OPINION
Plaintiff, Pro Cardiaco Pronto Socorro Cardiológica, S.A. (“Pro Cardiaco”), has moved for summary judgment pursuant to Rule 56, F.R.Civ.P., and seeks damages of $25,000. Defendant The Prudential Insurance Company of America (“Prudential”) has cross-moved for summary judgment.
I.
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. 1 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. 2
On November 8,1988, Prudential informed Earl Trussell that benefits were payable to his mother’s estate, and that if no Executor *137 or Administrator was going to be appointed, payment would be made “to a close relative or individual who had assumed the deceased’s last debts and liabilities.” Prudential delivered a form to Trussell to be completed to show that he was such “close relative or individual,” which form Trussell completed and returned. Mrs. Trussell’s estate was never formally administered.
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.
II.
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,
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.,
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,
Notwithstanding Prudential’s argument, the court finds that the clause lacks the clear language required to make the assignment void.
See Allhusen,
Defendant next contends that the Affidavit did not constitute an assignment, but merely authorized Pro Cardiaco to receive the insurance proceeds without giving the hospital a right to maintain an action against Prudential.
See Miller v. Wells Fargo Bank Int’l Corp.,
The Affidavit meets both of these requirements. Pro Cardiaco (i.e., the third party) drafted the Affidavit and kept a copy in its possession, and the Affidavit signed by Earl Trussell (i.e., the assignor) itself satisfactorily directed Prudential (i.e., the obligor) to pay Pro Cardiaco from a particular fund (i.e., the amount owing to Vivian Trussell from Prudential for the treatment administered by Pro Cardiaco). Although the affidavit might have been drafted more precisely, no particular words or phrases are required to effect an assignment.
Caribe Carriers, Ltd. v. C.E. Heath & Co.,
Finally, defendant claims that Earl Trussell lacked the capacity to assign the benefits payable to his mother’s estate. However, as Vivian Trussell’s only child and sole heir, Earl Trussell had an assignable expectancy interest.
See In re Barnett,
CONCLUSION
Because the Certificate did not provide that all assignments would be void, Prudential had an obligation — upon notice of Earl Trussell’s assignment of the insurance proceeds to Pro Cardiaco — to pay Pro Cardiaco, and not Vivian Trussell’s estate. Therefore, the court grants plaintiffs motion for summary judgment, and finds Prudential liable for $25,000 damages to Pro Cardiaco. 4 Defendant’s cross-motion for summary judgment is denied.
IT IS SO ORDERED.
Notes
. The Certificate reads, in relevant part, "You [the insured] may direct in writing that benefits will be paid directly to the ... hospital ... providing the care for which benefits are paid. All benefits which have not been assigned will be paid to you. Benefits for hospital and medical care in foreign countries are payable only to you.”
. Pro Cardiaco claims that Joe Hinton, a Prudential customer service representative, in a phone conversation on October 5, 1988, stated that the "only possible solution” to Pro Cardiaco's attempt to receive payment directly from Prudential was to have Earl Trussell assign any payments due to plaintiff, which Pro Cardiaco then proceeded to do. (PL’s Mem.Supp.Mot.Summ.J. at 3). According to an affidavit submitted by Joe Hinton, however, he does not believe that he spoke with anyone from Pro Cardiaco until 1989, and that, although he does not remember any specifics from this conversation, he was "absolutely certain” that he did not tell the hospital that benefits would be paid to it if an assignment were made. He also indicated that, as a matter of practice, he would read a disclaimer to all callers stating that the Certificate of Insurance governs all claims for payment. (Hinton Aff. at 1-2).
. The court finds no support for defendant’s contention that, to be a personal covenant, a non-assignment clause must contain a consent procedure. Although true that several of the cases relied upon by defendant — in which non-assignment clauses were found to be personal covenants — involve clauses containing consent procedures, none of these cases places any particular emphasis upon the presence of such procedures, nor even identify such procedures as a factor influential in the respective court's ultimate determination.
See, e.g., Macklowe v. 42nd Street Development Corp.,
. Because the court has reached a decision on the basis of the assignment and its validity, it is not necessary to address plaintiff's argument that defendant violated the California Probate Code.
