10 Fla. L. Weekly Supp. 198a
Insurance — Personal injury protection — Counsel — Disqualification — Conflict of interest — Motions to disqualify attorney who worked for insurer in nonattorney claims litigation specialist position and is now employed by law firm representing medical provider in actions against insurer — Where there is no evidence that attorney has divulged confidential or privileged communications to law firm or any other third party, insurer has failed to demonstrate that any information to which attorney had access as a claims litigation specialist gives him an unfair advantage while working for law firm, attorney never worked on current cases while employed by insurer, and insurer’s extraordinary delays in filing motions for disqualification are deemed to constitute waiver, motions to disqualify are denied
HEARTLAND REHABILITATION SERVICES OF NORTH FLORIDA, INC. (Tina Deel), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2000-1203-SC D. HEARTLAND REHABILITATION SERVICES OF NORTH FLORIDA, INC. (Princess Freddie), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. Case No. 2001-1426-SC C. HEARTLAND REHABILITATION SERVICES OF NORTH FLORIDA, INC. (Katherine Glaze), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. Case No. 2000-1057-SC C. January 6, 2003. Marvin Gillman and Richard R. Townsend, Judges. Counsel: Brian Korte, for Plaintiff. John Wilke, for Defendant. James Rinaman.
ORDER DENYING MOTION TO DISQUALIFYKANE AND KANE
This cause came on to be heard before Judge Richard Townsend (Division “D” — County Court, Clay County, Florida) and Judge Marvin Gillman (Division “C” — County Court, Clay County, Florida) on December 4, 2002 for an en banc consolidated hearing on the Defendant’s Motions to Disqualify Plaintiff’s Counsel in each of the above-styled cases. In resolving these Motions the Court has carefully read, reviewed, and considered the following:
A. The PIP Complaint filed in each case.
B. The Amended Motion for Disqualification of Kane and Kane filed in each case.
C. The thorough, comprehensive, and professional oral arguments of John Wilke, Esquire, on behalf of the Defendant, Progressive Express Insurance Company, and Brian Korte, Esquire, on behalf of the Plaintiff, Heartland Rehabilitation Services of North Florida, Inc.
D. Memorandum of Law in support of Progressive’s Motion for Disqualification.
E. Memorandum of Law opposing Defendant’s Motion to Disqualify, together with tabbed cases.
F. Cases and Authority (set forth in Table of Authority) submitted by Plaintiff in opposition to Defendant’s Motion to Disqualify.
G. Opinions on same or similar issues from County Courts throughout the State of Florida:
1. Opinion of Judge Charles E. Burton, dated July 3, 2002, in Fort Lauderdale Center for Chiropractic Care, Inc. (Guisinger) v. Progressive Express Insurance Company (Case No. SS-00-15564-RD — County Court, Palm Beach County, Florida) [9 Fla. L. Weekly Supp. 558c].
2. Opinion of Judge John D. O’Brien, dated July 1, 2002, in Brown’s Chiropractic Center, Inc. (Draeger) v. Progressive Express Insurance Company (Case No. 01-2944-SP, County Court, Bay County, Florida) [9 Fla. L. Weekly Supp. 629c].
3. Opinion of Judge William White, dated September 10, 2002, in Herbert L. Babcock, D.C. v. Progressive Express Insurance Company (Case No. 2001-SC-2862, County Court, Escambia County, Florida).
4. Opinion of Judge Patricia Kinsey, dated October 31, 2002, in Herbert Babcock, D.C. v. Progressive Express Insurance Company (Case No. 2001-SC-3561, County Court, Escambia County, Florida).
H. Volumes I through VIII representing transcripts of hearings before the Honorable Charles E. Burton of Palm Beach, Florida, in hearings held on May 6, 2002, May 7, 2002, June 18, 2002, and June 27, 2002.
After thoroughly reviewing the transcripts of the testimony in the Palm Beach case, after having thoroughly reviewed the case law submitted by Counsel, and after having thoroughly reviewed the findings of fact and conclusions of law set forth in the written opinion of the Honorable Charles E. Burton in the Palm Beach case, the undersigned find the opinion of Judge Burton to be well written, well reasoned, and consistent with the facts presented at trial. Therefore, the findings of Judge Burton are adopted by this Court as its findings of fact and conclusions of law and incorporated by reference herein. Notwithstanding the incorporation by reference of Judge Burton’s findings of fact and conclusions of law, this Court will reiterate some ultimate findings of fact which this Court deems to be clearly established by the evidence:
1. Although Glenn Siegel was an attorney while employed by Progressive, he was not hired by Progressive to be an attorney nor was he perceived by Progressive to be an attorney.
2. As a claims litigation specialist, Glenn Siegel retained private counsel to represent Progressive, and his conversations with Counsel for Progressive are clearly privileged. There is no evidence that the substance of any of these privileged communications has been divulged to third parties.
3. There is no evidence that any confidential or privileged communication has ever been divulged by Mr. Glenn Siegel to the law firm of Kane and Kane or to any other third party.
4. The Defendant has failed to demonstrate any information which Glenn Siegel had access to as a claims litigation specialist which gives him any unfair advantage while working for Kane and Kane as an attorney.
5. Glenn Siegel never worked on any of the cases filed in Clay county while employed by Progressive.
6. Each case filed in Clay County was filed under the Small Claim’s Rules and sought damages that did not exceed $2,500.00. Rule 2.085, Florida Rules of Judicial Administration, establishes 95 days as a presumptively reasonable time period for the completion of cases of this nature. In the Tina Deel case, the Complaint was filed on October 13, 2000, and the first suggestion for disqualification was set forth in the Defendant’s Emergency Motion for Stay of Proceedings filed on November 8, 2001, over twelve (12) months later. In the case involving Princess Freddie, the Complaint was filed on October 29, 2001, and the first suggestion of disqualification was filed on July 10, 2002, over eight (8) months later. In the Katherine Glaze case, the Complaint was filed on September 18, 2000, and a suggestion of disqualification was not filed until November 8, 2001, over thirteen (13) months later. These extraordinary delays in filing a Motion for Disqualification are deemed by this Court to constitute a waiver. This Court specifically finds that these Motions were not filed because of any genuine concern over disclosure of confidential information, but were merely filed for the purpose of delay.
It is, therefore, upon due consideration
ORDERED:
The Motions to Disqualify Glenn Siegel, Esquire, and the law firm of Kane and Kane, as attorneys for the Plaintiff, are denied.
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