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Capitol Indemnity Corporation v. Fleming12/10/2002
ting the following public policy reasons for prohibiting the assignment of legal malpractice claims:
"Assignability would encourage commercialization of claims, and would force attorneys to defend themselves against persons to whom no duty was ever owed. Moreover, the legal profession is debased by such commercialization, because it could (1) encourage unjustified lawsuits; (2) generate increased malpractice lawsuits, burdening the profession, the court system and (to the extent malpractice premiums would inevitably rise and be passed to the consumers) the public; and (3) promote champerty. Assignability could conceivably reduce the public's access to legal services, since the ever present threat of assignment by irresponsible clients (seeking quick financial gain) could cause lawyers to evaluate more selectively the desirability of representing a par ticular client. " 36 Cal. Rptr. 2d at 427, quoting Kracht v. Perrin, Gartland & Doyle, 268 Cal. Rptr . 637, 640 (Ct. App. 1990).
Similar public policy considerations underlie Arizona's rule prohibiting assignment of a legal malpractice claim. See Botma; cf. State Farm Fire & Cas. Co. v. Knapp, 107 Ariz. 184, 185, 484 P. 2d 180, 181 (1971) (declining to lift the lid "'on a andora's box crammed with both practical and legal problems'" by allowing assignment of personal injury and medical payments claims), quoting Travelers Indem. Co. v. Chumbley, 394 S. W.2d 418, 425 (Mo. Ct. App. 1965); Lingel v. Olbin, 198 Ar iz. 249, 8 P. 3d 1163 (App. 2000) (claim for wrongful death not assignable); Lo Piano v. Hunter, 173 Ar iz. 172, 840 P. 2d 1037 (App. 1992) (exploring public policy rationale for barring assignment of personal injury claims).
In Fireman's Fund, the California Court of Appeal further explained that, even though subrogation and assignment have some differences, "'each oper ates to transfer fr om one person to another a cause of action against a third, and the reasons of policy which make certain causes of action nonassignable would seem to operate as forcefully against the transfer of such causes of action by subrogation. '" 36 Cal. Rptr. 2d at 427, quoting Fifield Manor v. Finston, 354 P. 2d 1073, 1077 (Cal. 1960); see also Knapp, 107 Ar iz. at 185, 484 P. 2d at 181 (" ubrogation amounts to an assignment." ). We agree that the public policies that prohibit assignment of a legal malpractice claim in Arizona also prohibit equitable subrogation of a legal malpractice claim. For the same reasons as did the court in Fireman's Fund, we decline to gr ant Capitol a right to be subrogated to Bennett's legal malpractice claim against Fleming. See Kiley. Thus, the trial court correctly refused to permit Capitol to proceed against Fleming under the doctrine of equitable subrogation.
CONCLUSION
Having failed to establish the existence of a legal relationship and a concomitant duty owed it by Fleming, Capitol has no claim against Fleming and his firm. See Linder. T hus, we affirm the trial court's granting of Fleming's motion to dismiss the complaint.
M. JAN FLOREZ, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
JOSEPH W. HOWARD, Judge
Page 1 2 3 4 5 Arizona Personal Injury Attorneys
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