10 Fla. L. Weekly Supp. 756a
Insurance — Personal injury protection — Counsel — Disqualification — No abuse of discretion in denial of motions to disqualify attorney who previously represented insurer in PIP litigation involving section 627.736(10) and preferred providers where such litigation does not involve unique issues or strategies inasmuch as only real issue is interpretation of PIP statute, matters in which attorney formerly represented insurer were not substantially related to current cases, and there was no use by attorney of confidential information
ALLSTATE INSURANCE COMPANY, Petitioner, vs. CHARLES T. TUCKER, D.C., as Assignee of Shelba Dyes, Respondent(s). Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case Nos. 2002-32625-CICI, 2002-32690-CICI, 2002-32691-CICI, 2002-32706-CICI, 2002-32695-CICI, 2002-32702-CICI, 2002-32692-CICI, 2002-32699-CICI, 2002-32707-CICI, 2002-32704-CICI, 2002-32701-CICI, 2002-32693-CICI, 2002-32697-CICI, 2002-32708-CICI, 2002-32698-CICI, 2002-32705-CICI, 2002-32627-CICI, 2002-32709-CICI, 2002-32631-CICI, 2002-32703-CICI, 2002-32626-CICI, 2002-32700-CICI, 2002-32629-CICI, 2002-32630-CICI. Division 02. July 31, 2003. Robert K. Rouse, Jr., Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Virgil W. Wright, III. Jack Reiter.
[County court order at 10 Fla. L. Weekly Supp. 41b.]
ORDER DENYING PETITIONS FOR WRIT OF CERTIORARI
THIS MATTER came before the court on multiple Petitions for Writ of Certiorari, seeking review of orders of judges of the County Court denying motion of Allstate Indemnity Company (“Allstate”) to disqualify plaintiffs’ counsel. This court has determined that Allstate has not met its burden to show that the orders complained of depart from the essential requirements of law, and thus, the Petitions for Writ of Certiorari must be denied.
Allstate was sued in county court in separate actions by various plaintiffs represented by Kimberly Simoes and the law firm by which she is employed. In each action, it was alleged that Allstate wrongfully failed to pay personal injury protection benefits. Allstate requested Simoes and her firm to withdraw, and when those requests were refused, filed motion to disqualify in each case. These matters were heard during an extensive “consolidated hearing,” by the various county court judges before whom the motions were pending. Following this hearing, all of the motions to disqualify were denied. Allstate timely filed its Petitions for Writ of Certiorari, which were, by agreement, consolidated in this court.
It is undisputed that Simoes worked as staff counsel for Allstate for almost one year. During that employment, she had certain responsibilities with respect to litigation involving the applicability and analysis of §627.736(10), Florida Statutes. Upon leaving her employment with Allstate, Simoes joined her present firm, and became plaintiffs’ counsel in more than three dozen cases brought against Allstate, including those before this court, all involving claims implicating §627.736(10). It is not alleged by Allstate that Simoes was previously defense counsel for Allstate in any of these several dozen cases; it is not contended that Simoes ever reviewed or analyzed, or was in any way involved in defending Allstate against claims made against Allstate by the specific plaintiffs she is now representing.
On this appeal, this court is required to determine whether the petitioner, Allstate, has demonstrated that County Judges Hamrick, Marshall, and Smith departed from the essential requirements of law, when they each denied Allstate’s motions to disqualify Simoes and her firm. This court has concluded that Allstate has failed to meet its burden to so demonstrate.
The Rules of Professional Conduct of the Rules Regulating the Florida Bar provides that a lawyer who has formerly represented a client in a matter shall not thereafter: represent one adverse to the former client in the same or substantially related matter; or, use information relating to the former representation to the disadvantage of the former client. (The rules does not require disqualification based on an appearance of impropriety.) Allstate has not demonstrated that the various county judges departed froth the essential requirements of law when they determined, after a full hearing over two days, that Simoes did not violate this rule.
Allstate contended in the county courts, and has repeatedly asserted in argument to this court, that the “Beech Street/CCN” cases were and are “unique,” and that §627.736(10), Florida Statutes, is a “unique provision of the insurance code.” When asked on oral argument what made this litigation “unique,” Allstate’s counsel replied that “there is no precedent that outlines or guides the interpretation or analysis of this specific provision. . . .” of the statute. However, the county court judges heard evidence from which they could have concluded that litigation involving subsection (10) and “preferred providers” is merely a type of litigation, (and a rather common type, at that) involving breach of a contractual obligation to pay PIP benefits. The county court judges could have also concluded that the only real issue in these PIP cases was the interpretation of the statute, and that there is nothing unique about engaging in legal research and interpreting a statutory provision.1 These judges could have concluded, based on evidence presented, that this litigation did and does not involve unique issues or strategies.
In summary, the county courts could have properly determined, and did determine, that these matters were not substantially related matters, and that there was no use by Simoes of confidential information. Accordingly, no departure from the essential requirements of law has been demonstrated.
The Petitions for Writ of Certiorari are DENIED.
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1See Nationwide Mutual Fire Insurance Company v. Central Florida Physiatrists, P.A., 28 Fla. L. Weekly D1511, June 27, 2003 (Fla. 5th DCA Jun. 27, 2003).
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