text:
    WARREN E. NIEBURG, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT No. 522, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0127
    Opinion filed July 10, 1991.

      G. Richard Jones and Charlene N. Kass, both of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellant.
    Michael J. Reagan, of Kassly, Bone, Becker, Dix, Reagan & Young, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Warren E. Nieburg, filed a complaint on January 28, 1982, against defendant, Board of Trustees of Community College District No. 522 (Board), for an alleged breach of contract. Plaintiff claimed that he had “retired” from his position with Belleville Area College (BAC) and was entitled to certain benefits. Defendant filed a motion for summary judgment arguing that plaintiff had not “retired” and was not entitled to all the benefits claimed. The trial court granted defendant’s summary judgment motion, but on an earlier appeal this court concluded that the contract term “retirement” was ambiguous and that summary judgment was inappropriate. (Nieburg v. Board of Trustees (1987), 163 Ill. App. 3d 1163, 529 N.E.2d 105 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23).) The cause was remanded to the trial court for further proceedings. On remand the trial court entered judgment in favor of the defendant after a bench trial. Plaintiff appeals and presents the following issues:

(1) Whether the trial court erred in finding that an accord and satisfaction occurred.

(2) Whether the trial court erred when it refused to admit evidence relating to the retirements of Drs. Stone and Washburn to determine the meaning of the contract term “retirement.”

(3) Whether the trial court’s conclusion that plaintiff had not “retired” was against the manifest weight of the evidence.

We affirm the trial court’s ruling on the first of these issues and, therefore, need not consider the others.

The plaintiff began his employment with RAC on August 17, 1970, and worked as an administrator until November 4, 1981. On October 5, 1981, he submitted a letter indicating that he was “retiring” in 30 days. Plaintiff claimed benefits under his most recent two-year contract as a professional services administrator which was dated December 1, 1979. Terms and conditions of his employment were designated in the “Personnel Policies for Administrators” and approved by the Board. The relevant portion of these policies provided:

“HI. Sick Leave.

A. Each Administrator shall receive credit for one and one-third days of sick leave for each month of service to the district.

B. The accumulation of sick leave shall be unlimited.

C. Sick leave may be used at full pay for illness, disability, quarantine, treatments, and diagnostic examination of his person or family.

D. Upon retirement or death, the administrator or his beneficiary shall receive compensation for his accrued sick leave at the rate of 100% of the cash value of his current daily salary to a maximum of 100 days.

E. Any administrator whose employment is terminated, either voluntarily or involuntarily, shall receive compensation equivalent to 20% of his accrued sick leave to a maximum of 20 days.”

Plaintiff’s October 5 letter (plaintiff’s exhibit 3) provided in part:

“Please accept this letter as a petition that I may be released from my contract with the Board of Trustees 30 days from the date you receive this letter.
Please be advised that I am retiring from my profession and entering upon retirement effective upon my severance from your institution. Please be further advised that I do claim, therefore, compensation for my accrued sick leave at the rate of 100% of the cash value of my current daily salary to a maximum of 100 days as provided under VII [sic] D.
I further claim, under VII [sic] E, separation compensation equivalent to 20% of my accrued sick leave to a maximum of 20 days in view of the fact that my employment as an administrator is, with this letter, terminated, voluntarily.
Of course, I expect to receive my vacation pay for 92 days and for compensatory time in the amount of 5 days.”

Dr. Wissore, BAC president, informed plaintiff by letter on October 22, 1981, that he was not entitled to the full 120 days of accrued sick leave because he was not eligible to retire. The October 22 letter (plaintiff’s exhibit 4) provides as follows:

“Your request to be released from your current contract effective November 4, 1981[,] is accepted. We regret to inform you that you do not qualify for the 100 percent accrued sick leave compensation provided for in the current PERSONNEL POLICIES FOR ADMINISTRATORS because you are not at this time eligible for retirement benefits under the State Universities Retirement System. The 100 percent accrued sick leave compensation provision is set forth in Paragraph III-D of the current PERSONNEL POLICIES FOR ADMINISTRATORS.
You do, however, qualify for the 20 percent accrued sick leave separation compensation provided for in the current PERSONNEL POLICIES FOR ADMINISTRATORS. The 20 percent accrued sick leave separation compensation provision is set forth in Paragraph III-E of the current PERSONNEL POLICIES FOR ADMINISTRATORS.
The compensations set forth in Paragraphs III-D and III-E are, of course, mutually exclusive; thus, it is not possible under any circumstances for an individual to qualify for benefits under both Paragraph III-D and Paragraph III-E so as to be entitled to compensation for a maximum 120 days of accrued sick leave. You will be paid vacation pay for 92 days and compensatory time for five days.”

On November 30 plaintiff received a check in the amount of $3,869.27 which he subsequently cashed. Plaintiff asserted at trial that before cashing the check he informed Carol Blue, a BAC payroll accountant, that he considered the check to be only a partial payment of his claim.

An accord is an agreement or settlement of an existing dispute or controversy which presupposes a disagreement over the amount due (Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) When there is an honest dispute between the parties, a tender by the debtor, with the explicit understanding of both parties that the tendered amount is in full payment of all demands, and an acceptance of that amount by the creditor constitutes an accord and satisfaction. (Nelson v. Fire Insurance Exchange (1987), 156 Ill. App. 3d 1017, 1020, 510 N.E.2d 137, 139, appeal denied (1987), 116 Ill. 2d 562.)

“If there is a bona fide dispute as to the amount due, it makes no difference that the creditor protests that he does not accept the amount in full satisfaction. The creditor must either accept the payment with the condition or refuse.” (Nelson, 156 Ill. App. 3d at 1020, 510 N.E.2d at 139.)

The fact that a creditor does not wish to consider a check as full payment does not mean that he did not understand that the check was offered to him with the condition that it was being made in full payment. Nelson, 156 Ill. App. 3d at 1020, 510 N.E.2d at 140.

We conclude that the trial court properly determined that an accord and satisfaction occurred. The letters set forth earlier clearly reveal that there was an honest dispute over the number of accrued sick-leave days that plaintiff was entitled to receive. Plaintiff claimed that he was entitled to 120 days while the board believed that he was entitled to only 20 days. Also, there was clearly evidence to support the trial court’s finding that plaintiff accepted the check with the understanding that it was offered by the Board in full payment of the claim. We note that the original payout to plaintiff was $18,186. Plaintiff requested that approximately $12,000 of this amount be placed in a tax-sheltered annuity and that approximately $2,500 be withheld for State and Federal income taxes and for the State university retirement system. After these deductions were made, the gross amount of the check was $3,869.27. Plaintiff testified that he was aware before cashing the check that the amount covered only 20 sick days. Furthermore, plaintiff testified as follows:

“Q. Now, before you accepted this check from the college, which is Defendant’s Exhibit G, you also received Defendant’s Exhibit E, which is the letter from Dr. Wissore; is it not? In fact, it was referred to as Plaintiffs Exhibit 4 for clarity sake. Let me withdraw my exhibit. Your attorney put into evidence Plaintiffs Exhibit 4; do you recall that?
A. Yes.
Q. All right. And do you agree that that letter makes it eminently clear that the position of the college is that you only get 20 sick days, and you don’t get 20 sick days plus 80 sick days or 20 sick days plus 100 sick days?
A. This letter here was written after my letter of October the 5th.
Q. I understand that.
A. So it makes it eminently clear how they interpret the contract.
Q. All right. And after they sent you their letter indicating how they interpreted the contract, you accepted the benefits of their check dated November 30, 1981[,] in which you received only 20 sick days, isn’t that correct?
A. After conferring with the attorneys that is correct.
Q. A11 right.
A. But it in no way in following up indicates — and I want to reiterate this at the risk of being repetitious — that that was acceptance of any and all just payment.”

Plaintiff also alleged that he informed Carol Blue that his cashing the check was not a waiver of his claim to the full 120 days.

While the check was not notated “payment in full” by defendant, plaintiff’s testimony set forth above clearly reveals that he understood that it was being tendered as full payment of his claim. The fact that plaintiff did not wish to consider the check as payment in full does not mean that he did not understand that it was offered to him in full payment. (Nelson, 156 Ill. App. 3d at 1020, 510 N.E.2d at 140.) Plaintiff incorrectly equates the understanding element of accord and satisfaction -with assent. Nelson, 156 Ill. App. 3d at 1020, 510 N.E.2d at 140.

Plaintiff argues that he has two claims against defendant; one for 20 days and another for 100 days. He argues that defendant simply paid him for the undisputed 20 days and that his claim for the additional 100 days survives. We disagree.

Plaintiff cites Quaintance Associates, Inc., 95 Ill. App. 3d 818, 420 N.E.2d 567, and W.E. Erickson Construction, Inc. v. CongressKenilworth Corp. (1985), 132 Ill. App. 3d 260, 477 N.E.2d 513, in support of his position. However, his reliance on these cases is misplaced. These cases stand for the proposition that partial payment of a fixed and certain demand which is due and not in dispute is not satisfaction of the whole debt even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand. Quaintance Associates, Inc., 95 Ill. App. 3d at 821-22, 420 N.E.2d at 569-70; W.E. Erickson Construction, Inc., 132 Ill. App. 3d at 269, 420 N.E.2d at 520-21.

In this case there was no partial payment of a fixed and certain demand which was undisputably due. Plaintiff claimed that he was entitled to 120 days’ accrued sick leave, while defendant argued that he was only entitled to receive 20 days. Defendant made its position clear to plaintiff and tendered the check for 20 days which plaintiff negotiated. The trial court found that this was a payment of a disputed debt and not a partial payment of an undisputed debt, and that finding is not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON PRESIDING JUSTICE RARICK,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY JONES, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0525
    Opinion filed July 16, 1991.

      RARICK, P.J., dissenting.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant, Henry Jones, was charged by information with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2). Following a bench trial, defendant was found guilty of theft and sentenced to a term of 2V2 years in the Department of Corrections. We reverse.

The issue raised to us is whether an accused can be convicted of theft from a person if the sole charge presented in the information is armed robbery. Defendant asserts that his theft conviction was improper and void because it was neither charged in the information nor is it a lesser-included offense of armed robbery.

The offense of armed robbery is listed in Illinois Revised Statutes in article 18 of the Criminal Code of 1961, title III, part C: “Offenses Directed Against Property.” (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2.) The caption supplied by the compiler or publisher of the Illinois Revised Statutes forms no part of the official title or contents of the Act (People v. Flaherty (1947), 396 Ill. 304, 313-14, 71 N.E.2d 779, 784), and the heading of a statute cannot limit the plain meaning of the substantive portion (People v. Trigg (1968), 97 Ill. App. 2d 261, 269-70, 240 N.E.2d 130, 134).

Although Part C is entitled “Offenses Directed Against Property,” a reading of sections 18 — 1 and 18 — 2 (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 18 — 2) establishes that robbery involves the use of force or the imminent use of force against a person, and armed robbery involves the use of a dangerous weapon to take property from a person or the presence of another. Robbery is included as an offense under the definition of forcible felony in section 2 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 8) precisely because it involves the use or threat of physical force or violence against a person. Armed robbery, while captioned in Illinois Revised Statutes as a crime against property, is a forcible felony carried out against a person or in the presence of a person. Indeed, such is its history from colonial times to the present.

Theft, on the other hand (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)), is a crime against property.

In farther distinction, theft requires proof that a defendant knowingly obtained or exerted unauthorized control over property with the intention to deprive the owner permanently of the use or benefit of that property. In order to convict for robbery, however, no specific intent must be proved, general intent plus proof of force being sufficient.

The various divisions of the appellate court of this State have diverged in their opinions as to whether or not theft is a lesser-included offense of robbery. Some divisions have held that a robbery conviction can be reduced to theft even in the absence of a theft charge, basing their opinion upon the rationale that the element of specific intent is logically presumed in the taking of another’s property by force. (People v. Romo (1st Dist. 5th Div. 1980), 85 Ill. App. 3d 886, 407 N.E.2d 661; People v. Beck (1st Dist. 4th Div. 1976), 42 Ill. App. 3d 923, 356 N.E.2d 848; People v. Rivers (1st Dist. 6th Div. 1990), 194 Ill. App. 3d 193, 550 N.E.2d 1179; People v. Tolentino (1st Dist. 3d Div. 1966), 68 Ill. App. 2d 480, 216 N.E.2d 191.) Other divisions, in contrast, have held that the element of specific intent to deprive an owner permanently of the use or benefit of property is what distinguishes theft from robbery, making it a separate and distinct crime. People v. Kimble (1st Dist. 3d Div. 1980), 90 Ill. App. 3d 999, 414 N.E.2d 135; Peo ple v. Gray (5th Dist. 1980), 80 Ill. App. 3d 817, 400 N.E.2d 473; People v. Pack (5th Dist. 1976), 34 Ill. App. 3d 894, 341 N.E.2d 4.

This court’s decisions in Gray and Pack reflect our adherence to the definition of “lesser-included offense” as set forth in section 2 — 9(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a)):

“ ‘Included offense’ means an offense which
*** [i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.”
“A lesser[-]included offense is[, therefore,] an offense which contains some but not all of the elements of the greater offense and *** contains no element not included in the greater.” People v. Pumphrey (1983), 115 Ill. App. 3d 1031, 1033, 451 N.E.2d 961, 963.

Since theft requires proof of a specific intent to deprive the owner permanently of the use or benefit of property, while robbery requires only proof of general intent, theft is not a lesser-included offense of robbery. Therefore, defendant in the case at bar should not have been found guilty of theft as a lesser but uncharged offense.

Therefore, the defendant’s conviction of theft is reversed, and the defendant’s arguments concerning the number of days to be credited against the defendant’s sentence need not be addressed.

Reversed.

GOLDENHERSH, J., concurs.

PRESIDING JUSTICE RARICK,

dissenting:

I respectfully dissent from the majority’s finding that the defendant was improperly convicted of theft.

As noted in the majority opinion, there is a split of authority in Illinois as to whether or not theft is a lesser-included offense of robbery. I believe that for the reasons which follow, the trial court correctly found that although the charge of armed robbery could not be upheld because of a lack of evidence of a weapon and use of force, a conviction of theft from a person, which had not been specifically charged, was nonetheless proper.

The reasoning set out in People v. Rivers (1990), 194 Ill. App. 3d 193, 550 N.E.2d 1179, is persuasive. Therein the Appellate Court, First District, found that although an indictment charging robbery failed to expressly allege specific intent to permanently deprive the victim of property, an element of the offense of theft, it was not fatal to the defendant’s theft conviction. The court held that “the lesser offense of theft was outlined in the indictment charging robbery. The goal of permanently depriving the victim of his money was the obvious foundation of the charge, and the indictment’s failure to expressly allege that specific intent is not fatal here, especially where the evidence fully proves that specific intent.” (Rivers, 194 Ill. App. 3d at 197, 550 N.E.2d at 1182.) In Rivers, the defendant accosted the complainant on the street, wrestled with him, and demanded money. The complainant, annoyed, took out his wallet to give the defendant a few dollars, he and the defendant struggled over the wallet, and it tore. Defendant refused to return the wallet and absconded with it and the $8 it contained. The information in Rivers specifically charged the defendant with robbery in that “[h]e, by use of force and by threatening the imminent use of force took a wallet and its contents from the person and presence of [the complainant].” In a bench trial, the court found the defendant not guilty of robbery, but guilty of theft from a person.

In the case at bar, the victim, Barbara Clark, and her sister, Sandra Hardin, were attempting to start Hardin’s car, which had stalled, by pushing it with another vehicle. The defendant approached the stalled vehicle, in which Clark was sitting, forced her from the car at gunpoint, took a purse that was sitting on the front seat, and drove away in the operable vehicle. These acts took place at approximately 8 p.m. The next morning, at approximately 10:30 a.m., a St. Clair County deputy sheriff was patrolling in the East St. Louis area and observed an automobile, later determined to be the one taken from the scene by the defendant, roll to a stop in a off-street parking area and saw two men running down an alleyway. The deputy pulled into an alley in order to position himself behind the vehicle, which was being driven by the defendant. The two men who had run down the alleyway stopped the deputy and told him that the defendant had attempted to run them over as they were walking through the alley. The deputy then observed the defendant, who had exited the car, attempting to flee on foot. The deputy apprehended the defendant, was informed by the radio dispatcher that the automobile was stolen, and arrested the defendant. A search of the vehicle revealed a purse, identification belonging to the victim, and a set of license plates.

At trial, the defendant testified in his own behalf. He asserted that he remembered nothing about the incident. He testified that he was walking home the morning he was arrested, about 8 or 9 a.m., after spending some time in a liquor store. Two people with whom he was not acquainted offered him a ride home. He remembered getting into the car with them, but the next recollection he had was of waking up the next morning in the St. Clair County jail. He asserted that he was intoxicated at the time the unknown people picked him up, but he did not own a shotgun, had robbed no one, and never drove the car which was taken from the victim.

The trial court found insufficient evidence to prove the presence of a weapon beyond a reasonable doubt. It found that there was no doubt, based on the defendant’s possession of the stolen property, the purse in particular, and the manner in which the purse was seen after the incident, that the defendant was guilty of theft from a person.

As the State notes in its brief, citing People v. Bryant (1986), 113 Ill. 2d 497, 503, 499 N.E.2d 413, 415, the question of whether one offense is a lesser-included offense of another can be determined in three ways: “the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.” In the instant case, the charging instrument charged the defendant with armed robbery based upon his taking a car and a purse from the complainant while armed with a dangerous weapon and threatening the imminent use of force. Although the evidence in the case at bar was insufficient to demonstrate sufficient force and presence of a weapon to convict the defendant of armed robbery, the evidence detailed above is more than adequate to convict him of theft, despite the fact that it was not charged. Here, as in People v. Romo (1980), 85 Ill. App. 3d 886, 894, 407 N.E.2d 661, 668, quoting People v. Beck (1976), 42 Ill. App. 3d 923, 924, 356 N.E.2d 848, 850, “ ‘[i]t would be contrary to experience and reason to conclude a stranger would forcefully take money from another stranger without fully intending to permanently deprive the wronged party of the money.’ Since the intent element is logically presumed in the charge of robbery, defendant had sufficient information with which to present his defense.”

In the present case, it is clear that the defendant intended to permanently deprive the victim of the automobile and the contents of the purse. The defendant accosted the complainant on the street, ejected her from the automobile, commandeered another automobile, and escaped with the purse. The evidence adduced amply supports a conviction for theft from a person. The information charging the defendant with armed robbery delineated the lesser offense of theft, even absent an express allegation of intent. Defendant’s goal of permanently depriving the victim of property in her possession was obviously the foundation of the charge, and the evidence proves the specific intent to permanently deprive her of that property, even absent the indictment’s failure to expressly allege such intent.

Given the facts of the case at bar, which proved the specific intent necessary to convict the defendant of theft from a person, the defendant’s due process rights were in no way compromised. The information provided the defendant with sufficient information of the nature of the offense to allow him to prepare a defense, and this court should not overturn defendant’s theft conviction. I do not find the cases relied upon by the majority to be persuasive in light of our supreme court’s more recent decision in Bryant. We should follow the reasoning laid out in Rivers and Romo and adhere to the supreme court’s reasoning in Bryant, wherein it held that evidence adduced at trial may support a conviction which has not been charged under certain circumstances, i.e., when the evidence would rationally permit the trier of fact to find the defendant guilty of a lesser, uncharged offense and acquit him of a greater one.

For the foregoing reasons, I respectfully dissent from the majority opinion and would affirm the judgment of the St. Clair County court finding the defendant guilty of theft.


author: JUSTICE WELCH

text:
    ROCKFORD MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. ECONOMY FIRE AND CASUALTY COMPANY et al., Defendants-Appellees (Barbara A. Grace, Indiv. and as Adm’r of the Estate of Larry Gene Sneed, Deceased, Defendant-Appellant).
    Fifth District
    No. 5 — 90—0363
    Opinion filed July 19, 1991.

      Paul R. Lynch and Melissa S. Ellison, both of Craig & Craig, of Mt. Vernon, for appellant Rockford Mutual Insurance Company.
    Patrick T. Moos, of Moos, Schmitt & O’Brien, of Peoria, for appellant Barbara A. Grace.
    Richard A. Cary and Jennifer W. Price, both of Wham & Wham, of Centraba, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

This is a declaratory judgment action brought in the circuit court of Marion County by plaintiff, Rockford Mutual Insurance Company, against defendants, Economy Fire & Casualty Company, the estate of John M. Durbin, deceased, Suzanne Fred, Charles E. Fred, and Barbara A. Grace, individually and as administrator of the estate of Larry Gene Sneed, deceased. The dispute revolves around which of the two insurance companies must provide coverage for the death of Larry Gene Sneed, who was killed when riding as a passenger in a motor vehicle owned by Suzanne and Charles Fred but driven by John M. Durbin. On March 29, 1990, the circuit court of Marion County entered a summary judgment finding that the insurance policy issued by Economy Fire & Casualty Company (hereinafter Economy) to Suzanne and Charles Fred was not applicable to the instant loss. Rockford Mutual Insurance Company (hereinafter Rockford) and Barbara A. Grace appeal.

Economy had issued a policy of insurance to Suzanne and Charles Fred in which the Freds were the named insureds and a 1984 Ford Tempo automobile was the named vehicle. That standard policy provided “uninsured motorist” coverage as follows:

“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. ***
‘Covered person’ as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.”

The policy also contains a separate “named driver exclusion endorsement” which provides:

“In consideration of the premium at which this policy is written, it is agreed that all coverage afforded by this policy is void and shall not apply to any claim or suit which occurs as the result of any auto being operated by the following persons):
John M. Durbin
* * *
All other conditions, stipulations, representations and limitations stated in the policy not in conflict herewith remain the same.”

John M. Durbin is the son of Suzanne Fred. This endorsement is attached to the standard policy and is signed by the Freds.

On January 17, 1987, Larry Gene Sneed was killed while riding as a passenger in the Freds’ 1984 Ford Tempo automobile, operated by John M. Durbin. Durbin was also killed. Sneed was the son of defendant Barbara A. Grace and, at the time of the accident, resided in the same household with Grace. Grace was insured by Rockford and, after Economy denied coverage for the death of her son based on the named driver exclusion endorsement, she made a claim against the uninsured motorist portion of her Rockford-issued policy.

On January 6, 1988, Rockford filed its complaint for declaratory judgment against defendants alleging that, despite the named driver exclusion endorsement in Economy’s policy, the uninsured motorist provision of that policy provided coverage for the death of Sneed. The complaint further alleges that, to the extent the named driver exclusion endorsement bars uninsured motorist coverage with respect to the death of Sneed, it violates the public policy of the State of Illinois expressed in section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a) and is therefore unenforceable and void.

On January 17, 1990, Economy filed a motion for summary judgment asking the court to find as a matter of law that the named driver exclusion endorsement is valid and enforceable and that it voids all coverage under the policy, including uninsured motorist insurance, when the named vehicle is operated by Durbin. On February 20, 1990, Rockford filed a cross-motion for summary judgment in its favor.

On March 29, 1990, the circuit court of Marion County granted Economy’s motion for summary judgment. The trial court found that there was no conflict between the named driver exclusion endorsement and the uninsured motorist provision of the policy and no resulting ambiguity. “This policy is not ambiguous. If John Durbin drives the car, the policy is void and will not apply to any claim.”

The trial court then addressed the question whether the named driver exclusion endorsement violates public policy to the extent it voids uninsured motorist coverage for the death of a passenger in a car operated by the excluded driver. The court found that section 143a of the Illinois Insurance Code, which makes uninsured motorist coverage mandatory in every policy issued after July 1, 1963, was intended to protect only policyholders and named insureds against “other vehicles,” that is, vehicles not owned or occupied by the policyholder or not covered under the policyholder’s policy. The court found that the statute does not require uninsured motorist coverage for nonpolicyholders who did not bargain for the policy coverage when they are injured by a driver who, by virtue of a specific and bargained-for exclusion, is uninsured as to the particular occurrence in which the nonpolicyholder is injured. On May 21, 1990, the court entered an order denying Rockford’s cross-motion for summary judgment and finding that in the event there is no other insurance applicable to this occurrence, then Rockford shall provide primary insurance coverage with respect to the death of Sneed.

Both plaintiff Rockford and defendant Grace appeal from the trial court’s orders and both appellants have filed briefs containing similar arguments. They argue first that, by virtue of a conflict between the named driver exclusion endorsement and the uninsured motorist provision, the insurance policy is ambiguous and, in accordance with well-established principles of construction, should be construed against the insurer and in favor of coverage. Thus, they argue, the uninsured motorist provision should provide coverage for the death of Sneed.

Alternatively, appellants argue that application of the named driver exclusion endorsement to void the uninsured motorist provision violates public policy of the State of Illinois as expressed in section 143a of the Illinois Insurance Code. That section requires that every insurance policy issued after July 1, 1963, provide coverage

“for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” Ill. Rev. Stat. 1989, ch. 73, par. 755a.

Appellants also argue that, in the event we reverse the orders of the trial court and find that the uninsured motorist provision of the Economy policy provides coverage, we should also find that the uninsured motorist provision of the Rockford policy is not primary, but secondary, and provides coverage only to the extent that its policy limits exceed those of Economy’s policy. Because we affirm the orders of the trial court, we do not address this final issue.

Like the trial court, we find no ambiguity in the terms and provisions of the Economy policy. While that policy does provide for uninsured motorist coverage, the named driver exclusion endorsement clearly provides that all coverage is void and does not apply to any claim or suit which occurs as a result of any auto being operated by Durbin. Language in an insurance policy should be given its plain, ordinary, and popular meaning. (Dodge v. Allstate Insurance Co. (1967), 89 Ill. App. 2d 405, 407, 233 N.E.2d 100, 102.) The plain, ordinary, and popular meaning of the word “all” includes the uninsured motorist provision. Thus, that coverage, like all others, is void with respect to a vehicle operated by Durbin.

The policy and endorsements of an insurance policy must be construed together to determine the meaning and effect of the insurance contract. (Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 695, 494 N.E.2d 1241, 1250.) Here, as in Coleman, the policy and endorsement can be construed together. While the policy provides uninsured motorist coverage under its terms, that coverage is void and unenforceable pursuant to the named driver exclusion endorsement if the car is operated by Durbin.

In any event, in Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 494 N.E.2d 1241, the court held that if a conflict exists between the policy proper and the provisions of an attached endorsement, the endorsement will control, at least where it is clear that the policyholder understood and accepted the endorsement. Here, as in Coleman, the policyholders’ written acceptance by signature of the endorsement indicates they understood and accepted the language of the endorsement. Thus, the language of the endorsement prevails over the language of the policy proper and it is clear that the named driver exclusion endorsement overrides the uninsured motorist provision, rendering it void when Durbin operates a vehicle. That the named driver exclusion endorsement overrides any conflicting provisions is made explicit in the endorsement itself, which states, “[a]ll other conditions, stipulations, representations and limitations stated in the policy not in conflict herewith remain the same.”

Where the language of an insurance policy is clear and unmistakable, the rule that a policy of insurance is to be construed liberally in favor of the insured and against the insurer is not applicable. (Meyer v. Aetna Casualty Insurance Co. (1964), 46 Ill. App. 2d 184, 191, 196 N.E.2d 707, 710.) Where there is no ambiguity in the terms of the policy, it should be enforced as written unless to do so would violate public policy. (Weeks v. Aetna Insurance Co. (1986), 150 Ill. App. 3d 90, 94, 501 N.E.2d 349, 351.) We address that question next.

The trial court found that the named driver exclusion endorsement, which bars any recovery for Sneed’s death under the uninsured motorist provision of the policy, does not violate the public policy expressed in section 143a of the Illinois Insurance Code. That section requires that every insurance policy include coverage for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured vehicles and hit-and-run vehicles. The trial court found, and we agree, that the purpose of the statute, and the public policy expressed therein, is to provide protection to policyholders and named insureds for whom protection is specifically contracted, and not to provide protection to third parties who are strangers to the contract of insurance. Policyholders and named insureds may recover under their own insurance policy when they are injured as a result of an accident in or with an uninsured motorist or vehicle, just as an injured third party may recover under his or her own uninsured motorist insurance if he or she is injured as a result of an accident in or with an uninsured motorist or vehicle. Thus, if a passenger is injured in an uninsured vehicle, as in the instant case, that passenger must look to his own insurance policy for recovery under its uninsured motorist provision. Because this was the intention and purpose of the statute, it does not violate public policy to recognize the named driver exclusion endorsement in the Economy policy, which renders the vehicle insured thereunder an uninsured vehicle, treat it as such, and require Grace to seek recovery under her own Rockford policy for the death of her son.

This holding is consistent with the cases cited by appellants in which policyholders or named insureds were permitted to recover under their own uninsured motorist coverage where a specific exclusion rendered their own vehicle in which they were riding uninsured. (See Barnes v. Powell (1971), 49 Ill. 2d 449, 275 N.E.2d 377; Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 425 N.E.2d 543; Illinois Emasco Insurance Co. v. Doran (1987), 160 Ill. App. 3d 927, 513 N.E.2d 970.) To deny any insurance coverage to these policyholders would indeed violate the public policy expressed in section 143a of the Illinois Insurance Code. The instant case is distinguishable from those cases, however, in that in the instant case the injured party is not seeking to recover under his or her own insurance policy, but under the policy of the vehicle which was rendered uninsured at the time of the injury and of which the injured party was neither a policy holder nor a named insured.

The instant case is also distinguishable from the case where a passenger in an insured vehicle, who is neither the policy holder nor a named insured, seeks to recover under that vehicle’s uninsured motorist coverage for injuries sustained in an accident with a different uninsured vehicle. Such an instance is specifically contracted for in standard insurance policies.

The uninsured motorist insurance required by statute is mandatory and may not be whittled away. (Ellis v. Sentry Insurance Co. (1984), 124 Ill. App. 3d 1068, 1072, 465 N.E.2d 565, 568.) However, the construction of the policy made by the trial court does not whittle away at or dilute the mandatory protection. That statute was intended to allow policyholders and named insureds to recover under their own policy when they are injured by an uninsured vehicle, whether that vehicle is their own or a different vehicle. It was not intended to allow recovery by a third-party stranger to the contract under the uninsured motorist provision of an otherwise insured vehide which is rendered uninsured by virtue of a named driver exclusion.

In the instant case, Grace must seek recovery under her own policy for the injury and death of her son while occupying an uninsured vehicle. This would have been the result had the Fred vehicle been completely uninsured rather than uninsured as a result of the exclusion. We see no frustration of the public policy expressed in section 143a by such a result. Since the parties do not dispute any material facts and since the construction of an insurance policy is a matter of law, summary judgment is an appropriate disposition in the instant case. See Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 686, 494 N.E.2d 1241, 1245.

For the foregoing reasons, the summary judgments of the circuit court of Marion County are affirmed.

Affirmed.

HARRISON and LEWIS, JJ., concur.