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ATTORNEYS FOR APPELLANT James F. McCarthy, III Jerome C. Bishop Katz, Teller, Brant & Hild Cincinnati, Ohio Michael B. Langford A. Jack Finklea Scopelitis, Garvin, Light & Hanson Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Laura S. Reed Riley Bennett & Egloff, LLP Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE IND. STATE CHIROPRACTIC ASSOC. John P. Lowry Boehm, Kurtz & Lowry Cincinnati, Ohio Mark K. Sullivan Tabbert, Hahn, Earnest & Weddle, LLP Indianapolis, Indiana INSURANCE INSTITUTE OF IND., INC. PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA John C. Trimble Richard K. Shoultz Lewis Wagner Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0503-CV-00096 MIDTOWN CHIROPRACTIC, Appellant (Plaintiff below), v. ILLINOIS FARMERS INSURANCE COMPANY, Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49D06-0302-PL-336 The Honorable Thomas J. Carroll, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0312-CV-1047 _________________________________ May 23, 2006 Dickson, Justice.

In this appeal, a chiropractic clinic seeks to assert an assignment signed by its patient to

collect from a liability insurance company that paid the patient's personal injury tort claim notwithstanding the clinic's notice to the company of the assignment. The trial court granted summary judgment to the defendant, Illinois Farmers Insurance Company, and the Court of Appeals reversed, Midtown Chiropractic v. Illinois Farmers Ins., 812 N.E.2d 851 (Ind. Ct. App. 2004). We granted transfer and affirm the trial court's grant of summary judgment to Illinois Farmers.

The plaintiff-appellant, Midtown Chiropractic, seeks to collect directly from the defendant-appellee, Illinois Farmers Insurance Company, charges of $3,010 for chiropractic care for a patient injured in a collision with an automobile driven by a person insured by Illinois Farmers. Midtown had obtained its patient's signature on an "Assignment of Right to Receive Benefits and/or Proceeds of Settlement or Judgment," sent notice of the assignment to Illinois Farmers, and asked to be included "as a named co-endorser on any disbursement check." Appellant's App'x. at 13-14. But Illinois Farmers later settled the patient's liability claim for $9,000 and paid the full amount directly to the patient. Midtown filed an action against Illinois Farmers on the assignment, seeking damages of $3,010. Illinois Farmers responded with a motion for summary judgment asserting that the assignment was not valid and, alternatively, that as a liability insurer, it was not subject to a direct action by a tort claimant or the claimant's assignee. The trial court granted the motion without specifying any findings of fact or conclusions of law.

Appealing from the trial court's grant of summary judgment for Illinois Farmers, Midtown asserts that the assignment it obtained from its patient is valid and may be enforced directly against Illinois Farmers. We find the determinative issue to be whether this particular assignment constitutes an assignment of a personal injury tort cause of action, which is prohibited under Indiana common law.

Whether the grant of summary judgment to the defendant was proper is determined using the same standard as that used by the trial court, which provides that "summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind. 2003); see also Ind. Trial Rule 56(C). All facts and reasonable inferences from them are construed in favor of the non-moving party. Worman Enter., Inc. v. Boone County Solid

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Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind. 2004). There are no factual disputes in this case related to whether a valid assignment was made. Its resolution is a matter of law.

Midtown contends that the assignment of proceeds from the personal injury claim is enforceable as an equitable assignment. It argues that the assignment it received from its patient is not of the claim itself, but of any proceeds from the claim. Midtown urges that the property interest transferred to it under the assignment is "an immediate and existing right to share in the proceeds of any settlement or the recovery of any judgment to the extent of its fees for the chiropractic treatment," Appellant's Br. at 6, 9-10, and it cites cases from other jurisdictions where assignments of similar interests have been upheld.

Midtown asserts that Indiana courts have long recognized similar assignments of choses in action, as well as contingent interests and expectancies that rest only in mere possibility. According to Midtown, therefore, the Court should recognize the equitable assignment in this case as an enforceable one, given the "long and distinguished history in Indiana" in support of the doctrine of equitable assignment. Id. at 8. Midtown also asserts that the assignment in this case does not infringe upon public policy interests that have led courts in the past to prohibit assignments of personal injury claims.

The focus of the assignment in this case, future proceeds from a possible settlement between the assignor and the defendant, describes a chose in action, which is a "proprietary right in personam, such as a debt owed by another person . . . or a claim for damages in tort . . . [or a] right to bring an action to recover a debt, money, or thing." BLACK'S LAW DICTIONARY 258 (8th ed. 2004). Midtown maintains that it has become well-established under Indiana law that such an interest is generally assignable. We discussed the law controlling the assignment of a chose in action in Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 339-40 (Ind. 1991), where we observed that hardly any chose in action was assignable under old common law because of concerns about champerty and maintenance. 1 However, the assignment of such interests has gained gradual acChamperty and maintenance refer to arrangements where a party acquires an interest in something merely by participating in a lawsuit in which the party otherwise has no independent status to join. Reichhart v. City of New Haven, 674 N.E.2d 27, 32 n.3 (Ind. Ct. App. 1996). A person, otherwise a stranger to the parties and litigation, giving aid to a litigant and receiving a stake in the dispute constitutes
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ceptance over time, beginning with those interests based in contract, and later for torts against personal property. Id. at 340. "Today, the non-assignability of a chose in action has become so restricted that it is now the exception to the rule of free assignment." Id. (citing Essex v. Ryan, 446 N.E.2d 368, 374 (Ind. Ct. App. 1983)). Thus a contract-based chose in action is considered assignable unless it is purely personal in nature, and one based in tort is assignable if it arises out of injuries to personal property. Picadilly, 582 N.E.2d at 340.

But it remains well-settled in Indiana law that a cause of action in tort to recover for personal injuries is not assignable. Id.; see also INS Investigations Bureau, Inc. v. Lee, 709 N.E.2d 736, 741 (Ind. Ct. App. 1999); Allstate Ins. Co. v. Axsom, 696 N.E.2d 482, 485 (Ind. Ct. App. 1998); Imel v. Travelers Indem. Co., 152 Ind. App. 75, 78-79, 281 N.E.2d 919, 920-21 (1972). In Picadilly, we declared that the assignment of a legal malpractice claim was invalid as against public policy, choosing not to "allow clients to sell off their claims for pursuit by others." Picadilly, 582 N.E.2d at 345.

Midtown argues that it is not seeking to enforce an assignment of a personal injury claim, but only the assignment of the proceeds from such a claim. The executed Assignment of Benefits states that the patient "irrevocably assigns [his] right to collect or receive payment in any form as and for compensation for any injuries for which [he] receive[s] treatment from Midtown Chiropractic." Appellant's App'x. at 38. The agreement also purports to direct payment to "Midtown Chiropractic directly the amount outstanding before making any payments" to the assignor. Id.

Acknowledging the general rule that assignments of personal injury claims are invalid, some jurisdictions have drawn the distinction that Midtown seeks here between assignments of personal injury actions and assignments of the proceeds recovered in such actions, finding the latter to be enforceable. Maryland's highest court has stated that it sees "no danger of champerty or maintenance, nor any other public policy reason to preclude the assignment of expected personal injury claim benefits to secure hospital or medical expenses already incurred." Hernandez
champerty. Id. Where the stranger intermeddles in the litigation by promoting, encouraging, or assisting it but does not receive any part of the subject matter of the litigation in return, maintenance is said to have occurred. Id.

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v. Suburban Hosp. Ass'n, Inc., 319 Md. 226, 235, 572 A.2d 144, 148 (1990). According to the Maryland court, not only does the enforcement of assignments of proceeds from personal injury claims to providers of healthcare services avoid infringement on certain public policy concerns, but it promotes good policy. The cost of health care may be considerable . . . and patients injured by the actions of others are often not in a position to pay for that care at the time they need and receive it. . . . Thus, if the assignment of those funds is not permitted, the health care provider may be forced to pursue its claim expeditiously against the patient, a likely effect of which will be to involve the patient in double litigation and put at risk the patient's personal assets. Enforcement of an assignment can avoid this problem; if given some assurance of payment from the proceeds received from the tort action, the hospital may forego immediate collection efforts and thus allow the patient a measure of financial stability. Id. The Supreme Court of Nevada has echoed the sentiment that public policy obstacles underlying the exclusion of assignments of personal injury claims are not present in the assignment of proceeds from an action by saying, "[W]hen a tort action is assigned, the assignor loses the right to pursue the action. However, when the proceeds of an action are assigned, the assignor retains control of the action, and the assignee cannot pursue the action independently." Achrem v. Expressway Plaza Ltd. P'ship, 112 Nev. 737, 740, 917 P.2d 447, 448 (1996) (citations omitted); see also Charlotte-Mecklenburg Hosp. Auth. v. First of Georgia Ins. Co., 340 N.C. 88, 91, 455 S.E.2d 655, 657 (1995); In re Musser, 24 B.R. 913, 920-21 (W.D.Va. 1982); Block v. California Physicians' Serv., 53 Cal.Rptr. 51, 53-55 (Cal. Ct. App. 1966); Grossman v. Schlosser, 244 N.Y.S.2d 749, 750-51 (N.Y. App. Div. 1963).

Other courts have disagreed, however, about the distinction drawn between assignments of claims and assignments of proceeds, finding it "at best . . . a distinction without a difference." Karp v. Speizer, 132 Ariz. 599, 601, 647 P.2d 1197, 1199 (Ariz. Ct. App. 1982) (quoting Harvey v. Cleman, 65 Wash.2d 853, 858, 400 P.2d 87, 90 (1965)). These courts have concluded that assignments of rights to proceeds from personal injury claims are unenforceable. See, e.g., Quality Chiropractic, PC v. Farmers Ins. Co. of Arizona, 2002-NMCA-80, 36, 132 N.M. 518, 529, 51 P.3d 1172, 1183 (N.M. Ct. App. 2002); Town & Country Bank of Springfield v. Country Mut. Ins. Co., 121 Ill.App.3d 216, 218-19, 459 N.E.2d 639, 640-41 (1984); Karp, 132 Ariz. at 602,

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647 P.2d at 1200. 2 And the recognition of assignments of proceeds as something distinct from assignments of personal injury claims, and as being enforceable where assignments of claims are not, has been explained to require an abrogation of the common law rule prohibiting assignments of personal injury claims, something more wisely left for the legislature. Quality Chiropractic, 2002-NMCA-80 at 32-33, 132 N.M. at 528, 51 P.3d at 1182.

The Indiana legislature has chosen to provide a statutory lien to benefit some, but not all, providers of medical services to patients who may receive tort claim recoveries. Such a lien is available to hospitals and ambulance operators on proceeds recovered by a patient in litigation related to the incident accounting for the need for hospital or ambulance services. Indiana Code

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