10 Fla. L. Weekly Supp. 298a
Insurance — Personal injury protection — Standing — Assignment — Where medical provider submitted bills directly to and received payment directly from insurer but no formal assignment was introduced to trial court, insured had standing to sue — Attorney’s fees — Insured suffered no loss entitling him to damages, including attorney’s fees, where insured incurred no out-of-pocket expenses for medical provider’s services, and medical provider did not bill insured for balance of any reduced payment or seek interest due on late payment by insurer
JOHN BELL, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-6789, Division X. L.C. Case No. 01-3274-SC. March 3, 2003. William Levens, Judge. Amended Review of a final order of the County Ct. Hillsborough County. Counsel: Timothy A. Patrick, Tampa, for Appellant. Paula Walsh Rousselle, Tampa, for Appellee.
Appellant appealed after the trial court granted final summary judgment to Appellee Allstate Insurance in a PIP case. We affirm the decision of the trial court.
As a result of injuries he sustained in an automobile accident, Appellant Bell sought medical treatment. He was insured by Allstate Insurance, including coverage for personal injury protection (PIP) benefits. Bell eventually filed suit, during the pendency of which most issues were disposed by agreement of the parties. The only issue that remained at the time of summary judgment was that of some interest owed on a claim paid late by the insurer. In a deposition attached to Allstate Insurance’s motion for summary judgment, Bell testified that he did not know of any healthcare provider that had not been paid. Nonetheless, Appellant contends that the single late payment is a statutory violation on the part of the insurer, which entitled him to damages including attorney’s fees.
Appellee contends that there was an equitable assignment in favor of the healthcare provider, Barton Borders, LMT, and that, therefore, Appellant did not have standing to sue. The only evidence of the existence of an assignment was the health insurance claim form he submitted to the insurance company upon which the box asking whether an assignment was accepted was checked “yes.” Borders, with the consent of Appellant, submitted his bills directly to and received payment from, Allstate Insurance. Appellant incurred no out-of-pocket expenses for services rendered by Borders. Additionally, Borders, in an affidavit to the Court stated that he did not bill the insured for the balance of any reduced payment, nor did he seek the interest due on the late payment.
On the issue of assignment, this Court in its appellate capacity has repeatedly held that an insured retains standing to pursue a PIP claim even though he allowed the medical provider to submit its charges directly to and receive payment directly from the insurance company. See e.g. Ward v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly 365a (Fla. 13th Cir. Ct., April 1, 2001). Even when a claim form submitted by the healthcare provider indicates that an assignment has been accepted, as was the situation in the instant case, there must be a formal assignment to divest an insured of standing. See Lapensee v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 170 (Fla. 13th Cir. Ct., 2002), cert. denied No. 02-543 (Fla. 2d DCA Sept. 20, 2002). Here, Appellee produced no formal assignment to the trial court. Thus, it correctly determined that there was no assignment to divest Bell of standing to sue. However, the trial court was also correct when it determined that Bell suffered no damages. In entering summary judgment to Allstate Insurance, the trial court judge stated:
“The deposition of Mr. Bell makes it clear he suffered no loss. Absent a loss, I can’t see what relief could be granted…[N]obody was looking to the insured for payment.”
To recover damages in law, the plaintiff must demonstrate that he has sustained damages. Mostoufi v. Presto Food Stores, Inc., 618 So.2d 1372 (Fla. 2d DCA 1993) (without resulting damage, a wrong in itself is not compensable); Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977) (essential elements of any cause of action, whether derived from tort, contract, or imposed by statute, are the existence of a legal right in plaintiff, with corresponding duty in defendant, coupled with violation of that duty, which results in injury or damage to plaintiff.)
In short, while the legal right appears to be present, damages are notably absent. The trial court’s decision is AFFIRMED.
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