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August 30, 1994



The opinion of the court was delivered by: ROBERT L. CARTER

ROBERT L. CARTER, District Judge

 Plaintiff, Pro Cardiaco Pronto Socorro Cardiologica, S.A. ("Pro Cardiaco"), has moved for summary judgment pursuant to Rule 56, F.R.Civ.P., and seeks damages of $ 25,000. Defendant Prudential Insurance Company of America ("Prudential") has cross-moved for summary judgment.


 The undisputed facts are as follows. Pro Cardiaco owns and operates a hospital located in Rio de Janeiro, Brazil, which specializes in providing cardiac care. On August 14, 1988, Vivian Trussell was admitted at Pro Cardiaco for medical treatment. Trussell and her only child, Earl, who accompanied her, indicated that they would probably not be able to pay for her care themselves. Vivian Trussell, however, was insured by Prudential. Upon her arrival at the hospital, Trussell presented a copy of her Certificate of Insurance (the "Certificate"), and was subsequently admitted. Pro Cardiaco treated Trussell from August 14, 1988 until she died on October 5, 1988. At the time of Trussell's death, her medical expenses at the hospital totalled approximately $ 63,575.

 When Earl Trussell proved unable to pay his mother's bill, Pro Cardiaco sought payment directly from Prudential, even though the Certificate indicated that payments for foreign hospital expenses could be made only to the insured. *fn1" The hospital submitted a final invoice to Prudential on October 20, 1988, along with an affidavit (the "Affidavit") signed by Earl Trussell stating that: 1) he was Vivian Trussell's only son and heir, 2) Pro Cardiaco was the "Authorized Representative" concerning the claim of Vivian Trussell, and 3) all payments should be made to Pro Cardiaco only. *fn2"

 On January 6, 1989, Prudential processed a check made out to "Earl Trussell for Mrs. Vivian Trussell" in the amount of $ 25,000, the maximum amount payable under Trussell's policy. In February, 1989, Pro Cardiaco sought payment from Prudential, and was informed that payment had been made to Vivian Trussell's estate. Pro Cardiaco, by letter dated September 1, 1989, demanded payment from Prudential, which refused to pay. Then, on December 18, 1991, Pro Cardiaco commenced this action against Prudential, Earl Trussell and Vivian Trussell's estate. Earl Trussell could not be located, and only Prudential filed an answer to the complaint. Cross-motions for summary judgment were filed.


 In order to prevail on a summary judgment motion, the moving party must show that "there is no genuine issue as to any material fact and that [it is] entitled to a judgment as a matter of law." Rule 56, F.R.Civ.P. The court is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue" which must be reserved for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Uncertainty regarding the true state of any material fact will defeat a motion for summary judgment. United States v. One Tintoretto Painting Entitled "The Holy Family with St. Catherine & Honored Donor", 691 F.2d 603, 606 (2d Cir. 1982).

 At issue here is the nature and validity of the purported assignment by Earl Trussell to Pro Cardiaco. Pro Cardiaco contends that Earl Trussell validly assigned Vivian Trussell's insurance proceeds, and that Prudential, which had notice of the Affidavit, was therefore obligated to pay plaintiff directly. Prudential does not deny prior knowledge of the Affidavit, but argues instead that the Certificate rendered void all assignments to foreign hospitals, and that Pro Cardiaco had notice of the Certificate's terms before drafting the Affidavit.

 With limited exception, contractual provisions prohibiting assignments are treated as personal covenants. Citibank, N.A. v. Tele/Resources, Inc., 724 F.2d 266, 268 (2d Cir. 1983); Allhusen v. Caristo Constr. Corp., 303 N.Y. 446, 450, 103 N.E.2d 891 (1952). An assignment made in violation of a personal covenant prohibiting assignments is enforceable, although it does give rise to a damages action against the assignor. Citibank, N.A., 724 F.2d at 268.

 However, "when 'clear language' [of prohibition] is used, and the 'plainest words . . . have been chosen,' parties may 'limit the freedom of alienation of rights and prohibit the assignment.' Allhusen, 303 N.Y. at 452 (quoting State Bank v. Central Mercantile Bank, 248 N.Y. 428, 435, 162 N.E. 475 (1928)); see Sullivan v. Int'l Fidelity Ins. Co., 96 A.D.2d 555, 556, 465 N.Y.S.2d 235, 237 (2d Dept. 1983) (assignments void "if the contract contains clear, definite and appropriate language declaring the invalidity of such assignments"); University Mews Assoc. v. Jeanmarie, 122 Misc. 2d 434, 440, 471 N.Y.S.2d 457, 461 (Sup. Ct. 1983) (to render assignment void, provision "must specifically eliminate the power as well as the right to assign"). Prudential contends that the language of the non-assignment clause in the Certificate permitting payment only to "you" (i.e., the insured), combined with the absence of a procedure whereby Prudential could consent to an assignment otherwise made or sought to be made by an insured (a "consent procedure"), voids any assignment made in contravention of the Certificate's terms.

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