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IN THE

APPELLATECOURT OF ILLINOIS

SECONDDISTRICT

JUSTICE GALASSO delivered the opinion of the court:

The intervenor, Safeco Life Insurance Company (Safeco), appeals from anorder of the circuit court of Du Page County approving the petitioner's, HermanNitz, Sr.'s, request to make an assignment of his benefits under a structuredsettlement agreement. We reverse the order of the trial court.

The record in this case reveals the following facts. The petitioner fileda complaint against certain defendants, not parties to this appeal, allegingnegligence that resulted in injuries to him and seeking money damages. Subsequently, the petitioner entered into a structured settlement agreement withNational Union Fire Insurance Company (also not a party to this appeal), actingon behalf of the defendants. Under the settlement agreement, the petitioner wasto receive a life annuity that paid the petitioner $3,000 per month, with 25years guaranteed, increasing by 2% annually. The agreement provided in pertinentpart as follows:

   "Plaintiff is and shall be a general creditor to the Defendantand/or the Insurer. Said payments to Plaintiff required herein cannot be accelerated, deferred, increased or decreased by the Plaintiff and no part of thepayments called for herein or any assets of the Defendant and/or the Insurer isto be subject to execution or any legal process for any obligation in any manner,nor shall the Plaintiff have the power to sell or mortgage or encumber same orany part thereof, not anticipate the same, or any part thereof, by assignment orotherwise." (Emphasis added.)

The agreement further provided, however, that the insurer could make a "'qualified assignment' within the meaning of Section 130(c) of the InternalRevenue Code of 1986, of the Defendant's and/or the Insurer's liability to makethe periodic payments required herein." The assignment was duly made to SafecoAssigned Benefits Service Company (Sabsco). Pursuant to its rights under theagreement, Sabsco purchased an annuity policy from Safeco to fund its liabilityto make the periodic payments to the petitioner.

On February 8, 1999, pursuant to section 155.34 of the Illinois InsuranceCode (215 ILCS 5/155.34 (West 1998)), the petitioner filed a petition seekingcourt approval of an assignment of certain of the periodic payments due him underhis structured settlement agreement to Singer Asset Finance Company (Singer). He further requested that the assigned benefits be paid to a trust at an addressin New York. Upon notice of the filing of the petition, Safeco filed anappearance and objections to the petition. The petitioner filed a response toSafeco's objections, raising, inter alia, the question of Safeco's standing toassert a violation of the settlement agreement since it was neither a party tothe agreement nor in privity with any party to the agreement. However, at thehearing on the petition, the petitioner did not contest Safeco's participationin the proceedings.

After hearing the testimony of the petitioner and the arguments of counsel,the trial court found that, while there could be no permanent assignment underthe settlement agreement, the agreement did not prohibit redesignation of thepayments, and, therefore, the petitioner was not making an assignment that wasprohibited under the settlement agreement. However, the trial court also statedas follows:

"In light of that, the court will rule as follows: No. 1, althoughthe court finds that any further assignments will clearly not be in yourbest interest, Mr. Nitz, this one in and of itself, since he is under nodisability and on the basis of the fact that he wants to get rid of thehome, the court finds that it may not be absolutely prohibitively againsthis best interest. It may not be wise to do, but what's wise to do andwhat's in your best interest are obviously two different things. I wouldnot recommend you do this, but the court never can give advise [sic] toany party. So in and of itself the assignment does not require the courtto rule that it's absolutely contrary to your best interest."

The trial court approved the assignment, and Safeco filed a timely noticeof appeal.

We address, first, the petitioner's argument that Safeco lacks standing tobring this appeal. The petitioner points out that Safeco is merely the holderof the funds, and its only duty is to make the periodic payments as directed bySabsco or the petitioner. The petitioner maintains that Safeco has suffered noinjury as a result of the trial court's order, since the order only requires itto redirect the payments to a new address under the petitioner's name. Finally,the petitioner notes that Sabsco, the owner of the annuity, chose not to contestthe petition.

Standing in Illinois requires only some injury in fact to a legallycognizable interest. Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 492 (1988); see also City of Carbondale v. City of Marion, 210 Ill. App.3d 870 (1991). In order to determine whether a party has standing, the courtmust determine whether the party would be benefitted by the relief granted. Board of Trustees of Community College District No. 508 v. Rosewell, 262 Ill.App. 3d 938, 954 (1992).

The above cases, relied on by the petitioner, concern standing in the trialcourt as opposed to standing on appeal, which is the issue before this court. This court has held that any party to a case may seek appellate review from afinal judgment that is adverse to his interests, and whether the party wasactually aggrieved does not determine his right to appeal. See Hamann v.Sumichrast, 222 Ill. App. 3d 962, 986 (1991). A party has standing to appealwhere he or she has some real interest in the cause of action or a legal orequitable interest in the subject matter of the controversy. Duncan v. Churchof the Living God, 278 Ill. App. 3d 588, 593 (1996). Finally, a party maychallenge any judgment adverse to its interests. St. Paul Fire & MarineInsurance Co. v. Downs, 247 Ill. App. 3d 382, 390 (1993). Even a nonparty hasstanding to appeal if he has a direct, immediate, and substantial interest in thesubject matter that would be prejudiced by the judgment or benefitted by itsreversal. Downs, 247 Ill. App. 3d at 390.

Safeco's objections to the petition in this case were accompanied, interalia, by the affidavit of Kevin Woods, employed by Safeco in its settlementannuities department. In his affidavit, Mr. Woods stated that the attempted orproposed assignments of structured settlement annuity payments resulted inburdensome administrative problems such as staffing changes to handlecorrespondence and to follow up tasks in order to respond to information andprocessing requests related to the proposed or attempted assignments andincreased legal and administrative expenses. Mr. Woods also stated that Safecowas concerned about the potential for double liability and tax ramifications.

In light of the adverse financial and administrative impact Safeco allegesit would suffer if the order approving the assignment was affirmed, we concludethat Safeco has standing to appeal from that order. Compare Midland States LifeInsurance Co. v. Hamideh, 311 Ill. App. 3d 127 (1999) (part of the rationalebehind Illinois lottery law's prohibition against assignment of lottery proceedswas the additional financial burden to the state).

We now turn to the issues raised by this appeal.

Section 155.34 states in pertinent part as follows:

"(b) No person who is the beneficiary of a structured settlement ofa claim for personal injury may assign in any manner the payments of thesettlement without prior approval of the circuit court of the county wherean action was or could have been maintained." 215 ILCS 5/155.34(b) (West1998).

We observe, first, that section 155.34 was enacted by the legislature toprotect structured settlement recipients. 90th Ill. Gen. Assem., HouseProceedings, April 10, 1997, at 94-104. The legislature was concerned that suchpersons were accepting offers of ready, but deeply discounted, cash fromcompanies in exchange for their settlement annuity payments and then ending uppenniless and without resources in the future. See 90th Ill. Gen. Assem., HouseProceedings, April 10, 1997, at 96-97 (statements of Representative Leitch). Theclear language of section 155.34(b) requiring court approval for assignments ofpayments presupposes that the payments are in fact assignable. Where astructured settlement agreement does not permit the payments to be assigned, thecourt's authority to act on a petition seeking approval of the assignment ofpayments under such an agreement is not invoked, and the petition should bedismissed. Therefore, we must first determine the assignability of the paymentsunder the terms of the structured settlement agreement in this case before we canuphold the trial court's exercise of discretion in approving the assignment. SeeGreen v. Safeco Life Insurance Co., 312 Ill. App. 3d 577, 580 (2000) (court'sapproval or disapproval of an assignment of structured settlement payments undersection 155.34 is reviewed under an abuse of discretion standard). With theforegoing in mind, we turn to Safeco's first issue on appeal.

Safeco contends that the granting of the petition that sought assignmentof the settlement payments was inconsistent with the trial court's finding thatthe petitioner was seeking a redesignation of benefits rather than an assignment.

There is no dispute that the structured settlement agreement in this casecontained an antiassignability provision. However, while the trial courtdetermined that the settlement agreement prohibited the petitioner from"permanently" assigning any of his payments under the settlement agreement, itdetermined that the petitioner's redesignation of his payments was not a"permanent" assignment and, therefore, not prohibited under the terms of thesettlement agreement.

Construing the language of a contract is a question of law, and we reviewa trial court's determination of a contract de novo. Henderson v. RoadwayExpress, 308 Ill. App. 3d 546, 548 (1999), appeal denied, 188 Ill. 2d 564 (2000). When construing a contract, our duty is to effectuate the intent of the partiesto the contract. Henderson, 308 Ill. App. 3d at 548. The intent of the partiesmust be determined from the plain and ordinary meaning of the language of thecontract unless the contract is ambiguous. Henderson, 308 Ill. App. 3d at 548. Parties to a contract are free to include any terms they choose, as long as thoseterms are not against public policy and do not contravene some positive rule oflaw. Green, 312 Ill. App. 3d at 581. Such a contract is binding on bothparties, and it is the duty of the court to construe it and enforce the contractas made. Green, 312 Ill. App. 3d at 581.

The plain language of the settlement agreement prohibits all assignments,whether they are temporary or permanent in nature. Paragraph 3 of the agreementspecifically states that the petitioner does not have the power "to sell ormortgage or encumber [the payments], or any part thereof, nor anticipate same,or any part thereof, by assignment or otherwise." (Emphasis added.) Further, theagreement between the petitioner and Singer, which was attached as an exhibit tothe petition, is captioned "Purchase Agreement." Under the terms of thatagreement, the petitioner "sells, transfers, assigns, sets over and conveys" toSinger a portion of his periodic payments under the settlement agreement.Therefore, contrary to the trial court's finding, the transaction between thepetitioner and Singer was substantially more than a redesignation of where thepayments should be sent. Finally, if in fact all the petitioner was seeking wasto change the location of where he wished his payments sent, as opposed to makingan assignment, there would be no need to file a petition under section 155.34.

The petitioner responds that, in light of the qualified assignment enteredinto by National Union and Sabsco, the antiassignment provisions of paragraph 3of the settlement agreement do not apply. Instead, the petitioner asserts thatparagraph 4, which deals with the qualified assignment, applies. Paragraph 4provides in pertinent part as follows:

"If the liability to make the periodic payments is assigned by wayof a 'qualified assignment':

a) The periodic payments from the Assignee cannot beaccelerated, deferred, increased or decreased by the Plaintiff[.]"

The petitioner maintains he was free to make an assignment since that is notprohibited under subparagraph (a).

As we previously stated, when construing a contract our duty is toeffectuate the intent of the parties. Henderson, 308 Ill. App. 3d at 548. Boththe settlement agreement and the uniform qualified assignment utilize thequalified assignment language of section 130(c)(2)(B) of the Internal RevenueCode. 26 U.S.C.