Thе right of a bank to collect from a depositor’s insurance company for funds belonging to the depositor, and removed by thieves from the bank’s night depository facility, is presented in this appeal.
Plaintiff-aрpellee, The Valley National Bank of Arizona, a national banking association, as assignee of its depositor, brought an action against defendant-appellant, The Aetna Casualty & Surety Compаny, a Connecticut corporation seeking to enforce an insurance policy issued by the defendant insurance company to the depositor, Mrs. June Schiebel. On cross-motion for a summary judgment, the trial court granted judgment in favor of the plaintiff bank in the sum of $1,188.37. Defendant has appealed from the judgment and denial ¡of its motion for a new trial.
-' As''-'’indicated by the cross-motions for summary judgment, there are no factual disрutes in this case.
Prior to May 18, 1968, the defendant insurance company had issued a policy of indemnity insurance to Mrs. June Schiebel, doing business as McDonald’s Self Service System, which covered any loss by theft suffered by Mrs. Schiеbel. Also prior to that date, Mrs. Schiebel had entered into a Night Depository Agreement with the plaintiff bank by which Mrs. Schiebel was given the right to deposit cash and commercial paper in a locked depository facility at the bank after regular banking hours. Her agreement contained the following clause:
“The undersigned [Mrs. Schiebel] agrees that each use of the night depository facilities shall be at the solе risk of undersigned and further agrees that the relation of debtor and creditor between said bank. and the undersigned shall not arise out of any use or attempted use of such facilities * *
On the evening of May 18, 1968, Mrs. Schiebel dеposited in the night depository facility of the Indian School-Central Office of the plaintiff bank certain funds consisting of cash and checks in the sum of $1,333.00. Some time during that night a thief, or thieves, broke into the night depository fаcility at that branch and removed Mrs. Schiebel’s funds. A portion of these funds were recovered, but the sum of $1,188.37 of this stolen money was never recovered.
Some fourteen days following the burglary of the night depository fаcility, the bank entered into an agreement with Mrs* Schiebel whereby the bank paid Mrs* Schiebel a certain sum of money in return for which Mrs. Schiebel gave the bank a release of all liability arising out of the burglary and assigned her rights under her insurance policy with the defendant to the bank. This assignment was without the approval or consent of the defendant insurance company.
The bank subsequently made demand for payment which the insurаnce company, after a full investigation, denied. Neither the bank nor Mrs. Schiebel ever filed a formal “proof of loss” with the insurance company. The policy of insurance issued by the defendant contаined the following-clauses :
“Assignment of interest under this policy shall not bind the company until its consent is endorsed thereon-
and
“No action shall lie against the company unless, as a condition precedent, therеto, there shall have been full compliance with all the terms of this policy * *
The defendant makes four contentions, on appeal:
(1) The bank was without authority to-maintain the present action because the- *15 defendant had failed to consent to an assignment оf any rights under the policy;
(2) The bank and Mrs. Schiebel having failed to file a formal proof of loss as required by the policy are precluded from maintaining this action;
(3) The insured, Mrs. Schiebel, having been reimbursed by the bank hаs not suffered any “loss” under the terms of the policy and therefore the defendant is not liable;
(4) The release given by Mrs. Schiebel to the bank destroyed the defendant’s subrogation rights, and the defendant is thereby releаsed from liability. These contentions shall be discussed in the order presented.
The defendant, after citing the provisions of the policy against assignments without its consent, maintains that as far as it is concerned, Mrs. Schiеbel’s assignment of her rights under the policy was void and plaintiff acquired no rights against the defendant by reason of that assignment.
The general rule appears to be that liability and indemnity insurance policies arе regarded as personal contracts and cannot be assigned, especially where an assignment is expressly prohibited by the terms of the policy, unless the insurer consents. Rendelman v. Levitt,
However, this rule is bаsed upon the right of the insurer to choose its insured so as to know its risks. Therefore, it is not applicable when an assignment is made by an insured after the liability-causing event has occurred. Rodgers v. Pacific Coast Casualty Co.,
In this case we hold that Mrs. Schiebel could validly assign her rights to the proceeds of her policy with defendant after the event which gave rise to defendant’s liability under the pоlicy had occurred without defendant’s prior consent.
Defendant next contends that the failure of plaintiff or its insured to file a formal proof of loss as required by the policy relieved defendant of liability, rеlying primarily upon the effect of A.R.S. § 20-1130. This statute provides as follows:
“Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
* * * * * *
“3. Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim.”
Defendant contends that this statute modifies the previous common law rule in this state, as expressed in Overland-Arizona Co. v. California Insurance Co.,
*16
Normally, in the absence of a specific requirement in a policy that a particulаr form or type of proof of loss be utilized in reporting to the company, it hjqs generally been held that any method which serves to advise the insurer of the loss so as to enable it to adequately consider its rights аnd liabilities shall suffice. Overland-Arizona Co. v. California Insu
r
ance Co., supra; Aetna Life Ins. Co. v. Duncan,
Defendant next contends that its insured suffered no “loss” as the result -of the May 18, 1968 burglary — the plaintiff having reimbursed its insured — and that therefоre the defendant can have no liability under the terms of its policy. Defendant’s argument is based on the propoósition that its policy is one for indemnity ¡against loss only, as compared to a policy for indеmnity against liability. Unfortunately, defendant did not deem fit to make its policy, which was an exhibit before the trial court, part of the record here ¡ on appeal. However, we must assume in 'the absence of the policy itself, that “loss” by theft was covered under the terms of defendant’s policy or this would have been raised as a defense to this action.
It is the general rule that an insurer, under an indemnity of loss policy, as compared to an indemnity аgainst “liability” policy, indemnifies for the
consequences of an event if it should happen,
Ramey v. Hopkins,
Defendant’s last contention is based upon the proposition that plaintiff was a tortfeаsor or wrongdoer insofar as the loss of Mrs. Schiebel’s money was concerned and therefore a release of the wrongdoer from liability by Mrs. Schiebel operated . to defeat the defendant’s right of subrogation and this loss of subrogation rights operates to relieve defendant from liability, citing Aetna Casualty & Surety Co. v. Phoenix National Bank & Trust Co.,
For the foregoing reasons, the judgment of the trial court is affirmed.