Appeal from the Circuit Court of Will County; the Hon. Charles
P. Connor, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal from summary judgment entered in favor of Government Employees Insurance Company denying coverage under the excess personal injury protection provisions of an automobile insurance policy issued to Dawn Burton, plaintiff, and her husband, Bradley Burton, who is deceased.
There is no dispute as to the facts of this case. Bradley Burton died in an automobile accident in October of 1982. He was alone in his car, traveling east in the westbound lane of I-55 in Chicago, when he collided head-on with another vehicle. According to the toxicologist's report, decedent had a blood alcohol level of 173 mg% which indicated that he was intoxicated at the time of the accident.
Plaintiff Dawn Burton made a claim against the Burtons' automobile insurer, Government Employees Insurance Company, for a $2,000 funeral expense benefit and $39,000 survivor's benefits ($150 per week for 260 weeks after death). These claimed benefits were provided under the excess personal injury protection provisions of the policy. Defendant company denied plaintiff's claim, and she then filed suit in the circuit court of Will County seeking a money judgment for benefits claimed to be due, a declaratory judgment as to future survivor's benefits, and also damages for the company's vexatious refusal to pay her claim.
Plaintiff then moved the court for a partial summary judgment as to that portion of the benefits claimed to have accrued from the date of death and for a declaration of her rights to such benefits as would accrue in the future. The court denied her motion for summary judgment. Thereafter the court determined that the denial of plaintiff's motion for summary judgment had been tantamount to the entry of summary judgment in favor of defendant and entered summary judgment in favor of defendant. In its order denying plaintiff's motion, the trial court found that "the coverage provided under the Excess Personal Injury Protection provisions of the subject policy are conditioned upon and contingent upon liability under the Basic Personal Injury Protection provisions * * *."
The determinative issue presented by this appeal is whether excess personal injury protection benefits are contingent upon basic personal injury protection benefits being payable. Under the terms of the policy the basic benefits were not payable here because decedent was intoxicated.
The pertinent policy provisions are as follows:
"BASIC PERSONAL INJURY PROTECTION
The Company will pay to or for the benefit of the injured person:
(a) Medical, Hospital and Funeral Expenses: * * *."
"BASIC PERSONAL INJURY PROTECTION does not apply:
(a) to or on behalf of any injured person where such person's conduct contributed to the injury in any of the following ways:
(2) while under the influence of intoxicating liquor or ...