Rumbin v. Utica Mutual Insurance

Opinion

The defendant Safeco Life Insurance Company (Safeco), appeals from the judgment of the trial court approving the transfer by the plaintiff, Marco Rumbin, of payments due to him under an annuity issued pursuant to a structured settlement agreement between the plaintiff and the named defendant, Utica Mutual Insurance Company (Utica Mutual).1 The plaintiff proposes to sell the remaining payments to the intervening plaintiff, J. G. Wentworth.2 The principal *261issues in this appeal are: (1) whether General Statutes § 52-225f3 invalidates antiassignment provisions that are *262included in structured settlement agreements and annuities issued pursuant to such agreements; and (2) whether the antiassignment clause contained in the *263annuity issued by Safeco1 *34 for the plaintiff beneficiary invalidates his assignment to Wentwoith. We conclude that § 52-225f does not invalidate such antiassignment provisions. We further conclude that, under Connecticut common law, the antiassignment provision in the annuity contract does not invalidate the plaintiffs assignment of his right to payments under the annuity to Wentworth. In accordance with case law and § 322 of the Restatement (Second) of Contracts, an antiassignment provision that does not limit the power to assign or expressly invalidate the assignment does not render the assignment of the annuity ineffective. Safeco, however, has the right to recover damages for the plaintiffs breach of the antiassignment provision. We therefore affirm the judgment of the trial court.

The record reveals the following facts. In April, 1998, the plaintiff and Utica Mutual entered into a structured settlement agreement to resolve a personal injury claim. Pursuant to that settlement agreement, the plaintiff was to receive from Utica Mutual a lump sum payment, followed by a series of periodic payments over the next fifteen years.5 The structured portion of the settlement *264was funded by the annuity contract issued by Safeco. The annuity contract provided under its “Assignment” provision that “[n]o payment under this annuity contract may be . . . assigned ... in any manner by the [plaintiff] . . . .”6

Approximately six months after the execution of the settlement agreement and the issuance of the annuity, the plaintiff had become unemployed and faced a mortgage foreclosure action against his home, where he lived with his family. In order to resolve his financial troubles, the plaintiff decided to sell his right to the annuity payments. In November, 1998, he filed a declaratory judgment action seeking court approval, pursuant to No. 98-238, § 1, of the 1998 Public Acts (P.A. 98-238), now codified at § 52-225Í, to transfer his right to the remaining annuity payments to Wentworth in exchange for a lump sum payment and other consideration. Safeco objected to the assignment, claiming that because the annuity contract contained an antiassignment provision, P.A. 98-238 was inapplicable. Utica Mutual neither appeared at that hearing, nor provided an explanation for its failure to appear, and the trial court issued an order of default for failure to appear against Utica Mutual.7

*265The trial court, after a hearing, concluded that P.A. 98-238 invalidated antiassignment provisions and allowed payees to tr ansfer their rights to future payments under structured settlement agreements when the statutory requirements were met. The trial court further found that, pursuant to P.A. 98-238, the proposed sale of the annuity payments was in the best interests of the plaintiff, and was fair and reasonable to all interested parties. Accordingly, the court rejected Safeco’s claim concerning the applicability of the antiassignment provision, and rendered judgment approving the transfer of the plaintiffs annuity payments to Wentworth. Safeco appealed from the trial court’s judgment to the Appellate Court, and we transferred the case to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

I

We first consider Safeco’s claim that the trial court improperly concluded that the language of § 52-225Í invalidates antiassignment provisions in structured settlement agreements and annuities issued pursuant to such agreements. We agree with Safeco, and conclude that the language of § 52-225f does not abrogate the common-law right to include an antiassignment provision in such an agreement or annuity.

It is well settled that “[i]n determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . We recognize only those alterations of the common law that are clearly expressed in the language of *266the statute because the traditional principles of justice upon which the common law is founded should be perpetuated.” (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999).

The language of § 52-225f contains no clear expression of legislative intent to alter the common law. There is, for example, no provision in the statute that addresses the impact of antiassignment provisions on the transfer of structured settlement rights. Nor does the statute grant the trial court the power to ignore antiassignment provisions, or the common law of contracts, if the court deems it appropriate or necessary. Rather, the statute requires the trial court to consider “whether the transfer of such structured settlement payment rights is in the best interests of the payee and is fair and reasonable to all interested parties under all of the circumstances then existing” and further provides, “[i]f the court determines, after hearing, that such transfer should be allowed, it shall approve such transfer upon such terms and conditions as it deems appropriate.” General Statutes § 52-225Í (c) (1). Reading that language as a clear and plain expression of the legislature’s desire to alter the common law of contracts would be an unwarranted departure from our traditional practice of presuming that “the legislature is capable of providing explicit limitations when that is its intent.” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). In the absence of such explicit language, we adhere to our long-standing rule that “[n]o statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.” (Internal *267quotation marks omitted.) Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341 (1995).8

II

The primary issue raised by this case is whether, under Connecticut common law, an antiassignment provision in an annuity contract invalidates the plaintiff payee’s transfer of his right to future payments under the annuity to a third party. We conclude, in accordance with case law and § 322 of the Restatement (Second) of Contracts, that the antiassignment provision at issue here does not render the assignment of the annuity ineffective, but, instead, gives the annuity issuer, Safeco, the right to recover damages for breach of the antiassignment provision.

Although we previously have addressed the issue of the validity of contractual provisions prohibiting the assignment of contractual rights; see Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 149, 120 A.2d 423 (1956) (upholding validity of contractual provision that prohibited assignment without consent); the law of contracts has changed considerably since our earlier decision. Accordingly, we now reexamine the basic legal principles regarding contractual antiassignment provisions.

Our analysis of the effect of the antiassignment provision begins by emphasizing that the modem approach to contracts rejects traditional common-law restrictions on the alienability of contract rights in favor of free assignability of contracts. See 3 Restatement (Second), Contracts § 317, p. 15 (1981) (“[a] contractual right can be assigned”); J. Murray, Jr., Contracts (3d Ed. 1990) *268(“the modem view is that contract rights should be freely assignable”); 3 E. Farnsworth, Contracts (2d Ed. 1998) § 11.2, p. 61 (“[t]oday most contract rights are freely transferable”). Common-law restrictions on assignment were abandoned when courts recognized the necessity of permitting the transfer of contract rights. “The force [s] of human convenience and business practice [were] too strong for the common-law doctrine that [intangible contract rights] are not assignable.” (Internal quotation marks omitted.) J. Murray, Jr., supra, § 135, p. 791. “If the law were otherwise, our modem credit economy could not exist.” 3 E. Farnsworth, supra, § 11.2, p. 61. As a result, an assignor typically can transfer his contractual right to receive future payments to an assignee. See Western United Life Assurance Co. v. Hayden, 64 F.3d 833, 841 (3d Cir. 1995); 3 E. Farnsworth, supra, § 11.2, pp. 61, 66.

The parties to a contract can include express language to limit assignment and courts generally uphold these contractual antiassignment clauses. See 3 Restatement (Second), supra, § 317, p. 15 (“[a] contractual right can be assigned unless . . . assignment is validly precluded by contract”); 3 E. Farnsworth, supra, § 11.4, pp. 82 (“most courts have upheld [terms prohibiting assignment] as precluding effective assignment”). Given the importance of free assignability, however, antiassignment clauses are construed narrowly whenever possible. See 3 E. Farnsworth, supra, § 11.4, pp. 82-83.

In inteipreting antiassignment clauses, the majority of jurisdictions now distinguish between the assignor’s “right” to assign and the “power” to assign (modem approach). For example, in Bel-Ray Co. v. Chemrite (Pty.) Ltd., 181 F.3d 435, 442 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit recognized that numerous jurisdictions followed the general rule “that contractual provisions limiting or prohibiting *269assignments operate only to limit [the] parties’ right to assign the contract, but not their power to do so, unless the parties manifest an intent to the contrary with specificity.” (Emphasis added.) The court concluded, however, that the “assignment clauses [did] not contain the requisite clear language to limit [the] ‘power’ to assign” and, therefore, held the assignment valid and enforceable. Id., 443. The court acknowledged that contracting parties could limit the power to assign by including an “assignment provision [that] generally state[s] that nonconforming assignments (i) shall be ‘void’ or ‘invalid,’ or (ii) that the assignee shall acquire no rights or the nonassigning party shall not recognize any such assignment.” Id., 442. Without such express contractual language, however, “the provision limiting or prohibiting assignments will be interpreted merely as a covenant not to assign .... Breach of such a covenant may render the assigning party liable in damages to the non-assigning party. The assignment, however, remains valid and enforceable against both the assignor and the assignee.” Id.

Many other courts similarly have held that an antiassignment provision that limits the right to assign does not void an assignment between an assignor and assignee unless there is also an express provision limiting the power to assign or a provision voiding the assignment itself. See, e.g., Pravin Banker Associates, Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 856 (2d Cir. 1997) (“ ‘[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, [a contractual] clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way’ ”); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., 693 F.2d 748, 754 (8th Cir. 1982) (concluding that “[m]erely the ‘right to assign,’ not the power to assign, [was] limited by the *270express language of the [antiassignment] clause. No intent is thereby revealed to avoid an assignment not meeting the restrictions.”); Liberty Life Assurance Co. of Boston v. Stone Street Capital, Inc., 93 F. Sup. 2d 630, 637 (D. Md. 2000) (“the Court can think of no clearer way to communicate an intent to deny a party the power to assign than to expressly say so”); Wonsey v. Life Ins. Co. of North America, 32 F. Sup. 2d 939, 943 (E.D. Mich. 1998) (refusing to “[disregard] the modem trend of upholding assignments in the face of contractual anti-assignment clauses”); Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, 863 F. Sup. 135, 138 (S.D.N.Y. 1994) (“assignments are enforceable unless expressly made void”); Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., 812 F. Sup. 841, 844 (N.D. Ill. 1993) (concluding that antiassignment clauses “do not specifically render void an attempted assignment” but “merely restrict the right to assign”); Paccom Leasing Corp. v. E.I. du Pont de Nemours & Co., Docket Nos. CIV. A. 89-255-CMW, 90-311-CMW, 1991 U.S. Dist. WL 226775, p. *7 (D. Del. October 30, 1991) (“[t]here is ample support for [the] position that distinguishes between the power to assign and the right to assign. If the power to assign is removed by contract [rendering any attempted assignment void] then the attempted assignment would be ineffective .... On the other hand, if the contract . . . merely removed the right to assign, then the assignments . . . would be upheld.”); Jacquette v. CNA Ins. Cos., Civil Action No. 98-1601 (N.H.P.) (D.N.J. November 16, 1998) (“a contractual prohibition against assignment cannot render an assignment void unless the contract explicitly states that assignments are void or invalid or otherwise ineffective”); Hanigan v. Wheeler, 19 Ariz. App. 49, 52, 504 P.2d 972 (1972) (“Where a contract contains apromise to refrain from assigning, an assignment which violates it would not be ineffective. The promise creates *271a duty in the promisor not to assign. It does not deprive the assignor of the power to assign . . . .” [Emphasis in original; internal quotation marks omitted.]); In re Freeman, Docket No. 98-9384-3P7 (Fla. Bankr. March 29, 1999) (“the anti-assignment provision must eliminate both Debtor’s ‘power’ to assign as well as his ‘right’ to assign the contract or rights before this Court will invalidate the assignment”); Garden State Buildings, L.P. v. First Fidelity Bank, N.A., 305 N.J. Super. 510, 522, 702 A.2d 1315 (1997) (“ ‘[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way’ ”); First England Funding, LLC v. Travelers Indemnity Co., Docket No. BER-L-5608-99 (N.J. Super. August 20, 1999) (“[t]he court further concludes that if the parties had wished to make any assignment void, that any clause purporting to invalidate assignments must contain language that it would be void or invalid if not made in a certain specified way”); University Mews Associates v. Jeanmarie, 122 Misc. 2d 434, 440, 471 N.Y.S.2d 457 (1984) (“[f]or a contractual clause forbidding or restricting an assignment of rights thereunder to reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way”); Reuben H. Donnelley Corp. v. McKinnon, 688 S.W.2d 612, 615 (Tex. App. 1985) (“because the contract term only forbids assignment ... it does not render an assignment ineffective”); see also 3 E. Farnsworth, supra, § 11.4, pp. 82-83 (“such anti-assignment clauses . . . are often read as imposing a duty on the assignor not to assign, but are not read as making an assignment invalid”); J. Murray, Jr., *272supra, § 138, p. 807 (“The contract may contain a promise by one or both parties to refrain from assigning. . . . The promise creates a duty in the promisor not to assign. It does not deprive the assignor of the power to assign and its breach, therefore, would simply subject the promisor to an action for damages while the assignment would be effective.” [Emphasis in original.]). Thus, the modem approach finds support in the majority of jurisdictions.9

The modem approach, however, is not adopted by some courts, which uphold antiassignment clauses regardless of whether the parties have included contractual language that expressly limits the power to assign or expressly invalidates the assignment itself. We agree with these courts that contracting parties can exercise their freedom to contract to overcome free alienability when they include the appropriate contractual language. See Parrish Chiropractic Centers, P.C. v. Pro*273gressive Casualty Ins. Co., 874 P.2d 1049, 1054-55 (Colo. 1994) (“The policy supporting free alienability is not such an absolute one that it must override a contract provision prohibiting assignment in a specific context. ... To hold otherwise would be to force [the obligor] to deal with parties with whom it has not contracted, regardless of . . . express contractual provision . . . .” [Citations omitted; internal quotation marks omitted]); Portland Electric & Plumbing Co. v. Vancouver, 29 Wash. App. 292, 295, 627 P.2d 1350 (1981) (“The primary purpose of clauses prohibiting the assignment of contract rights without a contracting party’s permission is to protect him in selecting the persons with whom he deals. . . . When a contract prohibits assignment in ‘very specific’ and ‘unmistakable terms’ the assignment will be void against the obligor.” [Citation omitted.]). We disagree, however, with these courts that the antiassignment provisions in these cases contained the necessary contractual language. See Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., supra, 1051 (enforcing an antiassignment provision in insurance policy that stated “[i]nterest in this policy may not be assigned without our written consent” [emphasis in original]); Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App. 1989) (prohibiting assignment when annuity agreement provided that “[s]eller . . . shall not have the right to make any assignment . . . under this [agreement without the prior written consent of the [purchaser”); Portland Electric & Plumbing Co. v. Vancouver, supra, 294 (prohibiting assignment when contract stipulated that “[t]he [contractor shall not assign this contract or any part thereof . . . without the written prior approval of the [o]wner”). These courts ignore the rule adopted by the majority of jurisdictions, which requires that in order to invalidate the assignment, the parties must include in their antiassignment provision language that specifi*274cally limits the power to assign or invalidates the assignment itself.

The modem approach offers the advantage of free assignability together with full protection for any obligor who actually suffers damages as a result of an assignment. An assignor who breaches a contractual provision limiting his or her right to assign will be hable for any damages that result from that assignment. See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442 (“the provision limiting or prohibiting assignments will be interpreted merely as a covenant not to assign .... Breach of such a covenant may render the assigning party liable in damages to the non-assigning party. The assignment, however, remains valid and enforceable . . . .”); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., supra, 693 F.2d 754 n.4 (breach of promise to refrain from assigning or to assign under certain conditions does not render assignment ineffective but may provide remedy for damages if breach was material); International Telecommunications Exchange Corp. v. MCI Telecommunications Corp., 892 F. Sup. 1520, 1533 (N.D. Ga. 1995) (“ ‘abreach of covenant not to assign creates a right in the contractobligee to recover against the obligor-assignor any damage suffered by reason of the assignment, but it does not affect the transfer of contract rights to the assignee’ ”); Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, supra, 863 F. Sup. 137 (“[a]n assignment made in violation of a personal covenant prohibiting assignments is enforceable, although it does give rise to a damages action against the assignor”); Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., supra, 812 F. Sup. 844 (finding that contractual clause “merely restricts the right to assign” and provides obligor “with a right to damages for breach of the portion of the contract forbidding assignment”); Paccom Leasing Corp. v. E.I. du Pont de Nemours & *275Co., supra, 1991 U.S. Dist. WL 226775, p. *7 (“if the contract . . . merely removed the right to assign . . . a duty was imposed on the promisor . . . not to assign and a breach of that duty would give rise to a cause of action, but the assignment would remain effective”); Jacquette v. CNA Ins. Cos., supra, Civil Action No. 98-1601 (NHP) (discussing that while obligor may have right to damages for breach of antiassignment provision, assignment must expressly state that it is void or invalid); Hanigan v. Wheeler, supra, 19 Ariz. App. 52 (“[w]here a contract contains a promise to refrain from assigning ... its breach . . . would simply subject the promisor to an action for damages while the assignment would be effective” [emphasis in original; internal quotation marks omitted.]); Randol v. Tatum, 98 Cal. 390, 397, 33 P. 433 (1893) (holding that assignment in violation of covenant not to assign is not void but provides remedy for breach of covenant); Garden State Buildings, L.P. v. First Fidelity Bank, N.A., supra, 305 N.J. Super. 522 (“ ‘[a contractual] clause must contain express provisions that any assignment shall be void or invalid’ . . . [otherwise, the assignment is effective, and the obligor merely has the right to damages”); Allhusen v. Caristo Construction Corp., 303 N.Y. 446, 450, 103 N.E.2d 891 (1952) (recognizing that when assignment valid despite antiassignment clause obligor has claim for damage for breach); Macklowe v. 42nd Street Development Corp., 170 App. Div. 2d 388, 389, 566 N.Y.S.2d 606 (1991) (“where the language employed constitutes merely a personal covenant against assignments, an assignment made in violation of such covenant gives rise only to a claim for damages against the assignor for violation of the covenant”); Sullivan v. International Fidelity Ins. Co., 96 App. Div. 2d 555, 556, 465 N.Y.S.2d 235 (1983) (“an assignment made in violation of such covenant gives rise only to a claim for damages against the assignor for violation of the *276covenant”); University Mews Associates v. Jeanmarie, supra, 122 Misc. 2d 440 (holding that contractual clause “must specifically eliminate the power as well as the right to assign the contract . . . otherwise the original obligor is given only the right to damages for its breach, but does not render the assignment ineffective”); Reuben H. Donnelley Corp. v. McKinnon, supra, 688 S.W.2d 614-15 (recognizing that obligor has right to damages for breach of contract term forbidding assignment but does not render assignment ineffective); see also J. Murray, Jr., supra, § 138, p. 807. Thus, courts in numerous jurisdictions have recognized the evenhandedness of the modem approach.10

This approach is also adopted in the Restatement (Second) of Contracts. Section 322 (2) (b) of the Restatement (Second), supra, provides that the general rule is “[a] contract term prohibiting assignment of rights under the contract, unless a different intention is manifested . . . (b) gives the obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective . . . .” See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442; US. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1233 (10th Cir. 1988); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., supra, 693 F.2d 754; Liberty Life Assurance Co. of Boston v. Stone Street Capital, Inc., supra, 93 F. Sup. 2d 637; Wonsey v. Life Ins. Co. of North America, supra, 32 F. Sup. 2d 943; Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., supra, 812 F. Sup. 843-44; Jacquette v. CNA Ins. Cos., supra, Civil Action No. 98-1601; Garden State Buildings, L.P. v. First Fidelity Bank, N.A., *277supra, 305 N.J. Super. 521; First England Funding, LLC v. Travelers Indemnity Co., supra, Docket No. BER-L-5608-99; University Mews Associates v. Jeanmarie, supra, 122 Misc. 2d 440; Reuben H. Donnelley Corp. v. McKinnon, supra, 688 S.W.2d 615.

In the present case, the annuity contract provided that “[n]o payment under this annuity contract may be . . . assigned” by the plaintiff. This antiassignment provision limited the plaintiffs right to assign, but not his power to do so. The provision did not contain any express language to limit the power to assign or to void the assignment itself. Therefore, in accordance with the modem approach, we conclude that the plaintiffs assignment to Wentworth is valid and enforceable despite the plaintiffs breach of the contract’s antiassignment provision. We further conclude, however, that Safeco is free to sue for any damages that it might sustain as a result of the assignment by bringing an action for breach of contract against the plaintiff as assignor. See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442; Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, supra, 863 F. Sup. 137-38; Macklowe v. 42nd Street Development Corp., supra, 170 App. Div. 2d 389; Sullivan v. International Fidelity Ins. Co., supra, 96 App. Div. 2d 556. Alternatively, Safeco may pursue damages from Wentworth, who, as the assignee, “ ‘stands in the shoes of the assignor.’ ” 3 E. Farnsworth, supra, § 11.8, p. 105; see id., 105-107; 3 S. Williston, Contracts (3d Ed. I960) § 404, p. 5, and § 432, pp. 181-83. Safeco, therefore, is fully protected against any actual damages that it might sustain as a result of the plaintiffs breach of the antiassignment provision.11 *278The modem approach thus serves the dual objectives of free assignability of contracts together with full compensation for any actual damages that might result from an assignment made in breach of an antiassignment provision.

The judgment is affirmed.

In this opinion BORDEN and PALMER, Js., concurred.