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). 










                                                                                        Appeal No. 03-5011AP-88A








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





            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  On June 6, 2000, Hoggard rescinded his October 1999 assignment, which was acknowledged by Felker Clinic on July 7, 2000.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