PUBLISHED ON: July 3, 2017
For years, lawyers have structured corporate transactions around the assumption that valuable insurance assets were freely assignable without the consent of insurance companies. For decades, that assumption proved largely true in most jurisdictions.
In 2003, in Henkel Corp. v. Hart-ford Accident & Indemnity Co., 29 Cal. 4th 934 (Cal. 2003), California departed from the well-established rule that insurance companies could not restrict the transfer of insurance assets after a loss. The fear was that other jurisdictions would follow Henkel and prevent policyholders from freely assigning their insurance assets. In 2015, however, in Fluor Corp. v. Superior Court, 61 Cal. 4th 1175 (Cal. 2015), the California Supreme Court reversed itself, joining the majority of jurisdictions which held that the right to insurance proceeds for post-loss claims are freely assignable.
With heavy reliance on this 2015 California opinion, in Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., 227 N.J. 322 (2017), New Jersey joined the majority of jurisdictions in allowing post-loss assignment notwithstanding any anti-assignment clause contained in the insurance policy. More recently, in Haskell Props. v. Am. Ins. Co., 2017 N.J. LEXIS 524 (N.J. May 16, 2017), the New Jersey Supreme Court returned to the rule of free assignability and summarily remanded a case that had allowed assignment.