Lingel v. Olbin8/29/2000
iz. 599, 647 P.2d 1197 (App. 1982); Harleysville Mut. Ins. Co. v. Lea, 2 Ariz. App. 538, 410 P.2d 495 (1966); see also Liberty Mut. Ins. Co. v. Thunderbird Bank, 113 Ariz. 375, 555 P.2d 333 (1976) (generally, claims that survive the plaintiff's death are assignable). The Lingels argue that because an action for wrongful death is a statutory, as opposed to common law, cause of action, A.R.S. §§ 12-611 to 12-613, it necessarily survives the death of the person entitled to assert it as a property right and is therefore "freely assignable," citing several cases from other jurisdictions. We note that none of those cases involves wrongful death actions and some offer slim support for the Lingel's theory. After examining our own statutes and precedents, we reject their argument for several reasons.
First, in Arizona, whether a claim is statutory is not determinative of its assignability or survivability. As the Olbins point out, the question of whether a claim survives a person's death is answered by Arizona's survival statute, A.R.S. § 14-3110. That statute provides:
Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.
In their action for the wrongful death of their adult son, the Olbins apparently asserted only a claim for "loss of consortium." But, under § 14-3110, a claim for loss of consortium does not survive the death of the person entitled to assert it. Thus, under the rationale of Harleysville, that claim could not be assigned. Cf. Badia v. City of Casa Grande, 195 Ariz. 349, 988 P.2d 134 (App. 1999) (pursuant to § 14-3110, damages for plaintiff's pain and suffering did not survive her death from unrelated injuries); Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (App. 1987) (because claim for loss of economic support upon death of child is not specifically excluded by survival statute, it survived mother's death as property right). And, even if the Olbins' claim or any portion of it did survive, that would not necessarily make it assignable. Section 14-3110 makes no mention of assignability and, for those claims that do survive, only permits the personal representative of the decedent to assert the claim.
Second, as the Lingels correctly note, a cause of action for wrongful death is purely statutory. Under the terms of Arizona's wrongful death act, such an action can only be brought in the names of the categories of persons specifically listed in § 12-612. Solomon v. Harman, 107 Ariz. 426, 489 P.2d 236 (1971); Knauss v. DND Neffson Co., 192 Ariz. 192, 963 P.2d 271 (App. 1997). In Mayo v. White, 224 Cal. Rptr. 373, 377 (App. 1986), the California Court of Appeals held, based on California's wrongful death statute which also limits those who can assert such claims: " cause of action for wrongful death is personal to those persons authorized to maintain the suit under the statute and may not be assigned." See also Clar v. Dade County, 116 So. 2d 34 (Fla. App. 1959); Regie de l'assurance Automobile du Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987). The Lingels generally do not fall within any of the categories of persons set forth in § 12-612.
Finally, "even though a cause of action for personal injury may survive, an action still may not be assignable either in whole or in part prior to judgment." Harleysville, 2 Ariz. App. at
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