Rick and Joyce LINGEL, husband and wife, Plaintiffs/Appellants, v. Michael and Patricia OLBIN, husband and wife, Defendants/Appellees, 198 Ariz. 249

OPINION ESPINOSA, Chief Judge. ¶ 1 Plaintiffs/appellants Rick and Joyce Lingel appeal from the trial court’s order granting

summary judgment in favor of defendants/appellees Patricia and Michael Ol-bin 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 Lin-gel. 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 ¶ 2 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 Lin-gel.

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 Ol-bins 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 Lin-gels, 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. ¶ 3 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 Ol-bins 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. ¶4 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 Lingels argued that the rule prohibiting the assignment of personal injury claims does not apply to wrongful death claims and any resulting proceeds, that the contract claims for UIM benefits and life insurance benefits were fully assignable as well as severable, that the statute of frauds was inapplicable, and that a material question of fact existed as to whether Rick had violated any duty he owed the Olbins. In their cross-motion for partial

summary judgment, the Lingels contended there was no triable issue of fact about the enforceability of their agreement “to equally share all insurance benefits.” The trial court granted the Olbins’ motion, finding the common law rule prohibiting the assignment of personal injury claims and the proceeds therefrom applicable to actions for wrongful death and any resulting proceeds.

The court also found that genuine issues of material fact existed as to whether the entire agreement was void, whether the parties must return life insurance proceeds they had already exchanged, and whether the Lingels were required to return items from Erik’s estate. The trial court agreed that the contract claim for life insurance benefits was severable, but denied the remainder of the Lingels’ motion, stating: [T]he fact that the claim(

s) were paid from a liability policy of [the driver] and an underinsured policy covering [Erik] is irrelevant and has no effect on the non-assignability of the claims.... The sole issues for trial concerning insurance policy assignments are the assignments of life insurance policies and how those assignments were obtained. Pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., the trial court entered judgment in favor of the Olbins, and this appeal followed. Standard of Review ¶ 5 In ruling on a motion for

summary judgment, a trial court must decide whether a genuine issue of material fact exists and whether the moving party is entitled to judgment on the merits as a matter of law. Ariz. R. Civ. P. 56(c), 16 A.R.S.; Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). In reviewing the ruling, we “determine whether the trial court correctly applied the substantive law to [the] facts.” St. Luke’s Health Sys. v. State, 180 Ariz. 373, 376, 884 P.2d 259, 262 (App.1994). We are not bound by the trial court’s legal conclusions and review those questions de novo. Elia v. Pifer, 194 Ariz. 74, 977 P.2d 796 (App.1998).

Assignment of Wrongful Death Actions ¶ 6 It is well established in Arizona, and the Lingels acknowledge that, absent statutory authorization, an assignment of a cause of action for personal injuries against a third-party tortfeasor is void and unenforceable. Allstate Ins. Co. v. Drake, 118 Ariz. 301, 576 P.2d 489 (1978); State Farm Fire & Cos. Co. v. Knapp, 107 Ariz. 184, 484 P.2d 180 (1971); Lo Piano v. Hunter, 173 Ariz. 172, 840 P.2d 1037 (App.1992).

The Lingels contend, however, that the trial court improperly expanded existing law in concluding that “any agreement made by a personal injury or wrongful death plaintiff to pay another person part of the proceeds of a personal injury or wrongful death action is unenforceable in Arizona.” To determine whether proceeds of a wrongful death action are assignable, we first consider whether the underlying action itself may be assigned, examining the history and rationale of the rule prohibiting the assignment of claims for personal injury.

No Arizona court has directly addressed this question. ¶ 7 Historically, the assignment of tort actions for personal injuries has been prohibited because, among other reasons, such actions do not survive the death of the injured person in the absence of statute. See Karp v. Speizer, 132 Ariz. 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 plaintiffs 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. ¶ 8 First, in Arizona, whether a claim is statutory is not determinative of its assign-ability 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 plaintiffs 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 assign-ability and, for those claims that do survive, only permits the personal representative of the decedent to assert the claim. ¶9 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, 178 Cal.App.3d 1083, 224 Cal.Rptr. 373, 377 (1986), the California Court of Appeals held, based on California’s wrongful death statute which also limits those who can assert such claims: “[A] 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 I’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. ¶ 10 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 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, 64 Ill.App.3d 940, 21 Ill.Dec. 682, 381 N.E.2d 1367 (1978); see also Hackett v. Hammel, 185 Minn. 387, 241 N.W. 68, 69 (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. ¶ 11 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 assignments] 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. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821 (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 ¶ 12 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. ¶ 13 The Lingels insist Karp is distinguishable, arguing that their agreement with the Olbins was not actually an assignment because an assignment effects an absolute transfer of “all rights in the property assigned” and creates an enforceable interest in the assignee, citing case law from various jurisdictions and 6A C.J.S. Assignments § 105 (1975).

They thus maintain that because “the Olbins retained ownership and control of the wrongful death action,” the Lingels had no enforceable right in it. Although this may be true, it is not a meaningful distinction. As evidenced by their present action, the Lingels do seek to enforce a putative interest in the wrongful death proceeds, although not in the litigation itself. But under this argument, any assignment of a personal injury action could be labeled “an agreement to share proceeds” and thereby sidestep the rule prohibiting such transactions.

In Allstate our supreme court said: “It is clear that Allstate intended ... to create a legally enforceable interest in any claim that their insured might have against a third party tortfeasor. By whatever name, this is an assignment of the insured’s cause of action for personal injury against said third party tortfeasor.” 118 Ariz. at 304, 576 P.2d at 492. ¶ 14 The Lingels further argue that Karp is inapplicable because it did not involve a statutory claim and its holding is contrary to the supreme court case of State Farm Mutual Insurance Co. v. St. Joseph’s Hospital, 107 Ariz. 498, 489 P.2d 837 (1971).

As noted above, that a cause of action is statutory is not necessarily determinative of its assigna-bility. Moreover, the agreement at issue in St. Joseph’s Hospital provided that the injured party, in consideration of medical care provided by the hospital, authorized her attorney to pay the hospital what she owed it by deducting that amount from any payment she might receive as a result of any judgment or settlement.

The court found that the agreement was not an assignment of the injured party’s personal injury cause of action “in whole or in part,” but only allowed her attorney “to act as a collecting agent” for those who had provided her medical care. 107 Ariz. at 503, 489 P.2d at 842. Although we see little contradiction between St. Joseph’s Hospital and Karp, to the extent they may be inconsistent, we need not resolve that issue because the Lingels, unlike the plaintiffs in St.

Joseph’s Hospital, are asserting a direct interest in the proceeds of the Olbins’ claims. ¶ 15 Furthermore, the Lingels’ argument fails to adequately address the holdings in Brockman v. Metropolitan Life Insurance Co., 125 Ariz. 246, 609 P.2d 61 (1980), and Allstate, both decided after St. Joseph’s Hospital, and the latter of which the court relied on in Karp. In Brockman, the supreme court concluded that an agreement labeled by the insurer as a “compromise and settlement” was actually an assignment of proceeds of a personal injury claim and was therefore unenforceable.

The Lingels argue that this holding was “unreasoned” and should be applied only to prevent insurance companies from recouping benefits from personal injury plaintiffs. But the court did not so limit its holding, and, as noted in Karp, the public policy reasons and legal principles underlying the prohibition against assignments are not supported solely by insurance considerations. ¶ 16 Moreover, our supreme court had already explained its reasoning in Allstate.

There, the assignee had argued that its interest in proceeds was not from an assignment of a cause of action for personal injuries because that interest would not arise until the assignor’s personal injury claim had been reduced to a judgment or a settlement. The supreme court rejected that theory, stating simply, “We do not believe that this is a meaningful distinction.” 118 Ariz. at 304, 576 P.2d at 492; see Harvey v. Cleman, 65 Wash.2d 853, 400 P.2d 87, 90 (1965) (rejecting same argument and finding it “ ‘a distinction without a difference’”), quoting Gross-man v.

Schlosser, 39 Misc.2d 473, 240 N.Y.S.2d 854, 855 (1963), rev’d, 19 A.D.2d 893, 244 N.Y.S.2d 749 (1963); see also Southern Farm Bureau Cos. Ins. Co. v. Wright Oil Co., 248 Ark. 803, 454 S.W.2d 69, 72 (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, 88 N.C.App. 263, 362 S.E.2d 841, 843 (1987) (distinction between assigning personal injury claim and its proceeds “is a mere fiction”). ¶ 17 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, 112 Nev. 737, 917 P.2d 447 (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. ¶ 18 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 Lin-gels 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 in Wilson observed in invalidating an agreement to repay a loan from a close friend with a percentage of a wrongful death recovery, “It matters not that any particular contract is free from any taint or fraud, oppression, or corruption____ The law looks to the general tendency of such agreements, and it closes the door to temptation, by refusing them recognition in any courts of the country. It is enough that the contract belongs to a class which has a tendency contrary to public good.” 688 So.2d at 270, quoting Sampliner v.

Motion Picture Patents Co., 255 F. 242, 251-52 (2d Cir.1918), rev’d on other grounds, 254 U.S. 233, 41 S.Ct. 79, 65 L.Ed. 240 (1920). Accordingly, we conclude the trial court did not err in finding the wrongful death proceeds at issue here unassignable. Underinsured Motorist Benefits ¶ 19 Lastly, the Lingels challenge the trial court’s ruling that the UIM proceeds from the automobile insurance policy they had purchased were likewise subject to the rule of nonassignability, pointing out that contract claims are freely assignable.

Their argument, however, ignores the fact that these proceeds were paid as a result of Erik’s death and the tortfeasor’s inability to fully compensate the Olbins for their loss. That is, the UIM proceeds were used to pay the Olbins’ wrongful death claim, and as such, were not assignable.

See A.R.S. § 20-259.01(B), (G) (underinsured motorist benefits payable only upon “bodily injury or death”); Brockman (regardless of label, assignments of personal injury actions or the proceeds therefrom are not valid); Allstate (same); cf. § 20-259.01(K) (abrogating common law prohibition against assigning causes of action for personal injury only to the extent provided in § 20-259.01(1)). As the Olbins point out, almost all payments for personal injury or wrongful death are made by insurance companies; the nonassignability rule and its underlying public policy would be eviscerated by such an exception.

Conclusion ¶20 In view of Arizona’s judicial precedents and public policy underlying the prohibition against assignment of personal injury causes of action, as well as ease law from other jurisdictions on both sides of the issue, we conclude that the trial court properly determined that the parties’ agreement was void and unenforceable as to wrongful death proceeds, regardless of their source.

Although the Lingels present some salient reasons for dispensing with that prohibition, absent legislation to the contrary we are constrained to defer to our existing jurisprudence, as was the trial court. ¶ 21 The trial court’s judgment in favor of the Olbins is affirmed. CONCURRING: JOSEPH W. HOWARD, Presiding Judge. . It is not apparent from the record what became of Rick’s wrongful death action. . The record suggests that the Olbins did not file a complaint against the driver, and that the action filed against Pima County was resolved by a settlement. .

Rick Lingel obtained appointment as personal representative of Erik’s estate within a week of Erik’s death, apparently on the advice of the attorney and, allegedly, notwithstanding the estate's qualifying for

summary administration pursuant to A.R.S. §§ 14-3971 to 14-3974. . These rulings are not at issue in this appeal. . See Forgione v. Dennis Pirtle Agency Inc., 701 So.2d 557 (Fla.1997); Black v. First Interstate Bank of Fort Dodge, Iowa, 439 N.W.2d 647 (Iowa 1989); Larabee v. Potvin Lumber Co., 390 Mass. 636, 459 N.E.2d 93 (1983); Luker v. Arnold, 843 S.W.2d 108 (Tex.App.1992); McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121 (1950). .

Although the record does not contain the complaint the Olbins filed in their wrongful death action, the attorney representing them stated in an affidavit that "recoveries [made] on behalf of the Olbins have been for ... loss of consortium,” and that the complaint against Pima County alleged "a similar theory.” See Southern Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975) (claim for non-economic damages in a wrongful death action are in the nature of loss of consortium, affection, companionship, personal anguish, sorrow, suffering, and pain and shock). .

Although Rick Lingel could have come within § 12-612 as the personal representative of Erik's estate had he filed his wrongful death action on behalf of the Olbins, he did not do so, but rather sued on his own behalf "individually and as surviving parent” of Erik, and for his own alleged damages. . "Maintenance” is defined as assisting another in litigation without a personal interest in its outcome. Karp. "Champerty” exists if there is an agreement that the person providing litigation assistance will share in the proceeds of the litigation. Id.

For a more detailed explanation, see the special concurrence of Judge Brammer, infra, ¶ 31. . In a related argument, the Lingels contend the trial court’s ruling was overly broad and would vitiate any contingent fee agreements between personal injury plaintiffs and their attorneys or agreements for payment of medical bills between such plaintiffs and their care providers. Although a similar concern about contingent fee agreements was examined and rejected in Har-leysville, no such agreements or issues are before us, nor were they before the trial court; therefore, we do not address those hypothetical cases.

See also Gartin v. St. Joseph’s Hosp. and Med. Ctr., 156 Ariz. 32, 749 P.2d 941 (App.1988) (wrongful death proceeds not subject to health care provider liens).