Star Windshield Repair, Inc. v. Western National Insurance Co.

*351CONCURRENCE

ANDERSON, G. BARRY, Justice

(concurring).

I concur in the result reached by the majority but would use a different analytical framework based on traditional interpretations of anti-assignment language in insurance policies.

I begin with the observation that most jurisdictions have interpreted insurance policy anti-assignment language as limited to pre-loss circumstances. 5A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 3458 (rev. ed. 1970). The majority notes that most jurisdictions limit the validity of anti-assignment clauses to pre-loss assignments in insurance contracts, but instead follows a statutory interpretation analysis. Because I conclude that the reasoning used in the majority of jurisdictions limiting the validity of anti-assignment clauses to pre-loss assignments is persuasive, I would adopt that interpretation here.

The Ninth Circuit explained:

Risk characteristics of the insured determine whether the insurer will provide coverage, and at what rate. An assignment could alter drastically the insurer’s exposure depending on the nature of the new [policyholder], “No assignment” clauses protect against any such unforeseen increase in risk. When the loss occurs before the transfer, however, the characteristics of the [assignee] are of little importance: regardless of any transfer the insurer still covers only the risk it evaluated when it wrote the policy-

N. Ins. Co. of N.Y. v. Allied Mut Ins. Co., 955 F.2d 1353, 1358 (9th Cir.1992). Similarly the Second Circuit reasoned that “once the insured-against loss has occurred, the policy-holder essentially is transferring a cause of action rather than a particular risk profile.” Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170-71 (2d Cir.2006).1

Furthermore, although it is not controlling, we have spoken persuasively on this general issue. In Windey v. N. Star Farmers Mut. Ins. Co., we stated:

Assignment, 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.

231 Minn. 279, 283, 43 N.W.2d 99, 102 (1950).

The advantage of the approach used here is that it does not involve detailed statutory interpretation, does not involve our court in arguably rewriting insurance policies, and is consistent with not only our decision in Windey but more generally with our long-standing approval of permitting assignment of choses in action.2

*352I would hold that the anti-assignment clauses in insurance contracts before us do not apply to post-loss assignments. Because such a holding would resolve the issue before us, I would not analyze the statutory provisions.

. For more authority supporting the majority rule see Conrad Brothers v. John Deere Insurance Co., 640 N.W.2d 231, 237 (Iowa 2001), which lists the many jurisdictions that have adopted some version of the majority rule. See also, Restatement (Second) of Contracts § 322(2)(a) ("A contract term prohibiting assignment of rights under the contract, unless a different intention is manifested, does not forbid assignment of a right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of his entire obligation.”).

. A chose in action is "[t]he right to bring an action to recover a debt, money, or thing.” Black’s Law Dictionary 258 (8th ed. 2004). See BAACT Corp. v. Executive Aero, Inc., 312 Minn. 143, 147, 251 N.W.2d 107, 109 (1977) (holding that a chose in action was duly assigned); Leuthold v. County of Redwood, 206 Minn. 199, 202, 288 N.W. 165, 167 (1939) (" 'The law of this state is that an assignment *352of a chose in action is valid and complete in itself upon the mutual assent of the assignor and assignee, without notice to the debtor.' ") (quoting Lewis v. Bush, 30 Minn. 244, 245, 15 N.W. 113, 113 (1883)).