County
Civil Court: INSURANCE – insurer unable to show that trial
court erred in denying insurer’s motion for summary judgment and motion for
directed verdict – every possible inference must be viewed in favor of the
non-moving party – insurer unable to demonstrate that there was a complete
absence of evidence to support trial court’s award of damages, entered upon
jury verdict – Final Judgment affirmed. State Farm Mutual Automobile Ins. Co. v. Hoggard,
Appeal No. 03-5011AP-88A (Fla. 6th Cir. App. Ct. July 27, 2005).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
FOR PINELLAS COUNTY, FLORIDA
APPELLATE
DIVISION
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Appellant,
Appeal No. 03-5011AP-88A
UCN522003AP005011XXXXCV
vs.
DONALD HOGGARD,
Appellee.
___________________________________________/
Appeal from Final Judgment
Pinellas County Court
Judge Myra Scott McNary
Betsy E. Gallagher, Esquire
David B. Kampf, Esquire
Attorneys for Appellant
George A. Vaka, Esquire
Gregory J. Perenich, Esquire
Attorneys for Appellee
ORDER
AND OPINION
THIS CAUSE came before the Court on appeal,
filed by State Farm Mutual Automobile Insurance Company (State Farm), from the
Final Judgment, entered May 6, 2003, in favor of Donald Hoggard (Hoggard). Upon review of the briefs, the record and
being otherwise fully advised, the Court affirms the trial court’s ruling as
set forth below.
The
record shows that Hoggard was involved in an automobile accident in August
1999, and sustained injuries. In October
1999, Hoggard began chiropractic treatment with Dr. Hess, of Felker
Clinic. Pursuant to an assignment of
benefits, executed October 25, 1999, bills for treatment were submitted to and
paid by State Farm. Following a routine
IME, the examining physician, Dr. Hochman, concluded that chiropractic care was
no longer needed and State Farm notified Hoggard that no more benefits would be
paid for treatment rendered after February 1, 2000.
Hoggard
continued to receive chiropractic treatment from Dr. Hess through mid-April
2000. On June 6, 2000, Hoggard rescinded
his October 1999 assignment, which was acknowledged by Felker Clinic on July 7,
2000. Hoggard then sued State Farm for
unpaid Personal Injury Protection (PIP) benefits totaling $ 2,927.00. State Farm responded by filing a motion for
summary judgment asserting that Hoggard lacked standing to maintain his cause
of action as Hoggard had assigned his rights and benefits to Felker
Clinic. The trial court denied this
motion and the case went to trial. Pursuant
to a jury verdict, the trial court entered its Final Judgment in the amount of
$ 2,927.00, plus interest, and reserved jurisdiction for the award of attorney’s
fees and costs.
Before
this Court, State Farm argues that the trial court erred in not granting its
motion for summary judgment for lack of standing, and subsequent motion for
directed verdict, as Hoggard’s rescission of his assignment was not valid. State Farm also argues that the trial court
erred in not granting its motion for a directed verdict on the issue of damages
since Hoggard failed to present competent substantial evidence as to the amount
of damages he sustained. Hoggard
responds that the trial court correctly denied the motion for summary judgment
and motions for directed verdict. This
Court agrees.
A motion
for directed verdict can be granted only where there is no view of the evidence
that could support a verdict for the nonmoving party. See Sims v. Cristinzio, 898
So.2d 1004, 1005 (Fla. 2d DCA 2005). “If
there are conflicts in the evidence or different reasonable inferences that may
be drawn from the evidence, the issue is factual and must be submitted to the
jury.” Id. The appellate court uses the same standard as the
trial court in reviewing a motion for directed verdict. See id.
Likewise,
summary judgment is proper only if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at
Ormond Beach, 760 So.2d 126, 130 (Fla. 2000). In reviewing the record de novo, the appellate
court must view every possible inference in favor of the nonmoving party. See id.; see also Emergency
One, Inc. v. Keffer, 652 So.2d 1233, 1235 (Fla. 1st DCA 1995).
In
reviewing the first issue presented by State Farm, the Court finds that summary
judgment would have been improper as the record shows that there were disputed
material facts as to whether Hoggard had rescinded his assignment to Felker
Clinic. As explained by the Fifth
District Court of Appeal in Hartford Insurance Company of the Midwest v.
O’Connor, 855 So.2d 189, 191 (Fla. 5th DCA 2003), an assignment is a
contract which can be revoked by mutual agreement of the parties. Once there is an unqualified assignment, the
assignor has no right to make a claim on the contract unless authorized to do
so by the assignee. See id.; see
also Livingston v. State Farm Mutual Insurance Company, 774 So.2d
716, 718 (Fla. 2d DCA 2000). The Court
finds that the “Rescission of PIP Insurance Agreement,” in which Felker Clinic
acknowledged that “Hoggard has rescinded any and all assignments of Personal
Injury Protection benefits which he may have signed pertaining to the
automobile accident of August 24, 1999,” is sufficient evidence that Felker
Clinic authorized Hoggard to pursue his PIP claim for unpaid chiropractic
treatment. Therefore, the trial court
also properly denied State Farm’s motion for directed verdict on this matter.
In
reviewing the second issue, the Court finds that the award of damages in the principle
amount of $2,927.00, entered upon a jury verdict, must be sustained as there is
not a complete absence of evidence to support its findings. See Wells Fargo Guard Services Inc.
of Florida v. Lehman, 799 So.2d 252, 254 (Fla. 3d DCA 2001). Hoggard admitted into evidence Plaintiff’s
Exhibit # 1, with no objection from State Farm, which enumerated chiropractic services
and related charges totaling $ 2,971.64, for treatment received after February
1, 2000. Hoggard’s undisputed testimony
was that he paid Felker Clinic this amount.
Accordingly, the Court can not reevaluate the evidence and substitute
its judgment for that of the jury. See
Berges v. Infinity Insurance Company, 896 So.2d 665, 676 (Fla. 2004).
Therefore, it is,
ORDERED AND ADJUDGED that the Final
Judgment is affirmed. It is further,
ORDERED AND ADJUDGED that the Appellant’s
Motion for Attorney’s Fees is denied and the Appellee’s Motion for Attorney’s
Fees is granted. The trial court shall
determine the amount of reasonable appellate attorney’s fees to be awarded to
Hoggard.
DONE AND ORDERED in Chambers, at Clearwater,
Pinellas County, Florida this ______ of July 2005.
________________________
JOHN A. SCHAEFER
Circuit
Judge, Appellate Division
Copies furnished to:
Judge Myra Scott McNary
Betsy E.
Gallagher, Esquire
201 North Franklin
Street, Suite 2550
Tampa, FL 33602
Daniel Shapiro,
Esquire
Bridgeport Center,
Suite 750
5201 West Kennedy
Blvd.
Tampa, FL 33609
David Kampf,
Esquire
701 West Kennedy
Blvd.
Tampa, FL 33602
Gregory J.
Perenich, Esquire
1875 Belcher Road
North, Suite 201
Clearwater,
FL 33765
George A. Vaka,
Esquire
One Harbour Place
777 South Harbour
Island Blvd., Suite 300
Tampa, FL 33602