Kelly Health Care, Inc. v. Prudential Ins. Co. - 226 Va. 376, 309 S.E.2d 305 (1983)

Rule:

An assignment is a transfer, but a transfer is not necessarily an assignment. If the transfer is less than absolute, it is not an assignment; the obligee must have intended, at the time of the transfer, to dispossess himself of an identified interest, or some part thereof, and to vest indefeasible title in the transferee. The intention of the assignor is the controlling consideration. The intent to transfer a present ownership of the subject matter of the assignment to the assignee must be manifested by some word, written or oral, or by some act inconsistent with the assignor's remaining as owner. This has sometimes been called a present appropriation. The assignor must not retain any control over the fund or property assigned, any authority to collect, or any form of revocation. Under this definition, the appointment of an agent or the grant of a power of attorney cannot qualify as an assignment. Both are revocable, and the latter expires at the grantor's death.

Facts:

The health care facility first earned a default judgment against the insured, then pursued its claim against the insurer on the theory that the insurer was the insured's assignee. As proof of assignment, the health care facility relied upon two documents drafted by the insurer and signed by the insured that authorized the insurer to make payments on the insured's behalf. Summary judgment was granted in favor of the insurer. The health care facility appealed. 

Issue:

Could the health care facility bring the instant suit against the insurer based on the theory that the insurer was the insured's assignee? 

Answer:

No.

Conclusion:

The reviewing court upheld the grant of summary judgment. An assignment is a transfer, but a transfer is not necessarily an assignment. If the transfer is less than absolute, it is not an assignment; the obligee must have intended, at the time of the transfer, to dispossess himself of an identified interest, or some part thereof, and to vest indefeasible title in the transferee. Here, the documents appointed the insurer as the agent and granted it authority in the nature of a power of attorney to make such payments. As such, each was revocable, so neither was an assignment. Therefore, the health care facility could not bring the instant suit.