Cahman v. Agency Rent-A-Car Systems, Inc.

Second Division
September 8, 1998

No. 1-97-0148

SAMUEL J. CAHNMAN, Indiv. ) Appeal from the
and on Behalf of All Others ) Circuit Court of
Similarly Situated, ) Cook County.
)
Plaintiff-Appellant, )
)
v. )
)
AGENCY RENT-A-CAR SYSTEM, INC., ) Honorable
) Stephen A. Schiller,
Defendant-Appellee. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:
Plaintiff, Samuel J. Cahnman, filed suit against defendant,
Agency Rent-A-Car, on behalf of himself and all others similarly
situated under the Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 1996)),
alleging defendant unlawfully charged an "additional driver fee"
when plaintiff rented an automobile from defendant and sought to
permit another individual to drive the car. Plaintiff alleged
that charging the fee was prohibited by the Illinois Vehicle Code
(625 ILCS 5/6-305 (West 1996)), and, thus, defendant committed
fraudulent and deceptive acts in charging it, thereby causing
damage to plaintiff. The trial court granted defendant's section
2-615 motion to dismiss under the Code of Civil Procedure (735
ILCS 5/2-615 (West 1996)), and plaintiff appeals this dismissal.
For the following reasons, we affirm.
BACKGROUND
On March 16, 1996, plaintiff rented a car from defendant for
use in his political campaign. Plaintiff wanted one of his
volunteers, Wilma Miller, to drive the car. Defendant's rental
contract required each additional driver to be listed on the
contract. In addition, it charged a $5 fee per day for each
additional driver. Plaintiff listed Miller on the contract and,
upon returning the vehicle, paid the additional driver fee.
Plaintiff filed suit, contending that defendant was
prohibited from charging the additional driver fee since,, under
section 6-305, his coworker, Miller, was already authorized to
drive the car and, therefore, could not be charged a fee for
being given the authority to drive it. In other words, plaintiff
argues that he is being charged for something to which he already
had a right.
The trial court dismissed plaintiff's complaint, finding
that it failed to state a cause of action upon which relief could
be granted.
ANALYSIS
Plaintiff contends that section 6-305 gives those drivers
therein specified the authority to drive a rental car and,
therefore, defendant cannot charge a fee for that right since it
already exists. He argues that this section was enacted to
eradicate the long history of deceptive charges in the rental car
industry, which includes the additional driver fee and, thus,
defendant's act is proscribed.
The statute relied upon by plaintiff states:
"(d) No person who rents a private
passenger motor vehicle to another shall, in
rental agreements of 30 continuous days or
less, hold any authorized driver liable for
any damage or loss to the rented vehicle
exceeding $200 including loss of use and any
costs and expenses incident to the damage,
loss or loss of use ***.
(e) For the purposes of subsection (d)
of this Section, 'authorized driver' shall
mean the person to whom the vehicle is
rented; the renter's spouse if a licensed
driver who satisfies the rental company's
minimum age requirement; the renter's
employer or co-worker if they are engaged in
business activity with the person to whom the
vehicle is rented, are licensed drivers, and
satisfy the rental company's minimum age
requirement; any person who operates the
vehicle during an emergency situation or
while parking the vehicle at a commercial
establishment; and any person expressly
listed by the rental company on the rental
agreement as an authorized driver." 625 ILCS
5/6-305(d), (e) (West 1996).
In statutory construction:
"[W]e must focus on the language of the
statute itself. [Citation.]
Legislative intent is the controlling
inquiry in construing a statute, and the
statutory language is the best
indication of that intent. [Citation.]
Statutory provisions must be read as a
whole, and no word or paragraph should
be interpreted so as to be rendered
meaningless." Boaden v. Department of
Law Enforcement, 267 Ill. App. 3d 645,
651 (1994), aff'd, 171 Ill. 2d 230
(1996).
We also cannot read words into a statute that are not there.
Illinois Wood Energy Partners, L.P. v. County of Cook, 281 Ill.
App. 3d 841, 850 (1995). Where the language of the statute is
clear, the court must give it effect without resorting to other
aids for construction. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994).
We find the language of section 6-305 unambiguous.
Paragraph (d) addresses liability for damages to a rental vehicle
only. It caps that liability at a certain amount. It does
nothing more. Paragraph (e) defines to whom the liability cap in
paragraph (d) applies. It too does nothing more. Although
plaintiff argues that the definition of "authorized drivers" is
for all purposes, this argument is without merit. The statute
clearly intended just the opposite. Paragraph (e) applies only
to the liability cap as is clear by its prefatory language,
"[f]or the purposes of subsection (d) of this Section."
(Emphasis added.) 625 ILCS 5/6-305(e) (West 1996). It does not
state that the specified individuals have a right to drive a
rental car, nor does it state that they have this right and
cannot be charged for it. Again, it simply defines those
individuals to whom the liability cap applies. It does not state
that the definition is for purposes of the entire Vehicle Code
nor does it state that the definition is for purposes of driving.
Moreover, "authorized driver" is mentioned no where else in the
Vehicle Code. Were we to interpret the provision as plaintiff
requests, we would be reading language into the statute that is
not present. We are not permitted to do so.
Although the amendment provisions and new act do not apply
to the instant case, the fact that the statute has been amended
further supports our conclusion. The legislature deleted both
paragraphs (d) and (e). It simply could have deleted paragraph
(d) and the first sentence of paragraph (e) had it been its
intent to apply the definition of "authorized driver" to other
situations. It did not do this. Moreover, when it redefined
authorized driver, it did so again in the context of liability.
Finally, not only does the unambiguous language of sections
6-305(d) and (e) deal only with a cap on liability, but the only
case to interpret these provisions, Alamo Rent A Car, Inc. v.
Ryan, 268 Ill. App. 3d 268 (1994), confirms that the focus of the
paragraphs is on the liability cap. In Alamo Rent A Car, Inc.,
the court was called upon to determine the constitutionality of
the paragraphs and whether they allowed charging a fee for
collision damage waivers. According to the court, the purpose of
paragraph (d) "was to prevent rental companies from over charging
customers for repairs to cars they [had] negligently damaged."
Alamo Rent A Car, Inc., 268 Ill. App. 3d at 273. Although the
court did discuss the abuses in the rental car industry of
charging additional fees, the focus of the case and of paragraph
(d) was on capping liability for damage.
Although plaintiff argues that it is an absurd
interpretation that one need list a valet driver or an emergency
driver on the rental agreement, these are not the factual
situations before this court. Moreover, as to valet driver, when
the legislature amended the act, it deleted any reference to
valet/commercial drivers. Therefore, any alleged problem
concerning that category of driver no longer exists. With regard
to an emergency driver, when this court has that factual scenario
before it, it will address that issue. We decline to do so at
this time.
Accordingly, we conclude that the clear and unambiguous
language of the statute does not prohibit defendant from charging
a fee for additional drivers. At the time the legislature
promulgated this provision, it certainly was aware of the abuses
in the car rental industry and presumably aware that certain
companies charged fees for additional drivers. Nonetheless, it
did not prohibit such fees as have other states (see, e.g., Cal.
Civil Code 1936(M)(3) (West Supp. 1997) ("A rental company shall
not charge any fee for authorized drivers in addition to the
rental charge for an individual renter")), it did not set a cap
on the fee amount (N.Y. Gen. Bus. 396-z(d) (Consol. 1996)(fee
for additional drivers cannot exceed $2.50 per person for first
day, $1 per person for each day thereafter and in no event exceed
$5 per person)), nor did it even mention such fees in the statute
(Iowa Code 516D.7 (1988) (rental companies must disclose, in
response to direct consumer inquiry on rate of vehicle, cost of
additional driver fee); Mo. Rev. Stat. 407.732(10)(5) (1990)
(must disclose in printed advertisement stating price for rental
existence of additional driver fee)).
For the foregoing reasons, we conclude that section 6-305
does not proscribe defendant's conduct. Even assuming arguendo
that we were now to hold that section 6-305 does prohibit
defendant's conduct, we would nevertheless conclude that there is
no violation of the Consumer Fraud Act because until now the
question was at best unsettled. See Lee v. Nationwide Cassel,
L.P., 174 Ill. 2d 540 (1996); Stern v. Norwest Mortgage, Inc.,
284 Ill. App. 3d 506 (1996), aff'd, 179 Ill. 2d 160 (1997);
Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 286 Ill.
App. 3d 48 (1997).
In Lee, defendant bank attempted to hold plaintiffs (co-
signors on auto loans) liable under the Motor Vehicle Retail
Installment Sales Act (Sales Act) (815 ILCS 375/1 et seq (West
1992)) even though they never had received possession of the
vehicles. Plaintiffs filed suit alleging that defendant violated
the Consumer Fraud Act by attempting to hold them liable since
their liability was precluded by the Sales Act. The court
determined that there were insufficient facts alleged in
plaintiffs' complaint to state a cause of action under the
Consumer Fraud Act. According to the court, the fact that
defendant allegedly misrepresented to plaintiffs that they were
primarily liable, "based upon an erroneous interpretation of
section 18 of the Motor Vehicle Retail Installment Sales Act,"
was insufficient to state a cause of action. Lee, 174 Ill. 2d at
550. The court concluded that "[g]iven [the] uncertainty about
the applicable law [based on appellate court interpretation in
one case], the pleadings here fail to adequately allege that
defendant employed deception, fraud, or misrepresentation, ***
since plaintiffs' immunity from liability was an unsettled
question of law." Lee, 174 Ill. 2d at 550-51.
In Stern, plaintiffs filed suit stating that defendant's
"escrow waiver fee" violated the Consumer Fraud Act because such
a fee was precluded by the Illinois Mortgage Escrow Account Act
(Escrow Act) (765 ILCS 910/1 et seq. (West 1992)). In this case,
plaintiffs sought a mortgage from defendant. Instead of
establishing an escrow account for taxes and insurance,
plaintiffs pledged a certificate of deposit as permitted by the
Escrow Act. Defendant charged plaintiffs a fee for doing so.
Although the court determined that defendant was not permitted to
charge the fee under the Escrow Act, it found that plaintiffs had
failed to state a cause of action under the Consumer Fraud Act
because any mistake in charging the fee was based on an error on
the part of defendant in interpreting the statute, not fraud or
deception. The court stated that this was a case where the
parties disagreed about the effect of an unconstrued statute. In
conclusion, the court stated that although plaintiffs need not
demonstrate intent on the part of defendant, "there must be a
claim seated in deceptive acts rather than a reasonable
difference of opinion as to the meaning of an act of the Illinois
General Assembly." Stern, 284 Ill. App. 3d at 513. The court
did note that if defendant attempted to charge the same fee the
day after the court's decision, there would be a different result
in its holding concerning the violation of the Consumer Fraud
Act.
The supreme court affirmed. It too found that although the
fee was prohibited, there was no violation of the Consumer Fraud
Act:
"[W]e find that defendant's action of
charging plaintiffs an escrow waiver fee when
plaintiffs elected to pledge an interest-
bearing time deposit was not intended to
deceive or defraud plaintiffs or be unfair to
plaintiffs. Further, defendant did not
conceal, suppress, or omit any material fact
with the intent that plaintiffs would rely on
such action. Defendant, in this case, merely
made an honest mistake concerning the
interpretation of a statute that had yet to
be construed. *** [W]e do not believe that
the defendant's action in this case violated
the Fraud Act." Stern, 179 Ill. 2d at 169.
In Weatherman, plaintiffs sought a mortgage from defendant.
Before closing but after they had paid their lock-in fee,
plaintiffs requested that defendant suspend their escrow account.
Defendant did so but advised them it would charge a fee for doing
so. Plaintiffs filed suit, contending this fee violated the
Consumer Fraud Act because the Escrow Act did not allow charging
such a fee. Looking to Stern, the court found that defendant had
not violated the Consumer Fraud Act. "As in Stern, the parties
in this case have a legitimate disagreement as to whether the
Escrow Act permits an escrow suspension fee. Assuming
[defendant] was incorrect in its interpretation of the Escrow
Act, as the lender was in Stern, this would not prove a violation
of the Consumer Fraud Act." Weatherman, 286 Ill. App. 3d at 64.
The court further found that the Escrow Act did not prohibit such
a fee. The statute only states that an individual may pledge a
certificate of deposit in lieu of setting up an escrow account.
"The statute does not address the situation in which a lender
waives the escrow requirement. The Escrow Act does not,
therefore, prevent a lender from charging a fee for waiving its
right to require an escrow." Weatherman, 286 Ill. App. 3d at 64.
The instant case is similar to the above cases. The
language of section 6-305 does not explicitly prohibit
defendant's conduct. At best, it was arguably ambiguous and the
only case to interpret it, Alamo Rent A Car, Inc., did not
address the issue raised by plaintiff. As in Lee, the question
of whether defendant was prohibited by section 6-305 from
charging an additional driver fee was unsettled, and as in Stern,
the statute was unconstrued. The situation here, as in the above
cases, is one where the parties hold reasonable differences of
opinion on the interpretation of a statute and legitimately
disagree as to what section 6-305 permits. It is not a case
where the statute has been construed to prohibit such fees and
defendant nonetheless continued to charge them, or a case where
the statute expressly prohibits the fees. Accordingly, we
conclude that the trial court properly dismissed plaintiff's
complaint.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
circuit court of Cook County.
Affirmed.
McNULTY, J., and O'MARA FROSSARD, J., concur.
[fn1] Section 6-305 has been amended. Paragraphs (d)
and (e) have been completely eliminated. A new section, section
6-305.2, entitled "limited liability for damage" has been added,
presumably in place of paragraph (d). The new section basically
deletes the liability cap. Now, the renter is liable for actual
damages to the vehicle or the fair market value of the vehicle,
whichever is less. Authorized drivers do have a cap on their
liability but it is significantly increased. The current cap is
$7,500 and it increases each June.
Additionally, the legislature has promulgated a new act that
also relates to rental liability. It is entitled the Renter's
Financial Responsibility and Protection Act. 625 ILCS 27/1 (West
Supp. 1997). Initially, the legislature sets forth its findings
regarding the $200 cap provision it deleted, in particular, the
consequences of that cap and why it was necessary to change that
provision. 625 ILCS 27/5 (West Supp. 1997). The legislature
included in this new act the definition of "authorized driver."
It should be noted that the legislature has added "employee" as
an authorized driver but has deleted any reference to those who
drive a car for commercial establishments, e.g., valet drivers.
625 ILCS 27/10 (West Supp. 1997). This act addresses damage
waivers and prohibited practices relative thereto (625 ILCS 27/15
(West Supp. 1997)), disclosure notices and advertising
requirements (625 ILCS 27/20 (West Supp. 1997)), and mandatory
charges (625 ILCS 27/25 (West Supp. 1997)).