11 Fla. L. Weekly Supp. 140a
Insurance — Personal injury protection — Attorney’s fees awarded for successful defense against motions for disqualification of law firm representing plaintiffs in consolidated cases where it is implicit in denial of motions for disqualification that law firm did nothing wrong in hiring insurer’s former employee, and time spent contesting the motion was caused by insurer incorrectly asserting conflict that did not exist — No merit to argument that time spent on disqualification issue inured solely to benefit of law firm and not to clients — Fact that law firm may have interest in continued representation, because if disqualified it would not be entitled to any fees under contingency fee arrangements, does not mean that its continued representation does not confer benefit on clients where likelihood of success in cases was less than or even at best, and law firm was one of few firms that consistently prosecuted cases with PPO and Beech Street issues
FORT LAUDERDALE CENTER FOR CHIROPRACTIC CARE, INC., a/a/o Patrick Guisinger, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 2000CC15564-RD. December 19, 2003. STEVEN ISAACS, D.C., a/a/o Pearlnita Mitchell, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. Case No. 2001CC011979-RD. Charles E. Burton, Judge. Counsel: Harley Kane, Kane & Kane, Boca Raton. Douglas Stein, Miami.
ORDER ON ENTITLEMENT TO FEES AND COSTS
THESE CASES came before the Court for a hearing on December 18, 2003 based upon the Defendant’s Motion to Disqualify the law firm of Kane & Kane. The Plaintiffs are represented by Harley Kane, Esquire and the Defendants are represented by Douglas Stein, Esquire.
The Court previously entered an Order denying the Defendant’s Motion to Disqualify. Many of those consolidated cases have now been resolved and the Plaintiffs, through the law firm of Kane & Kane, have filed Motions to Tax Attorneys’ Fees and Costs. While the Court has held hearings and entered fee Orders in some of those cases, the Court had reserved jurisdiction to award further fees and/or costs for the additional time spent on the disqualification hearing. At the time of the evidentiary hearing, both parties stipulated to the consolidation of cases because they each involved all issues relevant to the grounds asserted by Progressive to disqualify the Kane & Kane law firm. The Court on its own motion found that the issue of entitlement and the taxing of fees and costs should also be consolidated for hearing as it relates to the time spent litigating the disqualification motion as well as the costs incurred.
The Defendant argues that legal work done and time spent on disqualification inured solely to the attorney’s benefit and were not rendered in procuring a judgment pursuant to F.S. 627.428. The Plaintiffs point out that such a finding would interfere with a litigants right to utilize chosen counsel. At the time of the disqualification hearing, the Plaintiffs estimated that there were 700 cases affected throughout the State of Florida. Initially, the motion to disqualify involved not only the firm of Kane & Kane, but involved the firms of Watson & Lentner and Marks & Fleischer, P.A. Progressive initially alleged that the three firms were in effect one firm and sought to disqualify all of them because of Glenn Siegel’s employment with Kane & Kane.1 It was well known that these firms were aggressively prosecuting PIP cases in the state. Courts have held that the motion to disqualify should not be used as a trial tactic to delay proceedings, deprive the opposing party of counsel of his choice, or as a tool to frustrate the opponent. Eggers v. Eggers, 776 So.2d 1096 (Fla. 5th DCA 2001). Moreover, where the motion to disqualify comes not from a client, but from an opposing party, the motion should be reviewed with caution. In re Ellis, 822 S.W.2d 602 (Tenn. Ct. App. 1991). Finally, at the time the Beech Street and PPO issues were first raised more than two and a half years ago, there were no appellate cases which had ruled on the issue and Kane & Kane were one of the few firms who consistently prosecuted cases with these issues.2
The Defendant relies on Spinelli v. Rodes-Roper-Love Ins. Agency, Inc., 613 So.2d 504 (Fla. 5th DCA 1993). In Spinelli, the trial court awarded fees to counsel who was subsequently disqualified. Included in the fee award was time spent litigating the disqualification. In refusing to award this time, the court held that the law firm, having caused the conflict by hiring a disqualified lawyer, was not entitled to charge the client for contesting the resulting disqualification. (emphasis added). Here, the Court denied disqualification. Implicit in that Order is the finding that Kane & Kane did nothing wrong in hiring Siegel, and that the time caused contesting the motion was caused by Progressive incorrectly asserting a conflict that did not exist.
Since Kane & Kane have contingent fee agreements in these cases, there can be no doubt that they benefit from the denial of disqualification because if they were disqualified, they would not be entitled to any fees in these cases. However, just because the law firm may have an interest does not mean that their continued representation does not confer a benefit on their client, or that another lawyer could have achieved the same result. Without a conflict being present, the client has the right to have the lawyer of choice with a degree of blind trust that is paralleled in very few other economic relationships. The Florida Bar v. Ward, 599 So.2d 650 (Fla. 1992).
Finally, Progressive has consistently litigated the PPO issue raising as many as 14 affirmative defenses in some cases. In various fee hearings between the parties, the Court has found that these PPO cases when initially filed, had a likelihood of success was less than or even at best. Thus, the Court cannot find that Kane & Kane’s representation of the various Plaintiffs did not inure to the benefit of the client. Accordingly, it is,
ORDERED AND ADJUDGED that Kane & Kane is entitled to recover reasonable attorneys’ fees and costs in litigating the disqualification issue, which shall be determined at an evidentiary hearing.
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1Progressive subsequently backed off from this position as it related to the other firms.
2At various fee hearings with Progressive, attorney Steven Ainbinder has testified that initially Kane & Kane was one of the only firms pursuing these PPO cases and that many other plaintiffs lawyers would simply drop the cases when confronted with Beech Street.
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