11 Fla. L. Weekly Supp. 615a
Insurance — Personal injury protection — Counsel — Disqualification — Conflict of interest — Prior representation of insurer — Substantially related matters — Where cases in which attorney represented insurer were based on different factual circumstances from present case, and insurer failed to demonstrate that information to which attorney had access when employed by insurer gave him unfair advantage in any cases attorney contemplated filing against insurer, insurer failed to prove that matters embraced in pending PIP suit are same or substantially related to matters in which attorney previously represented insurer — Denial of motions to disqualify counsel did not constitute departure from essential requirements of law — Petition for writ of certiorari denied
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. NONO JEAN-BAPTISTE, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-024 AP. L.T. No. 02-19956 SP 23. April 20, 2004. On Petition for Writ of Certiorari from the County Court for Miami-Dade County, Raphael Steinhardt, Linda S. Stein, Myriam Lehr and Mary J. Francis, JJ. Counsel: Stuart Yanofsky, United Automobile Insurance Company, Office of the General Counsel for United Automobile Insurance Company, for Petitioner. Marlene Reiss, Stephens, Lynn, Klein, Lacava, Hoffman & Puya, for Respondent.
(Before SIMONS, SMITH, and FRIEDMAN, JJ.)
(Friedman, J.) A review of the record indicates that the petitioner, United Automobile Insurance Company (United Auto) filed motions to disqualify respondent’s counsel, Alejandro Garcia, Esq., in approximately twenty-eight cases. A panel of four judges conducted a limited evidentiary hearing on these motions in the court below, and all of the motions for disqualification were denied. Petitions for writ of certiorari were filed with the appellate division of the circuit court. These petitions were consolidated for oral argument.
In this case, the respondent, as assignee of the insured, filed a complaint against United Auto seeking payment of personal injury protection benefits, (PIP), for health care services provided by the insured’s treating physician. United Auto filed a motion to disqualify respondent’s counsel, Garcia, on the ground of conflict of interest. Garcia had represented United Auto in the past and was now representing the medical provider suing United Auto. The court denied petitioner’s motion.
Reviewing this non-final order, we find that the trial court correctly applied the law regarding disqualification of an attorney. “[D]isqualification of a party’s counsel is an extraordinary remedy and should be resorted to sparingly.” Carnival Corp. v. Romero, 710So. 2d 690, 692 (Fla. 5th DCA 1998). To disqualify an attorney, a party must prove that: (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matters embraced in the pending suit are the same or substantially related to the matters in which the attorney previously represented the former client. See State Farm v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991).
In this case, there is no dispute that Garcia defended United Auto in PIP suits through his association with Dracos & Associates, thereby establishing an attorney client relationship with United Auto. The pertinent question before this court is whether Garcia represented United Auto in cases that are “substantially related” to his present cases where he now acts as counsel for the medical provider or claimant.
“Whether two legal matters are substantially related depends upon the specific facts of each particular situation or transaction.” The Florida Bar v. Dunagan, 731 So. 2d 1237, 1240 (Fla. 1999). A party seeking to disqualify counsel must demonstrate that the relationship between the subject matters, issues, and causes of action of both the present and previous representations are related. Contant v. Kawasaki Corp., U.S.A., Inc., 826 F. Supp. 427, 429 (M.D. Fla. 1993). Once a substantial relationship is shown counsel will be disqualified. See University of Miami v. Dansky, 622 So. 2d 613 (Fla. 1st DCA 1993).
At the hearing below, United Auto’s witnesses testified that Garcia, as a past managing attorney, had knowledge of defense strategies and the company’s current and future weaknesses and vulnerabilities. Garcia testified that his pending cases against United Auto were filed after he left the company and its law firm, and that each PIP case is based upon different factual circumstances, including different dates of accidents, different modes of treatment and different reasons for denying payment of the claim.
As stated above, whether two legal matters are substantially related depends upon the specific facts of each particular situation or transaction. A review of the facts indicates that Garcia’s past United Auto cases are based on different factual circumstances than in the instant case.
Additionally, a relevant factor is whether Garcia has information, not generally known, that would put United Auto at an unfair disadvantage. Garcia testified that he did not believe any confidential information he received from either United Auto or the law firm by which he was employed, gave him an unfair advantage in any of the cases he contemplated filing against the company. Furthermore, testimony provided by United Auto’s witnesses failed to demonstrate that the information Garcia had access to gave him an unfair advantage.
In view of the foregoing, we find that appellant failed to meet its burden of proving that the matters embraced in the pending suit are the same or substantially related to the matters in which Garcia previously represented his former client, United Auto. Further, “the findings of the trial court, as the trier of fact, come to this court clothed with a presumption of correctness. . .” Smiley v. Greyhound Line, Inc., 704 So. 2d 204 (Fla. 5th DCA 1998). Accordingly, appellant failed to demonstrate that the trial court’s ruling departed from the essential requirements of the law. Therefore, the petition for writ of certiorari review is hereby denied.
The respondent’s motion for attorney’s fees on the disqualification issue is hereby granted conditioned upon the respondent ultimately prevailing below. Respondent’s motion for appellate costs pursuant to Fla. R. App. P. 9.400 is granted and the amount shall be determined by the trial court on remand. (SIMONS and SMITH, JJ., concur.)
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