11 Fla. L. Weekly Supp. 606a
Insurance — Personal injury protection — Counsel — Disqualification — Conflict of interest — Prior representation of insurer — Certiorari challenge to order disqualifying attorney who was previously employed as in-house and outside counsel to insurer from representation of medical provider in PIP suit challenging insurer’s use of computer program to reduce medical bills — Waiver — Trial court’s finding that there was no waiver of right to disqualify counsel is supported by record where subpoena that provider relies on as proof that insurer knew of attorney’s affiliation with law firm representing provider fifteen months before insurer moved for disqualification was issued in another case in another county and cannot be used to prove insurer’s knowledge of attorney’s involvement in instant case — Trial court’s finding that present case is substantially related to matters in which attorney participated during his employment by insurer is properly supported by record where attorney was instrumental in implementing and developing defense strategies as to same computer program provider seeks to attack, complaint alleges that medical bills were reduced on basis of program alone, and insurer only seeks to disqualify attorney from those cases in which computer program is challenged — No error in denial of motion for relief from disqualification order on ground that new evidence established that insurer committed fraud on court in testimony regarding when it first learned that attorney was former in-house counsel where alleged new evidence was unsworn comments made in deposition filed in a different case in another county, and comments do not contradict testimony as to when insurer first learned of attorney’s involvement with computer program as in-house counsel — Petition for writ of certiorari denied
ADVANCED ORTHOPEDIC INSTITUTE, as assignee of JOYCE CRANE, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 48-2002-CA-4968-O. Writ No. 02-23. April 2, 2004. Petition for Writ of Certiorari. Counsel: Jeffrey W. Albert, Winter Park, for Petitioner. Elizabeth K. Russo, Miami; Charmain Williams; and Lewis F. Collins, Jr., Tampa, for Respondent.
(Before STRICKLAND, KIRKWOOD, and KOMANSKI, JJ.)
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Petitioner Advanced Orthopedic Institute timely filed this petition seeking certiorari review of the following two non-final orders rendered by the county court: (1) an “Order Disqualifying Counsel,” and (2) an “Order Denying Plaintiff’s Motion for Relief From Order, for Order Denying Defendant’s Motion to Disqualify Plaintiff’s Counsel and for Order Striking Defendant’s Pleadings, or in the Alternative Motion for Order Granting Rehearing on All Issues Concerning Disqualification.” This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2).
On July 23, 1997, Joyce Crane sustained personal injuries as the result of a motor vehicle accident. Ms. Crane subsequently obtained treatment from Advanced Orthopedic Institute (“Petitioner”). Petitioner, who accepted an assignment of benefits from Ms. Crane, submitted the bills for payment to Ms. Crane’s automobile insurance carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). State Farm determined that the amounts of the bills exceeded the customary amounts charged in Petitioner’s geographical region and paid only a portion of the bills. On June 10, 1998, Petitioner filed suit against State Farm for failure to pay benefits within thirty days pursuant to section 627.736, Florida Statutes. Petitioner also challenged State Farm’s use of a computer program, the Medicode/Ingenix system, to reduce the payments of Petitioner’s medical bills.1
On May 31, 2001, almost three years later, State Farm filed a motion to disqualify Petitioner’s counsel, Anthony Britt, and his law firm, McKeever, Albert & Barth, from representing Petitioner due to a conflict of interest pursuant to Rules 4-1.9 and 4-1.10(a) of the Rules Regulating the Florida Bar.2 Prior to representing Petitioner, Mr. Britt was employed by State Farm as in-house counsel from 1991 to 1996 and outside counsel from 1996 to 1998. State Farm argued that because of Mr. Britt’s previous employment with State Farm, he was “in possession of information not generally known concerning State Farm’s claim handling practice and procedures, the selection and usage of companies to determine the reasonableness and necessity of medical bills and matters pertaining to the handling of PIP claims similar, if not identical, to the claim in this case.” (Pet’r App. 4, ¶ 9.)3 State Farm thus argued that Mr. Britt’s subsequent association with Petitioner’s firm “in a substantially related matter adverse to the interests of State Farm, requires [Petitioner’s] counsel to be disqualified from further representation of the [Petitioner] in this matter.” (Pet’r App. 4, ¶ 7.) Petitioner, however, argued that Mr. Britt should not be disqualified because State Farm knew of Mr. Britt’s affiliation with the McKeever firm at least fifteen months before filing the motion to disqualify. Thus, Petitioner argued that State Farm waived its right to disqualify Mr. Britt and his firm.
On April 19, 2002, the county court entered an order disqualifying Anthony Britt and the McKeever firm from representing Petitioner in the matter against State Farm. The court held that the “legal confidences which Anthony Britt was privy to and participated in are substantially related to the PIP case before this Court involving the challenge to payments based upon the use of the Medicode/Ingenix system.” (Pet’r App. 1 at 3.) The court also held that State Farm did not waive its right to disqualify counsel for conflict of interest.
Petitioner subsequently sought relief from the April 19 order. Petitioner argued that at the hearing on the motion to disqualify, held on January 14, 2002, State Farm conducted an evidentiary hearing without providing notice to Petitioner. At the hearing, State Farm called Dale Gobel, Esquire, its prior counsel, as a witness. Petitioner argued that Mr. Gobel testified he did not know that Mr. Britt was employed as in-house counsel with State Farm until May 2001. Petitioner claimed that after that hearing, it discovered new evidence that the testimony of Mr. Gobel, which the court relied upon in granting the motion to disqualify, was misleading and dishonest. Specifically, Petitioner argued that according to a transcript of a deposition taken in another case, Mr. Gobel was aware of Mr. Britt’s employment with State Farm as early as October 2000 and, therefore, his testimony at the January hearing constituted fraud.
On May 16, 2002, the county court entered an order denying Petitioner’s motion for relief from the April 19 order. The court rejected Petitioner’s theory of fraud and held that Gobel was simply mistaken as to the date in which he learned the information regarding Mr. Britt. Petitioner now seeks certiorari review of the county court’s two non-final orders and requests that they be quashed and remanded with instructions to strike State Farm’s pleadings for its misrepresentations to the court and to allow Mr. Britt and the McKeever firm to continue to represent Petitioner.
Orders disqualifying counsel are generally reviewable by certiorari. Carnival Corp. v. Romero, 710 So.2d 690, 692 (Fla. 5th DCA 1998). The disqualification of a party’s chosen counsel is an extraordinary remedy that should be resorted to only sparingly, and certiorari will lie only to quash an order improperly disqualifying counsel. Id.; Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA 1991).
It is well established that the essential prerequisite to granting a petition for writ of certiorari is action by the lower court which constitutes a departure from the essential requirements of law that will cause material injury to the petitioner throughout the proceedings and for which there is no adequate remedy on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987). In other words, Petitioner must establish that the county judge departed from the essential requirements of law and that the resulting harm cannot be remedied on appeal. See Zarco Supply Co. v. Bonnell, 658 So.2d 151, 153 (Fla. 1st DCA 1995).
Petitioner argues that the county court committed reversible error by granting State Farm’s motion to disqualify. Specifically, Petitioner argues that counsel should not have been disqualified because State Farm failed to raise the issue in a timely manner and, therefore, waived its right to disqualify counsel. Petitioner claims that a motion to disqualify should be made with reasonable promptness after the party discovers the facts which lead to the motion. According to Petitioner, State Farm discovered such facts (that Mr. Britt was associated with the McKeever firm) approximately fifteen months before it filed its motion to disqualify. To support its argument, Petitioner relies on a subpoena that Mr. Britt signed and issued to State Farm, dated March 15, 2000. Petitioner argues the subpoena establishes that State Farm had knowledge, at that time, that Mr. Britt was affiliated with the firm representing Petitioner.
State Farm, on the other hand, argues it did not have knowledge of Mr. Britt’s affiliation at that time because Mr. Britt’s name was not included in any of the pleadings that were filed in the instant case. The subpoena Petitioner relies upon was not issued in the instant case; rather, it was issued in a different case pending in another county. “[T]he critical point in time from which to make an assessment of whether [State Farm] unduly delayed filing the motion and, thus, waived [its] right to object to [Mr. Britt’s] continued representation of [Petitioner], arose when [State Farm] was put on notice that [Mr. Britt] was working for [the McKeever firm] on this particular case.” Lackow v. Walter E. Heller & Co. Southeast, Inc., 466 So. 2d 1120, 1122 n.2 (Fla. 3d DCA 1985). In other words, any assessment as to whether State Farm waived its right to disqualify counsel must be based only upon the actions taken in this particular case. Thus, Petitioner cannot rely on a subpoena issued in another case to prove in this case that State Farm knew Mr. Britt was affiliated with the McKeever firm as early as March 15, 2000. Therefore, Petitioner has failed to establish that State Farm’s motion was untimely and that it waived its right to disqualify counsel. Accordingly, the county court’s finding that there was no waiver in this case is properly supported by the record.
The record also supports the county court’s finding that the legal confidences which Mr. Britt was privy to and participated in were substantially related to the case before it. Petitioner, however, argues that the case “is not the same case or even a substantially related matter.” (Pet. at 10.) Petitioner contends “[t]here is no relation to Medicode/Ingenix.” (Pet. at 10.) Petitioner states the issue in this case is whether the charges for the services rendered by Petitioner were usual and customary, and that according to the deposition testimony of Carla Gee, Medicode/Ingenix’s corporate representative, the Medicode/Ingenix system does not define what is usual and customary. Petitioner claims that Ms. Gee’s deposition testimony “clearly shows that any knowledge that Mr. Britt gained from his association with [State Farm] is unrelated to the actual reductions taken of [Petitioner]’s bill.” (Pet. at 12.) Thus, Petitioner argues that Mr. Britt’s involvement in implementing the system while employed by State Farm has no bearing on the reductions actually taken with regards to Ms. Crane’s medical bills.
State Farm, on the other hand, argues that it clearly established that Mr. Britt’s previous employment does in fact involve a substantially related matter and, therefore, met its burden of proving entitlement to disqualification. This Court agrees. State Farm claims that Mr. Britt was “instrumental in implementing and developing defense strategies as to the very program his present client seeks to attack.” (Resp. at 22.) State Farm argues, “Any decision short of disqualification will put State Farm at a significant disadvantage in that its former attorney (who both advised and consulted on the use and potential challenges to the Medicode/Ingenex system) will now be allowed to challenge the very system he helped to implement and defend.” (Resp’t App. 3 at 10.) Therefore, Petitioner’s argument that there is no relation to Medicode/Ingenix fails.
Furthermore, at the January 14, 2002, disqualification hearing, Lewis Collins, Esquire, stated that State Farm was not seeking to disqualify Mr. Britt just because he was now representing a party in an action against State Farm, but because Mr. Britt and his firm were challenging how State Farm determined reasonableness and customary using the Medicode/Ingenix system. Mr. Lewis made it clear that State Farm was not seeking to disqualify Mr. Britt from every case against it involving PIP issues, but every case where he is challenging the Medicode/Ingenix system, which he helped to implement. More importantly, Petitioner itself specifically alleged in its complaint that State Farm “has used a computer program based on average charges of physicians and withheld, reduced or denied benefits on the basis of the results of the application of this program alone.”(Pet’r App. 3, ¶ 18) (emphasis added). Thus, the county court’s finding that this case is substantially related to the matters in which Mr. Britt participated during his prior employment with, and representation of, State Farm is properly supported by the record.
Petitioner also argues that the county court committed reversible error by denying Petitioner’s motion for relief from the April 19 order disqualifying counsel. Specifically, Petitioner argues that it should have been granted relief from the order because new evidence established that State Farm committed fraud upon the court. Petitioner states that at the disqualification hearing, Mr. Gobel testified that he first learned of Mr. Britt’s connection as in-house counsel for State Farm in May 2001. However, Petitioner claims that it was presented with the deposition transcript of Margaret Cawley, State Farm’s Claim Service Support Supervisor, dated October 10, 2000, that showed that Mr. Gobel’s subsequent hearing testimony “was blatantly false.” (Pet. at 16; Reply App. 5.) Specifically, Petitioner states that during the deposition, in response to Mr. Britt’s direct examination of Ms. Cawley, Mr. Gobel made objections and statements regarding Mr. Britt’s prior relationship with State Farm and his intimate knowledge of the Medicode/Ingenix system. Petitioner argues that based on that deposition testimony, Mr. Gobel knew of Mr. Britt’s involvement with State Farm as early as October 2000, and therefore knew his testimony was false when he testified at the disqualification hearing.
However, the deposition transcript that Petitioner relies on, like the subpoena it relied on above, was filed in a different case pending in another county. Furthermore, State Farm argues that the statements and objections Mr. Gobel made during Ms. Cawley’s deposition were “unsworn remarks.” (Resp. at 17.) State Farm also argues that Mr. Gobel’s unsworn comments did not contradict his sworn testimony from the January hearing. State Farm maintains that Mr. Gobel did not deny knowing that Mr. Britt was outside counsel prior to May 2001, and that he explained it was not until May 2001 that he learned Mr. Britt had been employed as in-house counsel and to what extent he was involved with the Medicode/Ingenix system. The county court held that while it was apparent from Ms. Cawley’s deposition that Mr. Gobel possessed such information on October 10, 2000, he was not untruthful to the court, but was, at best, mistaken as to the date he learned the information.
More importantly, the court specifically stated, “Even with the new information, as provided by counsel in the October 10, 2000 deposition, the Court would still reach the conclusion that disqualification of [Petitioner]’s counsel is the appropriate remedy in this case and that the theory of ‘waiver’ is inapplicable to State Farm Mutual Automobile Insurance Company.” (Pet’r App. 2 at 2.) At a hearing on Petitioner’s motion for rehearing, the court stated, “I see Mr. Britt’s involvement as different than other lawyers who used to work at law firms who represented State Farm . . . either as in-house law firms or as outside counsel . . . ,” because “Mr. Britt had significantly more involvement on any of these issues than any of the normal disqualification hearings or motions that we hear.” (Resp’t App. 6 at 16.) The court also stated it “wants to be clear that whether he learned it in October of 2000 or May of 2001 would make no difference to the Court in finding that there’s a conflict of interest or apparent conflict of interest sufficient to disqualify Mr. Britt’s firm from representing [Petitioner] against State Farm on the issues where there is very sensitive reduction issues that are going to be done.” (Resp’t App. 6 at 16-17.) Thus, it is clear that the county court viewed the motions before it with extreme caution. It is also clear that the county court’s findings are properly supported by the record and, therefore, do not depart from the essential requirements of law.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Advanced Orthopedic Institute’s Petition for Writ of Certiorari, filed August 8, 2002, is DENIED.
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1The computer program was developed by a company named Ingenix, formerly known as Medicode, and is utilized by purchasers of the software to ascertain the reasonableness of medical bills in a particular geographical area.
2Rule 4-1.9 provides that a lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents; or (b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit or when the information has become generally known.
Rule 4-1.10(a) provides for imputed disqualification of all lawyers in a firm and states that none of the lawyers shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rule 4-1.9.
3Citations to Petitioner’s Appendix will be referred to as “Pet’r App.,” citations to Petitioner’s Petition for Writ of Certiorari will be referred to as “Pet.,” citations to Respondent’s Response to Petition for Writ of Certiorari will be referred to as “Resp.,” citations to Respondent’s Appendix will be referred to as “Resp’t App.,” and citations to Petitioner’s Reply Brief Appendix will be referred to as “Reply App.”
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