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Lingel v. Olbin8/29/2000
AFFIRMED
Plaintiffs/appellants Rick and Joyce Lingel appeal from the trial court's order granting summary judgment in favor of defendants/appellees Patricia and Michael Olbin in the Lingels' breach of contract action, which claimed entitlement to one-half of any proceeds recovered in the Olbins' wrongful death action for the death of Erik Olbin, the biological son of Patricia Olbin and Rick Lingel. The Lingels argue that the trial court erred in refusing to enforce the parties' agreement to share the proceeds of the wrongful death claim as well as contractual proceeds from an automobile insurance policy, finding both subject to the rule against assignment of personal injury claims. For the reasons set forth below, we conclude that such agreements are not enforceable in Arizona and, therefore, we affirm.
Facts and Procedural History
We view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion below. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 799 P.2d 810 (1990). The material facts are largely undisputed. As noted above, Erik Olbin was the natural child of Patricia Olbin and Rick Lingel. After Rick and Patricia divorced, Rick relinquished his parental rights to Erik, and Patricia's new husband, Michael, adopted him. In May 1997, Erik was killed in a traffic accident at the age of twenty-four. Shortly thereafter, the Lingels and the Olbins entered into "an oral contract" in which they agreed to share equally Erik's estate, any insurance benefits "relating to Erik's death," and proceeds from any wrongful death action. An attorney friend of the Lingels, who had represented Erik in another matter, was present for this discussion. Rick later asked Michael to confirm the agreement in writing, which he did. Acting on the Olbins' desire "to get things moving," Rick brought a wrongful death action as Erik's "surviving father" against the driver who had struck and killed Erik, seeking to recover his damages for lost consortium, burial expenses, and other items. The Olbins' attorney subsequently advised them that the Lingels had no right to recover for Erik's death and, at the Olbins' request, informed the Lingels they would not be sharing in Erik's estate or "any wrongful death recovery." The Olbins' attorney secured settlements against the driver and his insurance company and recovered underinsured motorist (UIM) benefits from an automobile insurance policy purchased by the Lingels that had covered Erik at the time of the accident. The Olbins also brought a wrongful death action against Pima County based on negligent road design.
The Lingels sued the Olbins, alleging claims of breach of contract and breach of the covenant of good faith and fair dealing. The Olbins filed a counterclaim, seeking the return of money they had paid the Lingels and certain items in Erik's estate. The Olbins also filed a third-party complaint against the Lingels' attorney friend for breach of fiduciary duty, alleging he had led the Olbins to believe he would "protect their interests." The Olbins further alleged the attorney had erroneously advised them about the necessity of having a personal representative appointed for Erik's estate and about the Lingels' standing to file a wrongful death action and to inherit from the estate.
In their motion for partial summary judgment, the Olbins argued that a contract assigning a wrongful death action and all proceeds therefrom is not enforceable; that the purported agreement with the Lingels violated the statute of frauds; and that Rick Lingel, as the personal representative of Erik's estate, had breached his fiduciary duty to them. In opposition, the
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