11 Fla. L. Weekly Supp. 273c
Insurance — Personal injury protection — Attorneys — Disqualification — Prior employment by insurer — Error to disqualify medical provider’s counsel without conducting an evidentiary hearing
CHARLES L. REINKE, D.C., P.A., As Assignee of David Seiler, Petitioner, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-5068AP-88A. UCN522003AP005068XXXXCV. February 9, 2004. David A. Demers, Judge. Counsel: Harley N. Kane, Kane & Kane, Boca Raton. Robert Adams, Tampa.
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by the Petitioner, Charles L. Reinke, D.C., P.A., as assignee of David Seiler (Reinke), seeking review of the Order On Defendant’s Motion to Disqualify Attorney Glenn E. Siegel, Esquire, and his Law Firm of Kane and Kane, and Motion for Protective Order (Order), entered by the trial court on October 20, 2003, nunc pro tunc, September 5, 2003, in which the trial court granted both motions. The Respondent, Progressive Express Insurance Company (Progressive), failed to file a response as required by this Court in its Order to Show Cause, entered December 19, 2003. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.
Initially, the Court finds that certiorari review is appropriate in reviewing the Order. See Akrey v. Kindred Nursing Centers East, L.L.C., 837 So.2d 1142, 1143 (Fla. 2d DCA 2003) (stating that “[d]isqualification of counsel is a matter uniquely suited for review by certiorari because it is an extraordinary remedy that should be used most sparingly”). The record shows that Reinke filed a Complaint against Progressive seek PIP benefits in May 2003. In response to the Complaint, Progressive filed, on or about July 18, 2003, its Motion to Disqualify Reinke’s attorney, Glenn E. Siegel, and Siegel’s law firm, Kane & Kane. Attached to the Motion was a copy of an Affidavit, dated August 1, 2001, of Joyce Richardson, a medical claims unit regional manager for Progressive. The Motion and Affidavit alleged that during Reinke’s employment with Progressive as a litigation specialist, a non-attorney position, from April 1999 through October 2000, Reinke had access to privileged information. Progressive generally alleged that the privileged information Siegel acquired during his employment with Progressive precluded his representation of a client against Progressive in a substantially related matter. There was no allegation that Siegel ever worked on the Reinke file, or that it even existed, during his employment with Progressive.
The Motion came before the trial court on September 5, 2003. The trial court heard argument of counsel, but no evidence was presented. The trial court then took the matter under advisement and, on October 20, 2003, entered its Order granting both the Motion to Disqualify and the Motion for Protective Order, without making any findings of fact. The trial court did not conduct an evidentiary hearing. Rather, it appears that the trial court granted the Motions relying on the unsworn testimony of Progressive’s attorney and a copy of the Affidavit of Joyce Richardson, which was signed well before the Reinke suit was filed.
Accordingly, the Court finds that the trial court departed from the essential requirements of law by reaching its conclusion without conducting the requisite evidentiary hearing. See Akrey, 837 So.2d at 1147 (Fla. 2d DCA 2003) (remanding the case for an evidentiary hearing where the trial court ordered disqualification based on insufficient affidavits). However, in remanding this matter, the Court notes that the identical issue has already been argued and decided throughout Florida county courts.1 See e.g. Fort Lauderdale Center for Chiropractic Care, Inc. v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 558c (Fla. Palm Beach Cty. Ct. July 3, 2002) (denying Progressive’s motion to disqualify Glenn Siegel and the law firm of Kane & Kane); Brown’s Chiropractic Center, Inc. v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 629c (Fla. Bay Cty. Ct. July 1, 2002) (same); Heartland Rehabilitation Services of North Florida, Inc. v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 198a (Fla. Clay Cty. Ct. January 6, 2003)(same).
Therefore, it is,
ORDERED AND ADJUDGED that the Petition is granted and the Order is quashed as set forth above.
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1The Court could not find any District appellate cases that reviewed these, or similar, county court decisions. However, at least one circuit court, sitting in its appellate capacity, has denied, per curiam, a petition for writ of certiorari filed by Progressive in response to the county court’s denial of its motion to disqualify Siegel and Kane & Kane under similar facts. See Progressive Express Insurance Company v. Fort Lauderdale Center for Chiropractic Care, Inc., 11 Fla. L. Weekly Supp. 106c (Fla. 15th Cir. App. Ct. Dec. 16, 2003).
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