This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1856

Abdelkarim Abulaban,

Appellant,

vs.

Bruce J. Bartie,

Respondent.

Filed March 30, 1999

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 9711880

Allen H. Aaron, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN 55343; and

Robert H. Liebman, 7841 Wayzata Blvd., Suite 215, St. Louis Park, MN 55426 (for appellant)

Thomas H. Crouch, Cecilie Morris Loidolt, Jenneane L. Jansen, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Abdelkarim Abulaban challenges the district court's order granting summary judgment to respondent Bruce J. Bartie, M.D. Abulaban contends he and Bartie entered into an oral contract for $3,000 to $4,000 for spinal surgery. After the surgery was performed, Abulaban claims Bartie breached this contract by charging $12,444 to Abulaban's insurance carrier for the surgery. Abulaban claims he suffered damages because as a result of this overcharge, he used up his no-fault insurance benefits, and was forced to use money he received in a settlement agreement to pay other medical expenses related to the automobile accident. The district court granted summary judgment in favor of Bartie. On appeal, Abulaban argues the district court erred in determining he failed to establish he suffered damages as a result of the alleged breach of contract. We affirm.

D E C I S I O N

When examining an appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Abulaban argues he sustained damages from the breach of an implied contract. As a result of an alleged overcharge, Abulaban claims he had to pay $5,754 for medical expenses related to the automobile accident from his $80,000 settlement with the tortfeasor. But allowing Abulaban to recover for benefits already paid out by his insurance company would be a double recovery. See LeBeau v. John Deere Ins. Co., 574 N.W.2d 83, 85 (Minn. App. 1998), review denied (Minn. Mar. 26, 1998) (stating that to avoid double recovery, claimant must first exhaust the amount of the settlement allocated for medical expenses before he is entitled to recover additional expenses from no-fault insurer). The record reflects: (1) Abulaban's no-fault insurer completely covered the surgery; (2) the $80,000 settlement was negotiated after the surgery; and (3) medical expenses were part of the settlement, which released the tortfeasors from liability for all known or unknown injuries resulting from the accident. We conclude the district court properly determined Abulaban failed to show he was damaged by a breach of contract.

Abulaban also argues that he should have a chance to prove his remaining theories regarding fraud. Because Abulaban cannot show he suffered damages, we conclude these claims were correctly dismissed by the district court.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.