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Lingel v. Olbin8/29/2000
that rights of action for torts causing injuries which are strictly personal do not survive, and may not be assigned prior to the verdict or judgment." 2 Ariz. App. at 540, 410 P.2d at 497.
Of course, Harleysville was concerned with the state of the law after the enactment of the 1955 survival statute, so the court could hardly ground its decision on the pre-1955 cases applying different law. The court found authority on all sides of the issue and, after citing Arizona cases as support for the pre-1955 rule, turned to two 1965 cases from Missouri and Washington for support in fashioning the post-1955 rule it announced: "We feel and therefore hold, that the better reasoned rule is that 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." Id. at 541, 410 P.2d at 498.
I find this statement far broader than was necessary to decide the case because the only issue the court recognized it must decide was "whether . . . 14-477 A.R.S., allows an injured party to assign a portion of his recovery for personal injury to reimburse his insurance carrier for payments made to him under the provisions of the medical-pay portion of his insurance policy." Id. at 539, 410 P.2d at 496. One may surmise that the court, concerned that the insured would not otherwise receive the benefit of his contractual bargain with the insurer, found this result the better way to protect him from an overreaching insurer. Harleysville's progeny, as the majority recognizes, has addressed similar attempts by insurers to deprive their insureds of the benefits their premium dollars purchased, uniformly protecting the insured against the insurer.
The court in Travelers Indemnity Co. v. Chumbley, 394 S.W.2d 418 (Mo. App. 1965), relying on a long line of Missouri authority holding personal injury causes of action nonassignable, found invalid an insurer's assertion that, by settling his personal injury action with the tortfeasor without regard to the insurer's payment of medical expenses, the insured had assigned a portion of the proceeds to the insurer. The court found that the settlement had not affected the insurer's subrogation rights. Harleysville's reliance on this authority to support its conclusion that the better rule was one of nonassignability of personal injury claims, despite their survivability, appears ill-founded because the court in Chumbley did not discuss the survivability of the cause of action. Indeed, of all the cases Chumbley cited in a footnote to support its decision, only Beechwood v. Joplin-Pittsburg Railway Co., 158 S.W. 868 (Mo. App. 1913), despite the existence of a statute appearing to provide for the survival of personal injury causes of action, held that a bankruptcy trustee could not substitute for and prosecute a bankrupt's personal injury claim.
After first finding no legal distinction between an assignment of a personal injury cause of action and an assignment of the proceeds flowing from such an action, the court in Harvey v. Cleman, 400 P.2d 87 (Wash. 1965), held invalid a claim assignment to a personal representative that included elements of damage precluded by statute from surviving, despite the statutory survival of other damage elements. Relying on Chumbley, as well as Harvey, which in turn referred to the Restatement of Contracts ยง 547 (1932), the court in Harleysville determined that, although historically the justification for the nonassignability of a "personal injury claim been based mostly on the non-survivability of the cause of action, we believe that the non-assignability rule standing alone has much support in public policy." 2 Ariz. App. at 542, 410 P.2d at 499
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