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Rumbin v. Utica Mutual Insurance Co.8/15/2000
ent agreement, which most likely was the product of negotiation between the plaintiff and the original insurer, and gives short shrift to the fact that the plaintiff never has claimed that either contract was one of adhesion.
As discussed in part I of this dissent, three courts that recently have considered structured settlement agreements containing similar prohibitive language have held that the language in question prevented assignment. See Grieve v. General American Life Ins. Co., supra, 58 F. Sup. 2d 321 ("nor shall [the plaintiff] or any Payee have the power to sell, mortgage, encumber, or anticipate the periodic payments"); Johnson v. First Colony Life Ins. Co., supra, 26 F. Sup. 2d 1227 ("[the plaintiff shall not] have the power to sell or mortgage or encumber [any periodic payments]"); Henderson v. Roadway Express, supra, 720 N.E.2d 1109 ("`the laintiff [shall not] have the power to sell, mortgage, encumber, or anticipate the Periodic Payments'").
In my view, the similarity between the language at issue in the present case, and the language at issue in Grieve, Johnson and Henderson, militates against the majority's conclusion. Unlike the requirements imposed by the courts of New Jersey and New York, neither the antiassignment clauses in those three cases, nor the clauses at issue in the present case, make use of the words "void" or "invalid." Yet, the language of all of those clauses unmistakably is couched in terms plain and common enough to provide clear guidance as to the parties' intent to prohibit assignment. I conclude, therefore, as did the court in Henderson, that "the plain language of the settlement agreement clearly indicates the parties intended to forbid [the plaintiff] from assigning his periodic payments." Henderson v. Roadway Express, supra, 720 N.E.2d 1110.
This conclusion is buttressed, in the present case, by the language of § 322 (2)(c) of the Restatement (Second) of Contracts, which provides that " contract term prohibiting assignment of rights under the contract . . . is for the benefit of the obligor, and does not prevent the assignee from acquiring rights against the assignor or the obligor from discharging his duty as if there were no such prohibition." (Emphasis added.) The Restatement, although cognizant of the need for free transfer of contractual rights, also recognizes, and approves of, the desire of obligors to protect their financial interests. As noted in comment (a) to § 322 of the Restatement, " term in a contract prohibiting assignment of the rights created may resolve doubts as to whether assignment would materially change the obligor's duty . . . or it may serve to protect the obligor against conflicting claims and the hazard of double liability."
Although in the present case the trial court concluded that "[Safeco] . . . has not offered evidence of danger of suffering adverse tax effects as a result of the transfer nor is there other evidence of any detriment to it," that conclusion is irrelevant. As the court in Henderson noted, " ore important than whether or not these tax concerns are real or will actually arise is the fact that the parties implemented the antiassignment provisions with these concerns in mind." Henderson v. Roadway Express, supra, 720 N.E.2d 1113; accord Johnson v. First Colony Life Ins. Co., supra, 26 F. Sup. 2d 1229 n.4 (" t appears that [uncertainty over adverse tax consequences] is what defendants wished to eliminate by including the nonassignability clause").
In the present case, Safeco may, or may not, suffer a detrimental change in its tax position as the annuity issuer as a result of the proposed transfer. Even if, however, the anticipated change for the worse never ensues, the a
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