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Lingel v. Olbin8/29/2000
541, 410 P.2d at 498. The prohibition against the assignment of personal injury claims is based on public policy, such as avoiding "the dangers of maintenance and champerty." Karp, 132 Ariz. at 601, 647 P.2d at 1199. Courts that have refused to enforce champertous agreements have found the dangers to include multitudinous and useless litigation, speculation and gambling in lawsuits, and the annoyance and harassment of those who are already suffering. See Wilson v. Harris, 688 So. 2d 265 (Ala. Civ. App. 1996); Berlin v. Nathan, 381 N.E.2d 1367 (Ill. App. 1978); see also Hackett v. Hammel, 241 N.W. 68, 69 (Minn. 1932) ("The element of intrusion for the purpose of mere speculation in the troubles of others introduces the vice fatal to what otherwise would be a contract."). There is a risk that "unscrupulous people would purchase causes of action and thereby traffic in lawsuits for pain and suffering." Harleysville, 2 Ariz. App. at 541, 410 P.2d at 498; see also Lo Piano.
These same concerns arise in the wrongful death context. See Jensen (reasons prohibiting assignment of personal injury actions, increased risk of promoting maintenance and champerty, also exist with assignments of wrongful death claims). We can see no reason for treating wrongful death claims differently than those arising from personal injury for purposes of assignability.
As the trial court noted, where severe injury is involved, "the distinction between what constitutes a wrongful death and a personal injury claim is often fortuitous." See Howard Frank, M.D., P.C. v. Superior Court, 150 Ariz. 228, 722 P.2d 955 (1986). Indeed, our supreme court has drawn no distinctions between such claims when dealing with their assignability in a different, but analogous, context. See Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 436, 641 P.2d 1275, 1280 (1982) (applying common law prohibition to separate workers' compensation actions involving both personal injury and wrongful death claims consolidated for appeal, stating "decisions from this court . . . have indicated that assignment of tort or negligence claims, absent legislation to the contrary, are invalid").
Other jurisdictions have specifically held that wrongful death claims may not be assigned. See Liberty Mut. Ins. Co. v. Lookwood Greene Engineers, Inc., 140 So. 2d 821 (Ala. 1962); Mayo; Clar; Totten v. Parker, 428 S.W.2d 231 (Ky. 1967); Jensen; Reese v. Preferred Risk Mut. Ins. Co., 457 S.W.2d 205 (Mo. App. 1970). Thus, for these reasons and those enunciated above, we conclude that causes of action for wrongful death are not "freely assignable."
Assignment of Proceeds
The Lingels next contend the underlying concerns and policy reasons for the prohibition against the assignment of personal injury or wrongful death actions are not implicated by agreements to share any proceeds from these actions because such agreements are not "assignments" for purposes of the rule. In Karp, under a somewhat similar factual setting, Division One of this court extended the rule prohibiting the assignment of personal injury actions to an assignment of anticipated proceeds from such an action. The court found the public policy reasons for and legal principles underlying the prohibition against the assignment of personal injury claims equally applicable to the assignment of the proceeds of such claims. Citing our supreme court's decision in Allstate, the court in Karp found no meaningful distinction between the assignment of a claim and the assignment of the proceeds resulting from a claim.
The Lingels insist Karp is distinguishable, arguing that their agreement with the Olbins was not actually an assignment because an assignment effects a
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