Mijes v. Primerica Life Ins. Co., 1-00-0229.

• Decision Date: 06 December 2000
• Docket Number: No. 1-00-0229.,1-00-0229.
• Parties: Miguel MIJES and Hillie Semprit, as Special Administrator of the Estate of Maria Mijes, Plaintiffs-Appellants, v. PRIMERICA LIFE INSURANCE CO. and Allstate Insurance Co., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

740 N.E.2d 1160

317 Ill. App.3d 1097

251 Ill.Dec. 589

Miguel MIJES and Hillie Semprit, as Special Administrator of the Estate of Maria Mijes, Plaintiffs-Appellants, v. PRIMERICA LIFE INSURANCE CO. and Allstate Insurance Co., Defendants-Appellees.

No. 1-00-0229.

Appellate Court of Illinois, First District, Third Division.

December 6, 2000.

Rehearing Denied January 9, 2001.

Samuel A. Shelist, Ltd., Edward L. Schuller & Associates, Chicago, for Appellants.

Lord, Bissel & Brook, Chicago (Daniel J. Zollner and Hugh S. Balsam, of counsel), for Appellee-Primerica Life Insurance Co.

Hinshaw & Culbertson (Thomas M. Hamilton, Christine L. Olson and David R. Bradford, of counsel), for Appellee-Allstate Insurance Co.

Justice WOLFSON delivered the opinion of the court:

Maria Mijes' accidental death near Mexico City in July 1997 gave rise to two different kinds of insurance claims—life and uninsured motorist. In each, the trial judge held the unambiguous language of insurance company documents bars coverage. We affirm the trial judge's grants of summary judgment to the two insurance companies.

FACTS

In June 1997, Miguel Mijes (Miguel) and his wife Maria had a life insurance policy application pending with Primerica Life Insurance Co. (Primerica). The "APPLICATION AGREEMENT" provided "except as provided in the `Conditional Premium Receipt,' the insurance hereunder applied for shall not take effect unless the first full premium is paid and the policy issued and delivered * * *." The Conditional Premium Receipt, in turn, provided "* * * no insurance will be in effect before a Policy is issued and delivered unless all of the Conditions below are met."

Under the heading "CONDITIONS FOR COVERAGE" Primerica required:

"All items requested by the Company concerning * * * insurability must have been received by the Company. Such items may include, but are not limited to, medical examinations, blood and/or urine studies, attending physicians statements (APS) and electrocardiograms (EKG)."

Coverage under the Conditional Premium Receipt did not begin until the latest of three dates, one of which was the date Primerica received the results of all tests and exams it had requested. On June 9, 1997, Miguel and Maria signed the agreement and receipt, acknowledging they had read and understood the terms of the conditional coverage.

On June 20, 1997, Primerica requested blood and urine samples from Maria. In early July, a medical test management service contacted Maria, but she refused to schedule an appointment until she spoke with her insurance salesman. Her salesman told her Primerica would not process the Mijes' application until she complied with its request for blood and urine samples. In late July, Maria left for a vacation in Mexico before submitting the requested samples.

On July 27, 1997, a rental car driven by Miguel, in which Maria was a passenger, was struck by an uninsured vehicle near Mexico City, Mexico. Maria died two days later from injuries she sustained in the accident.

At the time of the accident Miguel and Maria were "insured persons" under an automobile insurance policy issued by Allstate Insurance Co. (Allstate). The policy provided uninsured motorist coverage:

"We will pay those damages an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of:

1. bodily injury sustained by an insured person * * *. The bodily injury * * * must be caused by accident and arise out of the ownership, maintenance or use of an uninsured auto."

The policy defined an "uninsured auto" as "a motor vehicle which has no bodily injury or property damage liability bond or insurance policy in effect at the time of the accident."

On page two of the policy, under the heading "GENERAL" and the subheading "When And Where The Policy Applies," Allstate said:

"Your policy applies only during the policy period. During this time, it applies to covered losses to the auto, accidents, and occurrences within the United States of America, its territories and possessions, or Canada, or between their ports."

Under the heading "Limited Mexico Coverage," Allstate said:

"It is important that prior to entering or driving in Mexico, you should check with the appropriate Mexican authorities regarding auto insurance requirements.

Auto accidents in Mexico are subject to the laws of Mexico—not the United States of America. In the Republic of Mexico, an auto accident can be considered a criminal offense as well as a civil matter.

In some cases, the coverage under this policy may not be recognized by Mexican authorities and we may not be allowed to provide any insurance coverage at all in Mexico. For your protection, you should seriously consider purchasing auto coverage from a licensed Mexican insurance company before driving into Mexico.

However, when possible, protection will be afforded for those coverages for which a premium is shown on the Policy Declarations for an insured auto while that auto is within 75 miles of the United States border and only for a period not to exceed ten days after each separate entry into the Republic of Mexico."

Miguel sought coverage from Primerica and Allstate. Both refused. Miguel then filed a breach of contract complaint against these insurers and a negligence complaint against the uninsured Mexican motorists. On March 19, 1999, the trial court granted summary judgment to Primerica. On December 8, 1999, the court granted summary judgment to Allstate. On January 11, 2000, the court entered a Rule 304(a) order, declaring the summary judgment orders final and appealable. This appeal followed.

DECISION

Summary judgment should be granted if "* * * there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998). We review de novo the trial court's decision to grant summary judgment. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 390, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993). In Illinois, construction of an insurance policy is a question of law particularly appropriate for resolution by summary judgment. Crum & Forster, 156 Ill.2d at 391, 189 Ill.Dec. 756, 620 N.E.2d 1073.

1. Primerica's Life Insurance Policy

Miguel contends Primerica breached its insurance contract by refusing to provide life insurance coverage.

We agree with the trial court: "[T]his is a case where the insurance policy is clear in such a way that it unequivocally denies recovery in this case. * * * In order for the life insurance policy to become effective, the terms of the policy required a few conditions precedent to be satisfied. One was the submission, upon request, of certain fluids, like blood and urine."

A condition precedent is an act which one party to a contract must perform before the other party's obligation under the contract begins. Kilianek v. Kim, 192 Ill.App.3d 139, 142, 139 Ill.Dec. 213, 548 N.E.2d 598 (1989). That is, "[t]he contract is neither enforceable nor effective until the condition is performed or the contingency occurs." Jones v. Seiwert, 164 Ill.App.3d 954, 958, 115 Ill.Dec. 869, 518 N.E.2d 394 (1987); accord Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Insurance Co., 962 F.2d 628, 640 (7th Cir.1992) (applying Illinois law).

The Conditional Premium Receipt unambiguously provided there would be no insurance coverage to the Mijes' unless they met the coverage conditions, which included completing the medical tests requested by Primerica. The parties agree Maria did not submit blood and urine samples. She failed to perform a condition precedent.

But Miguel contends a condition precedent must be material. This one, he says, is not material.

Illinois courts do not require materiality: "Unless the conditions precedent to coverage are fulfilled, no interim coverage takes effect." Garde v. American Family Life Insurance Co., 147 Ill.App.3d 1034, 1038, 101 Ill.Dec. 110, 498 N.E.2d 292 (1986); see Fields v. Franklin Life Insurance Co., 115 Ill.App.3d 954, 959, 71 Ill.Dec. 776, 451 N.E.2d 930 (1983) ("the applicant must have completed the required medical examination before temporary insurance could be in effect"); Anetsberger v. Metropolitan Life Insurance Co., 14 F.3d 1226, 1232 (7th Cir.1994) (applying Illinois law) ("Because we find that the Receipt's language plainly and sufficiently warned plaintiffs that temporary insurance would not begin until the medical exam was completed, we hold that under the facts of this case, * * * temporary insurance never began * * *.") See also Restatement (2d) of Contracts § 237, Comment d (1981) ("If * * * the parties have made an event a condition of their agreement, there is no mitigating standard of materiality or substantiality applicable to non-occurrence of that event.")

Because Miguel could not recover under the policy, summary judgment in favor of Primerica was appropriate.

2. Allstate's Uninsured Motorist Policy

Miguel also contends Allstate breached its contract by refusing to provide uninsured motorist insurance coverage in Mexico.

The policy indisputably applied to accidents occurring within the United States, its territories, and Canada. The policy also provided "Limited Mexico Coverage." As Allstate explained, Mexican authorities may not recognize its policy, and "* * * we may not be allowed to provide any insurance coverage at all in Mexico." But, "when possible," or when Mexico allows, Allstate would afford coverage "* * * for an insured auto while that auto is within 75 miles of the United States border and only for a period not to exceed ten days after each separate entry into the Republic of Mexico."

Allstate does not claim Mexican authorities outlawed coverage here. Under the policy, then, Allstate would provide liability and uninsured motorist coverage if the Mijes' rental car was within 75 miles of the United States border at the time of the accident. The parties agree it was...