This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Physicians Neck & Back Clinics, P.A.,


Allied Insurance Company,


Filed July 25, 2006

Affirmed; motion denied

Wright, Judge


Ramsey County District Court

File No. C1-05-4402



David B. Ketroser, P.O. Box 427, Hopkins, MN  55343; and


Jordan M. Lewis, 1845 Walnut Street, 24th Floor, Philadelphia, PA  19103 (for appellant)


Marianne Settano, Theresa A. Bofferding, Law Office of Settano & Van Cleave, 3600 American Boulevard West, Suite 425, Bloomington, MN  55431 (for respondent)



            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Ross, Judge.


U N P U B L I S H E D  O P I N I O N




Appellant, a medical-services provider, challenges the district court’s decision granting summary judgment in favor of respondent-insurer.  Appellant argues that (1) the insurer’s nonassignment provision does not proscribe assignment of a patient’s right to no-fault insurance benefits, and (2) the written agreement signed by the patient authorizing the payment of the insurance benefits directly to appellant was a valid assignment.  In response to supplemental authority filed by appellant pursuant to Minn. R. Civ. App. P. 128.05, respondent moved to strike the submission and assess attorney fees.  We affirm and deny the motion. 



Appellant Physicians Neck & Back Clinics, P.A. (PNBC) is a professional corporation that provides medical services to patients, including those injured in automobile accidents.  Mary Shervheim was injured in an automobile accident on April 17, 2003.  At the time of the accident, Shervheim had an automobile-insurance policy with respondent Allied Insurance Company (Allied).  Shervheim’s policy with Allied included a nonassignment provision, which stated that an insured’s “rights and duties under [the] policy may not be assigned without [Allied’s] written consent.”   

Prior to receiving treatment from PNBC for injuries from the automobile accident, Shervheim signed a private-insurance-information form provided by PNBC, which stated: “I authorize payment directly to Physicians Neck & Back Clinic of medical benefits otherwise payable to me from: [Allied].”  PNBC provided Shervheim with services valued at $3,218 between December 2003 and April 2004.  When PNBC billed Allied for this amount, Allied paid Shervheim directly.  Shervheim did not pay PNBC. 

PNBC sued Allied for damages equal to the value of the services provided to Shervheim, plus interest.  PNBC and Allied filed cross-motions for summary judgment.  The district court granted summary judgment for Allied, concluding that the nonassignment provision of the Allied insurance policy held by Shervheim indicated that the parties bound by the insurance policy—the insured and the insurer—did not intend the contract to be assignable.  The district court also concluded that the PNBC payment-authorization form that Shervheim signed did not constitute an assignment of Shervheim’s rights to the funds because the form did not include a manifestation of Shervheim’s intent to transfer those rights.  PNBC sought reconsideration from the district court, which was denied.  This appeal followed. 



On appeal from summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Kvidera v. Rotation Eng’g & Mfg. Co., 705 N.W.2d 416, 420 (Minn. App. 2005).  In doing so, we view the evidence in the light most favorable to the nonmoving party and resolve any doubts on the existence of material fact issues against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Here, the facts are not in dispute.  Thus, our review is limited to the district court’s application of the law to undisputed facts.


PNBC contends that the nonassignment provision of the Allied insurance policy did not prevent Shervheim’s assignment of the payments for treatments provided by PNBC.  An insurance policy is a contract, and unless there are statutory provisions to the contrary, general principles of contract law apply.  Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 926 (Minn. 1983).  Contract interpretation presents a question of law, which we review de novo.  Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn. 1998).  The primary goal of contract interpretation is to determine and enforce the intent of the contracting parties.  Motorsports Racing Plus, Inc., v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 (Minn. 2003).  When interpreting a written instrument, “the intent of the parties is determined from the plain language of the instrument itself.”  Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004).  We will not rewrite, modify, or limit the effect of a contract provision by a strained construction when the contractual provision is clear and unambiguous.  Id. 

Contract rights generally are assignable, “except where the assignment is (1) prohibited by statute; (2) prohibited by contract; (3) or where the contract involves a matter of personal trust or confidence.”  Id. at 270 (footnote omitted).  The right to receive money due under an existing contract may be assigned even though the contract itself may not be assignable “‘unless there is something in the terms of the contract manifesting the intention of the parties that it shall not be assigned.’”  Id. at 272 (emphasis in original) (quoting Wilkie v. Becker, 268 Minn. 262, 267, 128 N.W.2d 704, 707 (1964)). 

PNBC argues that, despite the insurance-policy language barring assignment of the “rights and duties under [the] policy,” Shervheim was not prohibited from assigning the payments owed by Allied for services performed by PNBC.  PNBC, relying principally on Windey v. N. Star Farmers Mut. Ins. Co., 231 Minn. 279, 43 N.W.2d 99, (1950), argues that Minnesota law supports the assignment of insurance proceeds despite any policy language to the contrary.

In Windey,the insured assigned the proceeds due under an insurance policy despite a policy provision stating that the policy could not be assigned without the written consent of the insurer.  231 Minn. at 281-82, 43 N.W.2d at 100-01.  The Minnesota Supreme Court concluded that “[t]he provision in the contract by which the vendors agreed to apply the proceeds of the insurance in the event of loss upon the unpaid purchase price did not constitute an assignment of either the policy or the proceeds thereof.”  Id. at 283, 43 N.W.2d at 101 (emphasis added).  Instead, the Windey court reasoned that the agreement was contingent on conditions precedent that had not occurred at the time of the loss.  Id.  The agreement to assign the proceeds “gave the vendee no rights against the insurer, but only against the vendors so far as concerned the application of the proceeds in case of loss or damage.”  Id. at 283, 43 N.W.2d at 101-02 (emphasis added). 

            Despite having found that the assignment at issue was neither an assignment of the policy nor an assignment of the proceeds of the policy, the Windey court added in dictum that

[a]ssignment, after loss, of the proceeds of insurance does not constitute an assignment of the policy, but only of a claim or right of action on the policy.  Such an assignment does not void the policy under a provision that if it is assigned without the insurer’s consent it shall become void.


Id. at 283, 43 N.W.2d at 102.  Because this statement reflects a general rule regarding the assignability of postloss insurance proceeds notwithstanding the existence of a nonassignment policy provision, PNBC cites Windey as caselaw support for Minnesota’s adoption of this rule.  Other legal authorities also have relied on this aspect of WindeySee, e.g., Gopher Oil Co. v. Am. Hardware Mut. Ins. Co., 588 N.W.2d 756, 763 (Minn. App. 1999) (noting that district court relied on Windey to distinguish between a preloss and postloss assignment), review denied (Minn. Apr. 20, 1999); Reitzner v. State Farm Fire & Cas. Co., 510 N.W.2d 20, 26 (Minn. App. 1993) (“An insurance company has a right to put in its policy a provision that the policy cannot be assigned without its consent, but an insured can put in a claim under a policy and promise the claimed proceeds to another without first checking with the company.”); 3 Lee R. Russ & Thomas F. Segarla, Couch on Insurance § 35:7 (3d rev. ed. 2005) (summarizing the general rule and citing Windey as the only caselaw from Minnesota).  But see Liberty Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 463 N.W.2d 750, 755-56 (Minn. 1990) (reasoning that because assignment of insured’s interest in uninsured-motorist coverage raises problems of “champerty and maintenance,” enforcement of a nonassignment provision advances public policy).  

            In a recent decision, the Minnesota Supreme Court held that a nonassignment clause was valid and enforceable under the terms of a management agreement.  Travertine, 683 N.W.2d at 274.  In its examination of the provision of that management agreement, the supreme court declined to require any particular language to create a nonassignment clause.  Rather, the Travertine court applied the plain meaning of the words employed by the contracting parties, concluding that, “[w]hen a contract prohibits assignment in very specific and unmistakable terms, any purported assignment is void.”  Id. at 273.  The Travertine court acknowledged that

[t]he general rule is that the right to receive money due or to become due under an existing contract may be assigned even though the contract itself may not be assignable. A contract to pay money may be assigned by the person to whom the money is payable, unless there is something in the terms of the contract manifesting the intention of the parties that it shall not be assigned.


Id. at 272 (emphasis in original) (quoting Wilkie, 268 Minn. at 267, 128 N.W.2d at 707).  As long as some language expresses the contracting parties’ intent that the contract be nonassignable, such provision must be upheld.  Id. “The primary purpose of clauses prohibiting the assignment of contract rights is to protect the contracting party from dealing with parties he has not chosen to do business with.”  Id. at 271. 

            PNBC maintains that, because Travertine did not explicitly overrule Windey, Windey should control the analysis here.  PNBC also argues that Travertine is limited to cases involving management agreements and, therefore, is inapplicable to insurance contracts.  We are not persuaded.  The Travertine court itself gives an indication as to its intended scope both by its broad application of a plain-language analysis and by its favorable citation to Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874. P.2d 1049 (Colo. 1994).  In Parrish, a case with facts similar to those here, a group of insureds assigned their right to receive payment from the insurer to a medical provider in violation of a nonassignment provision of an insurance policy.  874 P.2d at 1051-52.  The Travertine court quoted Parrish as support for giving effect to contract provisions that prohibit assignment of the right to receive money payable under a contract.  683 N.W.2d at 274 n.3.  In doing so, the Travertine court described Parrish as a case “upholding [an] anti-assignment provision as preventing any effective assignment because ‘[w]hen a contractual provision is clear and unambiguous, courts should neither rewrite it nor limit its effect by a strained construction.’”  Id.  (quoting Parrish, 874 P.2d at 1055).   

            We conclude that the plain-language analysis applied by the Travertine court governs the analysis of the instant case.  First, it is the most recent statement by the Minnesota Supreme Court on the issue of nonassignment provisions in a contract. Second, although Travertine involves a management agreement, not an insurance policy, the supreme court endorses an analysis of nonassignment provisions based on the canons of contract construction—namely, an examination of the plain language of an unambiguous contract term so as to effectuate the intent of the contracting parties.  Finally, we do not interpret the supreme court’s citation to Parrish in support of its conclusion in Travertine to be inadvertent.  Rather, the Travertine court approved of the general proposition in Parrish that nonassignment provisions should be upheld when their terms are clear and unambiguous.  Id. 

Applying this rule here, the nonassignment provision of the Allied insurance policy is enforceable.  It prohibits Shervheim from assigning to PNBC the right to receive no-fault insurance benefits otherwise payable to her under the Allied policy because the plain language of the contract between Allied and Shervheim contains a provision that expressly prohibits assignment without Allied’s written consent, which was not obtained.  The provision states: “Your rights and duties under this policy may not be assigned without our written consent.”  Because such language is clear and unambiguous, it serves to prohibit the assignment at issue here. 

Accordingly, the district court did not err by enforcing the nonassignment provision and granting summary judgment to Allied.[1]  


On January 18, 2006, after the parties filed their briefs in this case, PNBC filed a citation to supplemental authority, as permitted by Minn. R. Civ. App. P. 128.05, and   submitted a copy of LIFE Rehab Servs., Inc. v. Allied Prop. & Cas. Ins. Co., No. CIV05CV1279, 2006 WL 91334 (D. Minn. Jan. 6, 2006), an action against Allied involving the same nonassignment provision at issue here.  In response to PNBC’s submission, Allied moved to strike the submission and assess attorney fees as a sanction for submitting materials that do not meet the requirements of Minn. R. Civ. App. P. 128.05.  A special-term panel of this court referred the motion to this panel. 

Minn. R. Civ. App. P. 128.05 provides:

            If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed or after oral argument but before decision, a party may promptly advise the clerk of the appellate courts by letter, with a copy to all other parties, setting forth the citations. The letter must state without argument the reasons for the supplemental citations, referring either to the page of the brief or to the point argued orally. Any response must be made promptly and must be similarly limited.

Allied argues that the decision is not “pertinent and significant authority” because the unpublished decision has no precedential value.

            PNBC has complied with the requirements of Minn. R. Civ. App. P. 128.05 by providing a case with similar facts involving the same defendant.  The letter accompanying the decision does not contain any argument.  Notwithstanding the lack of precedential value afforded this unpublished decision, given the alignment of the facts in both cases, PNBC’s submission does not violate rule 128.05.  We, therefore, deny Allied’s motion. 

            Affirmed; motion denied.

[1] In light of this conclusion, we need not address whether the assignment was ineffective because, under the private-insurance-information form that PNBC provided, Shervheim retained responsibility “for payment of incurred charges for treatment at PNBC.”