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Window washing woes

Window washing woes

March 27
09:21 2017

Window washing woes

In a lawsuit that preceded this case, the Clinton Condominium Owners Association brought claims for negligence and breach of contract against We Do Windows, Inc., a window washing company that the association had hired to work at its condominium building. We Do Windows tendered those claims to its general liability insurer, Truck Insurance Exchange (TIE), to defend and indemnify it. The insurer denied the tender.

At some point the association and We Do Windows entered into a settlement and, as part of that settlement, We Do Windows assigned its claims against TIE to the association. Thereafter the association, as assignee of We Do Window’s rights and claims, filed an action against TIE for breach of contract and breach of the covenant of good faith and fair dealing. The policies that TIE issued to We Do Windows contained anti-assignment clauses, which provided that We Do Windows could not assign any rights or claims under the policy without the insurer’s consent.

TIE filed a motion for summary judgment, asserting that the association had no standing to bring its claims because the anti-assignment clauses “provide that We Do Windows’ ‘rights and duties under this policy may not be transferred without [the insurer’s] written consent,’ ” and the insurer never provided such consentThe association argued that, regardless of the text of the policies, an Oregon statute made the anti-assignment clauses “invalid and unenforceable.”

The court agreed with TIE and granted its motion for summary judgment, determining that the anti-assignment clauses were “clear, unambiguous, valid and enforceable,” and further that they were not “rendered unenforceable by the statute.” Accordingly, the court concluded that the association lacked “standing to assert its claims against [Truck Insurance Exchange].” The association appealed.

On appeal, the association again asserted that the policies’ anti-assignment provisions were invalidated by the above-mentioned statute. TIE responded that the association’s argument was untenable in light of the Oregon Supreme Court’s ruling in a similar case.

The court agreed that the Supreme Court’s ruling controlled the outcome in the present case. The court noted that, contrary to the association’s contention, the relevant statute related to the assignment of claims that arise from a judgment against the insured, not from the underlying insurance policy. In other words, the court said, the ruling in the Supreme Court case was directed toward allowing an insured to assign excess judgment claims. The trial court’s judgment was affirmed.

Clinton Condominium Owners Association vs. Truck Insurance Exchange-Court of Appeals of Oregon-November 30, 2016-2016 WL 6994376.

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