15 Fla. L. Weekly Supp. 177a
Insurance — Personal injury protection — Attorneys — Disqualification — Conflict of interest — Prior representation — Motion to disqualify medical provider’s attorney due to prior employment with insurer is denied where cases in which attorney represented insurer were based on different factual circumstances than present case, attorney denies ever working on file for present case while employed by insurer, and attorney did not obtain confidential information related to insurer’s defenses and strategies in present case
AAA MEDICAL GROUP, a/a/o COLLAZO AXEL, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 06-19499 CC 05 08. December 5, 2007. Wendell M. Graham, Judge. Counsel: Monica D. Barnes. Stephen Cameron. Liam P. Kelly. Neil M. Gonzalez.
ORDER DENYING DEFENDANT’S MOTION TO DISQUALIFY STEPHEN CAMERON
THIS CAUSE came before the court on October 2, 2007 on Defendant’s Motion to Disqualify Stephen Cameron. Having heard argument of counsel, reviewed the memoranda of law, and being otherwise advised in the premises, the court makes the following findings of fact and conclusions of law:
On December 15, 2001, Collazo Axel was involved in an automobile accident and sustained injuries. He sought treatment for his injuries under his personal injury protection (PIP) benefits found in his automobile policy. Plaintiff AAA Medical Group, a medical provider and assignee of the PIP benefits, sued Defendant United Automobile Insurance Co. for failing to pay those benefits. Stephen Cameron, Esq. of Stephen A. Cameron, P.A. was substituted as Plaintiff’s counsel in the PIP suit on July 11, 2007.
Defendant seeks to disqualify Plaintiff’s counsel and his firm on the basis of a conflict of interest under the Rules Regulating the Florida Bar, Rule 4-1.9(a). Defendant claims that Plaintiff’s counsel was a former member of its senior management team and its former in house counsel and that the matters in the present PIP case are the same or substantially related to the matters of the PIP cases in which Plaintiff’s counsel represented the Defendant.
The Florida Supreme Court has recognized a two part test for disqualification of an attorney on the basis of an alleged conflict of interest with a former client under Rule 4-1.9. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991). The first part requires that an attorney-client relationship exists and the second part requires that the matter which the attorney presently represents was the same or a substantially related matter in which she or he represented the former client. Id. and Junger Utility & Paving Co. v. Myers, 578 So. 2d 1117, 1119 (Fla. 1st DCA 1989). It is undisputed that the first part of the test as to whether an attorney-client relationship existed between the Plaintiff’s counsel and the Defendant was satisfied. The issue before the court is whether the second part of the test was met.
Under this Rule, whether the two legal matters are substantially related for purposes of determining disqualification depends upon the specific facts of each particular situation. The Florida Bar v. Dunagan, 731 So. 2d 1237, 1240 (Fla. 1999). A substantially related matter is shown where the relationship between the subject matter, issues and causes of action of both the present and former representation are related. United Auto. Ins. Co. v. Nono Jean-Baptiste, 11 Fla. L. Weekly Supp. 615a (Fla. 11th Cir. Ct. Apr. 20, 2004). In this case, the court finds Defendant has failed to meet its burden of proof with regard to the second part of the test.
Defendant claims that Plaintiff’s counsel had access to all files arising from PIP cases which it was defending. These allegations involved Plaintiff’s counsel working on a recurrent type of problem involving a breach of contract for Defendant’s failure to pay PIP benefits and defending those PIP cases. Defendant is merely seeking to disqualify Plaintiff’s counsel from litigating PIP cases representing any health care provider against it. The comment to Rule 4-1.9 indicates that the Rule is not to be so broadly applied. The current case filed after Plaintiff’s counsel left the Defendant’s employ is a wholly distinct problem of that type.
Plaintiff argues that the facts of the present PIP case are not the same although it is a PIP case. Each PIP case including the present case is factually different in having different dates of loss, policies, treatments, medical providers and reasons as to why the insurer fails to pay the PIP benefits. Charles Tucker, D.C. a/a/o Lillian Julow v. Allstate Indem. Co., 10 Fla. L. Weekly Supp. 41b (Fla. 7th Cir. Ct. Oct. 21, 2002). Particularly, in the present PIP case, the matters involved Defendant’s alleged failure to provide an explanation of benefits, failure to provide a peer review and a declaratory matter regarding a PIP payout log.
The closest allegation to any violation of the Rule was that the file of the present case was pending while Plaintiff’s counsel was employed by the Defendant. But, Plaintiff’s counsel flatly denies that he worked on the file of the present case while employed by the Defendant. Similarly, as in Allstate Ins. Co. v. Charles T. Tucker, D.C. a/a/o Shelba Dyes, 10 Fla. L. Weekly Supp. 756a (Fla. 7th Cir. Ct. July 31, 2003) it is not alleged that Plaintiff’s counsel ever reviewed, analyzed or was in any way involved in defending Defendant against the present case involving the Plaintiff’s medical provider he now represents.
A more difficult issue arises as Defendant seeks to disqualify Plaintiff’s counsel under Rule 4-1.9(b) on the ground that he was privy to proprietary and confidential information while in the Defendant’s employ to its disadvantage. Defendant refers to defense strategies for evaluating cases, claims handling, analysis and investigations, conversations with its employees and internal documents and reports as confidential information. Plaintiff’s counsel does not dispute that he had access to the information but denies it was confidential. Plaintiff’s counsel relies upon the exception in the Rule that the pleadings utilized in the present PIP case were prepared with generally known information of the Defendant.
That exception in the Rule states that “. . . except . . . “when the information has become generally known.” Plaintiff’s counsel points out that the manner in which the Defendant adjusts its files is a matter of general policy and practice as well as the standards utilized to adjust and evaluate cases. This information could be learned in ordinary practice. Plaintiff’s counsel also points out that any financial information obtained by him came from dissemination by the media. This is permissible as shown by the comment to the Rule.
The court finds that Plaintiff’s counsel did not acquire confidential information under the Rule during his employment with the Defendant related to its defenses and strategies in handling the present case. Defendant has done its best to create the impression that confidential information was disclosed but nothing relates specifically to the pending case. The information was generally known information as to type of cases that Plaintiff’s counsel was employed to defend.
Defendant relies upon an alleged similar situation under Rule 4-1.10(b), (c) involving imputed disqualification in Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. 4th DCA), rev. denied, 605 So. 2d 1265 (Fla. 1992). The Orozco court held that paragraphs b and c of that Rule operated to disqualify a law firm only when the attorney had actual knowledge of the information protected by Rules 4-1.6 and 4-1.9. Id. at 243. But, unlike in Orozco, no affidavits were filed in this action in support of the motion to disqualify. Further, no requirement exists of actual knowledge under Rule 4-1.9 as the Defendant avers for Plaintiff’s counsel to show. Accordingly, the court is unable to find that matters in the current case are the same or are a substantially related matter to that in which the Plaintiff’s counsel formerly represented the Defendant. It is thereupon,
ORDERED AND ADJUDGED that Defendant’s Motion to Disqualify Stephen Cameron is hereby respectfully DENIED.
