed this declaratoryjudgment action.⁽¹⁾ In its complaint, Mercury contended that underinsured motorist coverage wasunavailable to the Kims as the Khangs' car was not an underinsured vehicle as defined in thepolicy. Specifically, Mercury relied on the following exclusion:

"An underinsured motor vehicle does not include a land motor vehicle:

1. insured under the liability coverage of this policy."

In their countercomplaint, the Kims contended that the exclusion violated the provision ofthe Insurance Code requiring the inclusion of underinsured motorist coverage and defining"underinsured motor vehicle," which provided as follows:

"For the purposes of this Code, the term 'underinsured motorvehicle' means a motor vehicle whose ownership, maintenance or use hasresulted in bodily injury or death of the insured, as defined in the policy,and for which the sum of the limits of liability under all bodily injuryliability insurance policies or under bonds or other security required to bemaintained under Illinois law applicable to the driver or to the person ororganization legally responsible for such vehicle and applicable to thevehicle, is less than the limits for underinsured coverage provided theinsured as defined in the policy at the time of the accident. The limits ofliability for an insurer providing underinsured motorist coverage shall bethe limits of such coverage, less those amounts actually recovered underthe applicable bodily injury insurance policies, bonds or other securitymaintained on the underinsured motor vehicle. However, the maximumamount payable by the underinsured motorist coverage carrier shall notexceed the amount by which the limits of the underinsured motoristcoverage exceeds the limits of the bodily injury liability insurance of theowner or operator of the underinsured motor vehicle." 215 ILCS 5/143a-2(4) (West 2000).

As shall be discussed further below, the Kims also argued that their receipt ofunderinsured motorist benefits was mandated under Cummins v. Country Mutual Insurance Co.,178 Ill. 2d 474 (1997), which the Kims represented as holding that a car was considered to beunderinsured according to statute when the amount of liability benefits received by an injuredparty was less than the policy limits for underinsured motorist coverage . Finally, the Kimsalleged that Mercury intended to pay liability and uninsured motorist coverage in claims such astheirs as evidenced by subsequent policy provisions stating:

"Limits of Liability-Bodily Injury

Caused by an Uninsured or Underinsured Motorist

Regardless of the number of cars insured by us or others, separatepremiums paid, insureds, claims made, claimants, policies or vehiclesinvolved or lawsuits brought, the most we will pay is the limit of liaiblityshown in the Declarations subject to the following:

* * *

3. Any amount payable shall be reduced by any amount paid or payable toor for the insured:

* * *

b. for bodily injury under the liability coverage of this policy ***.

* * *

4. Any payments made to a person for bodily injury under the uninsured orunderinsured motorist coverage shall reduce any amount payable to thatperson under the bodily injury liability coverage of this policy."

The Kims argued that, at the very least, these later provisions created an ambiguity in the policyas a whole that required a construction in favor of coverage for them under the underinsuredmotorist provisions.

In response to the arguments of the Kims' countercomplaint, Mercury argued, amongother things, that Cummins had been superseded by an amendment to the underinsured motorvehicle coverage statute. Mercury contended that under the amendment, as recognized inThurman v. Grinnell Mutual Reinsurance Co., 327 Ill. App. 3d 920 (2002), an insurer's limit ofliability to an injured party was restricted to the difference between the policy limits of anyapplicable liability coverage and the limits of the underinsured motorist coverage. Since theKhangs' liability and underinsured motorist policy limits were identical, Mercury argued that nounderinsured motorist payments could be due to the Kims by statute.

Both sides moved for summary judgment and the circuit court granted that relief toMercury. The Kims appeal presenting the arguments discussed above as well as contending thatIllinois' underinsured motorist coverage statute violates constitutional due process and thefreedom to contract. ANALYSIS

The Kims first contend that the exclusion of a vehicle insured under the liability coverageof a policy from the underinsured motorist coverage would violate the provisions of theunderinsured motorist statute and is therefore unenforceable. For the following reasons, wedisagree.

While there is no particular case upholding the application of the insured car exclusion toprohibit the stacking of underinsured and liability coverage under the same policy, Illinois courtstwice upheld the application of a named driver exclusion⁽²⁾ to preclude uninsured motorist coveragein Heritage Insurance Co. of America v. Phelan, 59 Ill. 2d 389 (1974), and Rockford MutualInsurance Co. v. Economy Fire & Casualty Co., 217 Ill. App. 3d 181 (1991).

The Phelan court observed:

"It is clear from the holdings of Barnes[v. Powell, 49 Ill. 2d 449,454 (1971)], Doxtater[v. State Farm Automobile Insurance Co., 8 Ill. App.3d 547 (1972),] and [Madison County Automobile Insurance Co.v.]Goodpasture,[49 Ill. 2d 555 (1971),] and from the language of thestatute itself that the legislative intent was to provide extensive uninsured-motorist protection for those who are 'insureds' under an automobileliability policy. But neither the statute nor any of these decisions places anyrestriction on the right of the parties to an insurance contract to agree onwhich persons are to be the 'insureds' under an automobile insurancepolicy. It is only after the parties designate the 'insureds' that the statuteand case law become applicable and prohibit an insurance company fromeither directly or indirectly denying uninsured-motorist coverage to an'insured.' " Phelan, 59 Ill. 2d at 395.

In Rockford Mutual, an Economy policy otherwise covering the Fred family automobileprecluded all coverage if such vehicle was operated by John Durbin. Rockford Mutual, 217 Ill.App. 3d at 183. While driving that vehicle, Durbin caused a crash killing his passenger, LarrySneed. Rockford Mutual, 217 Ill. App. 3d at 183-84. Sneed's mother, as administrator of hisestate, made a liability claim against Economy and, after it was denied based on the named insuredexclusion, sought uninsured motorist benefits through her own Rockford Mutual policy that alsocovered her son as a member of her household. Rockford Mutual, 217 Ill. App. 3d at 183. Rockford Mutual, in turn, sought a judicial declaration that uninsured motorist benefits wereactually due under the Economy policy and that the attempted restriction of the Economycoverage violated the uninsured motorist statute. Rockford Mutual, 217 Ill. App. 3d at 183.

In rejecting Rockford Mutual's argument, the appellate court reasoned:

"[T]he purpose of the statute, and the public policy expressed therein, is toprovide protection to policyholders and named insureds for whomprotection is specifically contracted, and not to provide protection to thirdparties who are strangers to the contract of insurance. Policyholders andnamed insureds may recover under their own insurance policy when theyare injured as a result of an accident in or with an uninsured motorist orvehicle, just as an injured third party may recover under his or her ownuninsured motorist insurance if he or she is injured as a result of anaccident in or with an uninsured motorist or vehicle. Thus, if a passenger isinjured in an uninsured vehicle, as in the instant case, that passenger mustlook to his own insurance policy for recovery under its uninsured motoristprovision. Because this was the intention and purpose of the statute, itdoes not violate public policy to recognize the named driver exclusionendorsement in the Economy policy, which renders the vehicle insuredthereunder an uninsured vehicle, treat it as such, and require Grace to seekrecovery under her own Rockford policy for the death of her son." (Emphasis in original.) Rockford Mutual, 217 Ill. App. 3d at 186-87.

While there have been no cases in Illinois specifically addressing the validity of the insuredvehicle exclusion from underinsured motorist coverage, there does not appear to be a rationalbasis on which to distinguish between an exclusion based on a named driver and a named insuredvehicle. In fact, this result, which permits the insured vehicle exclusion to prevent the stacking ofunderinsured motorist coverage on to liability coverage under a single policy, has been reached bythe overwhelming majority of our sister states that have considered the issue. See, e.g., StateFarm Mutual Automobile Insurance Co. v. Shahan, 141 F.3d 819 (8th Cir. 1998) (applyingMissouri law); Kang v. State Farm Mutual Automobile Insurance Co., 72 Haw. 251, 815 P.2d1020 (1991); Sullivan v. State Farm Mutual Automobile Insurance Co., 513 So. 2d 992 (Ala.1987); Millers Casualty Insurance Co. of Texas v. Briggs, 100 Wash. 2d 1, 665 P.2d 891 (1983);Breaux v. Government Employees Insurance Co., 369 So. 2d 1335 (La. 1979) (all approving ofthe insured car exclusion to prevent stacking of uninsured or underinsured coverages on top ofliability coverage); see also Cantrell v. Cantrell, 213 W. Va. 372, 582 S.E.2d 819 (2003); AmicaMutual Insurance Co. v. Streicker, 583 A.2d 550 (R.I. 1990); Myers v. State Farm MutualAutomobile Insurance Co., 336 N.W.2d 288 (Minn. 1983); Bulone v. United ServicesAutomobile Ass'n, 660 So. 2d 399 (Fla. Dist. Ct. App. 1995); Pridham v. State Farm MutualInsurance Co., 903 S.W.2d 909 (Ky. App. 1995); Jones v. State Farm Mutual AutomobileInsurance Co., 635 N.E.2d 200 (Ind. App. 1994); Koshiol v. American Family Mutual InsuranceCo., 171 Wis. 2d 192, 491 N.W.2d 776 (Wis. App. 1992); Newkirk v. United ServicesAutomobile Ass'n, 388 Pa. Super. 54, 564 A.2d 1263 (1989) (all upholding the enforcement ofsimilar exclusions, excepting automobiles owned by the insured, or family cars, from the policydefinition of uninsured motor vehicle to prevent the stacking of underinsured or uninsuredmotorist coverages on top of liability coverage); see also Terranova v. State Farm MutualAutomobile Insurance Co., 800 P.2d 58 (Colo. 1990); Hilyard v. Estate of Clearwater, 240 Kan.362, 729 P.2d 1195 (1986); Turcotte v. Foremost Insurance Co., 460 A.2d 1369 (Me. 1983); Aitken v. State Farm Mutual Automobile Insurance Co., 404 So. 2d 1040 (Miss. 1981); Holt v.State Farm Mutual Automobile Insurance Co., 486 S.W.2d 734 (Tenn. 1972); Locey v. FarmersInsurance Co. of Idaho, 115 Idaho 24, 764 P.2d 101 (Idaho App. 1988) (approving of insuredcar, owned car, or family car exclusions even when liability coverage was also precluded throughother exclusions); see also Davis v. Bean, 804 F.2d 1018 (8th Cir. 1986) (applying Arkansaslaw); Lofberg v. Aetna Casualty & Surety Co., 264 Cal. App. 2d 306, 70 Cal. Rptr. 269 (1968);Barras v. State Farm Mutual Automobile Insurance Co., 118 Ga. App. 348, 163 S.E.2d 759(1968) (precluding uninsured motorist coverage by following uninsured motorist statutes thatdefined or contemplated uninsured motor vehicles as autos other than those owned by theinsured); Wright v. State Farm Mutual Automobile Insurance Co., 152 Or. App. 101, 952 P.2d 73(1998), reversed in part on other grounds 332 Or. 1, 22 P.3d 744 (2001) (enforcing the insuredcar exclusion included in the policy and contained in the state's underinsured motorist coveragestatute); Ohio Rev. Code Ann.