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Lingel v. Olbin8/29/2000
ejecting same argument and finding it "'a distinction without a difference'"), quoting Grossman v. Schlosser, 240 N.Y.S.2d 854, 855 (Sup. Ct. 1963), rev'd, 244 N.Y.S.2d 749 (App. Div. 1963); see also Southern Farm Bureau Cas. Ins. Co. v. Wright Oil Co., 454 S.W.2d 69, 72 (Ark. 1970) ("no sound basis" for distinguishing between personal injury cause of action and its proceeds for purposes of assignability); North Carolina Baptist Hosp., Inc. v. Mitchell, 362 S.E.2d 841, 843 (N.C. App. 1987) (distinction between assigning personal injury claim and its proceeds "is a mere fiction").
Finally, the Lingels maintain that the public policy reasons behind the prohibition of assignments of personal injury actions are inapplicable to assignments of proceeds, citing Achrem v. Expressway Plaza Limited Partnership, 917 P.2d 447 (Nev. 1996). In that case, the Nevada Supreme Court concluded that the personal injury plaintiffs' assignment of a portion of their settlement proceeds did not violate the public policy against assigning tort actions because they had retained control of their lawsuit without interference from the assignee. Although an assignment of proceeds may lessen the danger that an assignee will interfere with and control a personal injury action, as the courts in both Karp and Harleysville noted, Nevada law on this subject is not persuasive; Nevada, unlike Arizona, permits the assignment of such actions. See 1979 Nev. Stat., ch. 305, § 2 at 458-59 (deleting statutory prohibition against assignments of tort claims from Nev. Rev. Stat. § 41.100(3)). More importantly, reasoning similar to that in Achrem was rejected by our supreme court in Allstate and by Division One of this court in Karp.
At issue in Karp was the Speizers' agreement to pay a portion of an anticipated accident recovery for a debt they owed the Karps. The court found "the public policy reasons and legal principles underlying the general rule prohibiting the assignment of a claim for personal injuries . . . to be equally applicable to [an assignment of its proceeds]." Karp, 132 Ariz. at 602, 647 P.2d at 1200; see also North Carolina Baptist Hosp. (assignment of proceeds of personal injury action invalid as contrary to public policy). We are not persuaded by the Lingels' argument that public policy concerns about maintenance and champerty do not apply when "the stranger does not acquire any right to control the litigation." Indeed, they appear to be implicated here. The record reflects that, only three days after the death of their only child, the Olbins entered into the agreement with the Lingels to share equally in Erik's estate and any proceeds from any wrongful death claims, at a time when both parties were suffering severe emotional distress. The Olbins allegedly did so under the guidance of an attorney who was a friend of the Lingels. The Olbins were clearly the only parties with rights to any proceeds from Erik's estate or death. Nonetheless, Rick Lingel filed a wrongful death complaint in his own name, albeit with the Olbins' allegedly uninformed consent, despite the fact that he was a legal "stranger" to the litigation, as well as to the Olbins and Erik. As the Lingels themselves point out, "maintenance" is defined as "'intermeddling by a non-party in a suit which in no way belongs to such person, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it,'" quoting Black's Law Dictionary 119 (5th ed. 1983). In so noting, we do not attribute or imply any improper motives on the part of the Lingels. Moreover, even had Rick not attempted to involve himself in the claims and litigation relating to Erik's death, the prohibition and underlying public policy are prophylactic in nature. As the court i
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