14 Fla. L. Weekly Supp. 1067a
Insurance — Personal injury protection — Attorneys — Disqualification — Prior employment — Motion to disqualify counsel for medical providers is granted where, in prior employment by insurer, providers’ attorney co-supervised attorney who represented insurer in another case that involved the same automobile accident, insured and medical providers as instant case
BRUCE M. GELCH, D.C., P.A., a Florida Corporation, d/b/a MODERN CHIROPRACTIC CLINIC, also d/b/a MODERN THERAPEUTICS, a/a/o Mauricio Olmos, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 07-003323 COCE 54. August 27, 2007. Lisa Trachman, Judge. Counsel: Nicole Malick, Nicole Malick, P.A., Fort Lauderdale, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISQUALIFY NICOLE MALICK, ESQ., AND NICOLE MALICK, P.A.
THIS CAUSE, having come to be heard on July 24, 2007 on Defendant, United Automobile Insurance Company’s, Motion to Disqualify Nicole Malick, Esq., and Nicole Malick, P.A., the Court having held an evidentiary hearing on same, having taken testimony of Teresa Rodriguez, supervisor for United Automobile Insurance Company, hereby makes the following findings:
1. It is undisputed that Nicole Malick, Esq., was employed at Troy Ferguson, P.A., from November 21, 2002, through approximately April, 2003, which firm represented the Defendant. From April, 2003, through September 20, 2006, Ms. Malick was employed by the Office of the General Counsel, that is, the in-house trial division for the Defendant.
2. Testimony was offered by Teresa Rodriguez, Esq., a“Senior Supervisor”who was the sole witness for the Defendant. Ms. Rodriguez testified that early in Ms. Malick’s employment, Ms. Malick was promoted to a position with training and supervisory duties as to a number of “caseload handling attorneys” employed by the Defendant.
3. It is undisputed that the Defendant and its witness, Ms. Rodriguez, did not assert that Ms. Malick had any“actual knowledge”of the case of Mauricio Olmos vs. United Automobile Insurance Company, Case No. 03-13500 CC 05, that was pending in Dade County from approximately August, 2003, through February, 2007, despite Ms. Rodriguez’ review of the Defendant’s computerized and calendared internal notes and full access to the physical litigation and claims files.
4. The Defendant withdrew its assertion in paragraph sixteen (16) of its Motion to Disqualify Nicole Malick, Esq., and Nicole Malick, P.A., that alleged Ms. Malick“did cover and attend the deposition of our litigation adjuster, Sandra Canto, back on August 3, 2005”in Case No. 03-13500 CC 05.
5. Plaintiffs’ counsel proffered evidence and documentation from Court Reporter Edmee Pratts that said deposition was, in fact, cancelled by then Plaintiff’s counsel Daniel Grissom, Esq., and Ms. Malick neither covered nor attended any such deposition.
6. The Defendant merely asserted that Ms. Malick “co-supervised” Monica Barnes, Esq., for a period of time during her employment, and that Ms. Barnes was the assigned handling attorney for Case No. 03-13500 CC 05.
7. The Court rejected Plaintiff’s counsel’s argument of “waiver” of the alleged conflict despite the procedural posture of the instant case.
8. The Court likewise rejected Defendant’s counsel’s argument that Ms. Malick’s training, knowledge of, and/or participation in the Defendant’s annual“Retreats”and access to files during her employment warrants disqualification.
9. The Court recognizes that disqualification of a party’s chosen counsel is an extraordinary remedy.
10. However, it is undisputed that the instant case and Case No. 03-13500 CC 05 involve the same automobile accident, the same named insured, and two of the same medical providers.
11. For that reason, the Defendant’s Motion to Disqualify Nicole Malick, Esq., and Nicole Malick, P.A., is granted. The Court advised Counsel for the Parties that its ruling is“extremely narrow” based on the facts and circumstances adduced at hearing on July 24, 2007.
It is thereby ORDERED AND ADJUDGED:
1. Defendant United Automobile Insurance Company’s Motion to Disqualify Nicole Malick, Esq., and the law firm of Nicole Malick, P.A., is hereby granted.
2. That plaintiff has (30) days from the date of entry of this order to find new counsel.
