specially concurring.
¶ 22 Although I concur with the majority that there is no principled distinction between the assignment of personal injury and wrongful death causes of action and the assignment of proceeds that may result from prosecuting those actions, I write separately to express my confusion about, and ultimate disagreement with, the underlying rationale prohibiting the assignment of proceeds from either type of action.
¶23 In 1955, the Arizona legislature permitted the survival of personal injury claims under former A.R.S. § 14-477.10 The genesis of the rule prohibiting the assignment of a personal injury cause of action appears to be dicta offered over thirty years ago in Har-leysville. The court began its analysis by citing three pre-1955 decisions11 as precedent and observed that, prior to the 1955 statutory enactment, “Arizona courts adhered to the generally accepted rule 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.
¶ 24 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 Washington12 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.
¶ 25 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.
¶ 26 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 non*258assignable, 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., 173 Mo.App. 371, 158 S.W. 868 (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.
¶ 27 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, 65 Wash.2d 853, 400 P.2d 87 (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.13 Relying on Chumbley, as well as Harvey, which in turn referred to the Restatement of Contracts § 547 (1932), the court in Harleysville determined that, although historically the justification for the nonassignability of a “personal injury claim [has] 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. The “nonassignability rule” to which Harleysville referred and on which it relied was found in § 547 of the Restatement of Contracts and read:
When an Assignment of a Claim or Bargain to Assign It Is Illegal.
(1) An assignment of a claim against a third person or a bargain to assign such a claim is illegal and ineffective if the claim is for
(d) damages for an injury the gist of which is to the person rather than to property, unless the claim has been reduced to judgment.14
¶ 28 In order to find that an injured person could not assign a portion of any recovery prior to judgment, the Harleysville court was required to first support its conclusion that personal injury causes of action were nonassignable. Having reached that conclusion, however, it is even more interesting to note the court’s final pronouncement that “nothing herein should be construed to prevent an assignment of all or part of a claim for personal injuries which has been reduced to judgment or otherwise liquidated.” 2 Ariz. App. at 543, 410 P.2d at 500. Of course, the judgment or settlement terminates the claim, so nothing would remain to be assigned except the proceeds of the judgment or settlement. This leads me to conclude that the court in Harleysville, this state’s seminal case on the assignability of personal injury causes of action, not only need not have concluded that such actions were not assignable, but needed only to narrowly construe the rights of the insured and his insurer, pursuant to § 14-477 and their insurance contract, to that portion of the insured’s personal injury recovery necessary to repay the insurer. When the court extended its decision far beyond what was necessary to decide the narrow issue before it, in an area of the law *259that is not only confusing but peppered with conflicting decisions from several jurisdictions,15 our jurisprudence was started on a rocky and difficult path.
¶29 That is demonstrated in Allstate, where our supreme court held an automobile insurance policy provision requiring the insured to repay the insurer any medical expenses it had paid from the proceeds of any recovery the insured obtained “unenforceable as an assignment of the insured’s cause of action against the third party tortfeasor.” 118 Ariz. at 304, 576 P.2d at 492. The court noted that, although the provision did not expressly attempt to assign the cause of action to the insurer, that was the practical result. Accordingly, the court said, “Whatever the form, whatever the label, whatever the theory, the result is the same. Such an arrangement ... is the legal equivalent of an assignment and therefore unenforceable.” Id. The court noted that this conclusion was consistent with its earlier determination in State Farm Fire & Casualty Co. v. Knapp, 107 Ariz. 184, 484 P.2d 180 (1971), that an automobile insurance policy provision subro-gating the insurer to the rights of the insured for any medical payments made on the insured’s behalf “amount[ed] to an assignment and ... a claim for personal injuries is not assignable.” Allstate, 118 Ariz. at 303, 576 P.2d at 491.
¶ 30 The essence of the holdings in Knapp and Allstate has continued with the supreme court’s decision in Brockman and with Division One’s decision in Karp. Both continue the prohibition against the assignment of personal injury recovery proceeds. All, however, are grounded in the principles first announced in Harleysville.
¶31 Although the court in Harleysville referred to many valid reasons why some courts and commentators have concluded that assigning personal injury causes of action should be prohibited, it never used or relied upon the traditional common law words “maintenance,” “champerty,” or “bar-ratry” in its analysis. These concepts may be simply summarized as follows:
The most common kinds of impermissible maintenance involve financial assistance. Champerty is simply a specialized form of maintenance in which the person assisting another’s litigation becomes an interested investor because of a promise by the assisted person to repay the investor with a share of any recovery. Barratry is adjudicative cheerleading — urging others, frequently, to quarrels and suits. All were thought to lead to a corruption of justice because of their tendency to encourage unwanted and unmeritorious litigation, inflated damages, suppressed evidence, and suborned perjury. Those, of course, are the same arguments that have traditionally been made against other aids to impecunious litigants, such as free legal services and the contingent fee.
Charles W. Wolfram, Modem Legal Ethics § 8.13, at 489-90 (1986) (footnotes omitted). Wolfram continued: “Ancient court procedures and criminal laws directed at perjury, official corruption, and obstructing justice were seriously defective[, b]ut modern penal codes, and modern procedure and evidence law, contain sufficiently articulated devices to pursue those goals.” Id. at 490. I am not so sanguine as he that better protection is now afforded by the complex tangle of current laws and advanced litigation techniques and, indeed, Karp acknowledged the same problems.
¶32 Accordingly, I have no quarrel with preventing trafficking in personal injury or wrongful death causes of action, as I am persuaded that such could reasonably lead to the evils Wolfram described and Karp and the majority acknowledged, even though the concepts in today’s legal structure may be a bit archaic. Therefore, I do not presently argue for eliminating this prohibition. What troubles me is the second part of the equation, that which Harleysville articulated, and which Brockman, Allstate, Knapp, and Karp have perpetuated. That is the prohibition against prejudgment agreements to share, for any reason, proceeds resulting from the successful prosecution of personal injury and *260wrongful death actions. If this concept was ever valid,- it appears to have little, if any, currency and should be revisited and abandoned by our supreme court.
¶ 33 A paternalistic undercurrent runs through many of the cases espousing and repeating the non-assignability rule, as their results protect people in difficult circumstances 16 by restricting their ability to assign all or a portion of a contingent asset, an unliquidated claim for damages. I understand and agree with the policy reasons these courts have relied on to prevent trafficking in unliquidated claims by strangers to those claims. Additionally, it is doubtless true that people enduring extreme personal tragedy, as were the Olbins here, whether because of the death of a loved one or because of a calamity causing them injury, are perhaps less able to manage their property and affairs than those not encumbered by similar suffering. This inability would, however, seem to me to apply equally to that person’s capacity to manage all or any part of his or her assets, not just the proceeds of litigation resulting from the injury or death. Is it any less difficult to handle commercial transactions concerning one’s job, home, automobile, family heirloom, beloved pet, securities, stamp collection, or any other possession or asset than it is the proceeds of a personal injury or wrongful death claim so as to require governmental protection precluding alienation of any portion of the latter? I think not, and suggest we must recognize that competent people who are otherwise free to borrow against or give away everything they own or to sell them assets at market value or for pennies on the dollar should also be able to freely sell, give away, or borrow against proceeds that may result from the successful prosecution of a personal injury or wrongful death action unencumbered by the outdated rules we follow today.
¶34 Because I see the potential for mischief in the absolute assignment of these causes of action, I would draw a line, admittedly fine, between that type of assignment and the assignment of their proceeds. Acquiring an interest in proceeds should not give the acquiring party any interest in, or ability to direct, the litigation that may or may not result in those proceeds. Of course, clever counsel, heavy-handed “investors,” and insurers may well craft documents that would bend or even cross this line. These concerns, however, are little, if any, different from current commercial arrangements between members of the general public and those lenders, investors, insurers, or “advis-ors” who now attempt to separate them from their assets by any means legal. These latter matters are addressed by the courts if legal bounds are exceeded and so, I trust, in similar circumstances, would the former.
¶ 35 For the same reason I find no principled distinction between precluding the assignment of personal injury or wrongful death causes of action, I cannot differentiate between selling or borrowing against one’s tangible assets and sharing the proceeds of those actions, whether by sale, encumbrance, or gift. Despite finding little reason to support the extant rule precluding such sharing, particularly because evolving jurisprudence has seriously and significantly eroded Har-leysville’s already fragile foundation, I nevertheless feel compelled to follow that rule until it is modified, and therefore concur with the majority in the result.
. Renumbered as § 14-3110 by 1973 Ariz. Sess. Laws, ch. 75, § 17. See supra ¶7.
. Although all three cases the court in Harleys-ville cited support the pre-1955 nonassignability of nonsurviving claims rule, only Employers Casualty Co. v. Moore, 60 Ariz. 544, 142 P.2d 414 (1943), can be said to have tangentially dealt with the assignment of a personal injury claim. There, the plaintiff's former counsel sued the tortfeasor’s insurer to obtain a fee after the insurer settled with the plaintiff without the knowledge of counsel, conduct counsel claimed was fraudulent. In reversing the trial court’s fee award to counsel, the court said that the contingency fee agreement by which the client had "assigned” to counsel, as a fee, a percentage of any recovery obtained could not support counsel’s claim against the insurer because the client's claim could not survive and could not therefore be assigned.
The other two cases cited in Harleysville discussed the assignability of commercial claims based upon their survivability, and both found the claims were assignable. See United Verde Extension Mining Co. v. Ralston, 37 Ariz. 554, 296 P. 262 (1931); Deatsch v. Fairfield, 27 Ariz. 387, 233 P. 887 (1925). Moore cited both Ral-ston and Deatsch with approval as supporting the assignability-based-on-survivability rule, although neither case involved a personal injury claim, and neither found the claim at bench nonassignable.
. Travelers Indem. Co. v. Chumbley, 394 S.W.2d 418 (Mo.App.1965); Harvey v. Cleman, 65 Wash.2d 853, 400 P.2d 87 (1965).
. The statute on which the court relied, Wash. Rev.Code § 4.20.046, was amended in 1993 to permit the survival of the damage elements that did not survive at the time Harvey was decided. See Tait v. Wahl, 97 Wash.App. 765, 987 P.2d 127 (1999).
. Curiously, § 547 was omitted from the Restatement (Second) of Contracts (1981), without any apparent indication why. The provisions in the Restatement (Second) pertaining to assignment apply only to contractual rights. See § 316. The only apparent reference to the assignment of personal injury claims is in comment c to § 317 (historic rule that cause of action cannot be assigned remains applicable to "claims for damages for personal injury”). The Reporter's Note contains no citations, to cases or otherwise, supporting comment c.
. See, e.g., Graffagnino v. Fibreboard Corp., 781 F.2d 1111 (5th Cir.1986); In re Musser, 24 B.R. 913 (W.D.Va.1982); In re Thompson's Estate, 36 Misc.2d 638, 231 N.Y.S.2d 718 (1962); In re Behm’s Estate, 117 Utah 151, 213 P.2d 657 (1950).
. The cases almost uniformly also protect those in unequal bargaining positions, specifically insureds against their insurers.