21 Fla. L. Weekly Supp. 487a
Online Reference: FLWSUPP 2106JARAInsurance — Personal injury protection — Attorneys — Disqualification — Conflict of interest — Insurer did not have standing to seek disqualification of medical provider’s attorney based on attorney’s withdrawal from representation of insured where there is no privity of contract between insurer and provider’s attorney, and conflict does not clearly call into question fair or efficient administration of justice in manner that would allow insurer to stand in shoes of insured and establish standing to seek disqualification
AB DIAGNOSTIC CENTER (a/a/o Octavio Jaramillo), Petitioner, v. PRAETORIAN INSURANCE COMPANY, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-057AP. February 24, 2014. Counsel: Marlene S. Reiss, for Petitioner. Daniel J. Santaniello, Dorren E. Lasch, William K. Pratt, II; for Respondent.
(Before RODRIGUEZ, MARIN, and GORDO, JJ.)
(PER CURIAM) On August 25, 2010, Octavio Jaramillo, insured by Respondent Praetorian Insurance Company, was involved in an automobile accident. Jaramillo received diagnostic services from Petitioner AB Diagnostic Center on August 30, 2010, and Jaramillo assigned the PIP benefits of his insurance policy to Petitioner. Petitioner submitted claims for the services to Respondent, but Respondent initiated an investigation into potential fraud regarding the claims. Petitioner filed suit against Respondent on April 25, 2011, seeking payment for the services rendered.
Petitioner AB Diagnostic Center is represented by the law firm of DePrimo & Fleites, P.A. Octavio Jaramillo also retained the DePrimo firm to represent him at a deposition scheduled by Respondent. The DePrimo firm later discharged Jaramillo as a client. Respondent filed a Motion to Disqualify on December 16, 2011, asserting that a conflict of interest existed between AB Diagnostic and Jaramillo, and sought to disqualify the DePrimo firm as Petitioner’s counsel. The lower court entered an order granting the Motion on January 22, 2013. Petitioner now seeks certiorari review of the lower court’s interlocutory order disqualifying DePrimo & Fleites, P.A. as Petitioner’s counsel.
On certiorari review of an interlocutory order, this Appellate Court will review whether the lower court departed from the essential requirements of the law, whether the order will cause material injury through subsequent proceedings, and whether the injury is one for which there is no adequate remedy after final judgment. See Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b] (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987)).
The primary issue presented in this case is whether Respondent Praetorian Insurance Company had standing to seek disqualification of the DePrimo firm as Petitioner’s counsel. Florida law generally holds that a party does not have standing to seek disqualification unless there is privity of contract between the attorney and the party seeking disqualification. See Info. Sys. Associates, Inc. v. Phuture World, Inc., 106 So. 3d 982, 984-85 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D351a]; THI Holdings, LLC v. Shattuck, 93 So. 3d 419, 424 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1621b]; Cont’l Cas. Co. v. Przewoznik, 55 So. 3d 690, 691 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D453a]. In the instant case the record is clear that there was no privity of contract between Respondent and the DePrimo firm, and that Respondent did not have standing to seek disqualification on that basis.
Instead, Respondent relies on the following language from the Florida Supreme Court to establish its standing to seek disqualification:
The question then is whether the insurers may “stand in the shoes” of their insured for purposes of seeking disqualification of the [law] firm on grounds of conflict of interest. Comments to the Rules of Professional Conduct indicate that under certain circumstances someone other than the client may request disqualification. Thus, where a conflict “is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question.”
State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 632 (Fla. 1991) (quoting Comment to R. Regulating Fla. Bar. 4-1.7). Respondent asserts that the lower court correctly applied K.A.W. to determine that Respondent could “stand in the shoes” of its insured and establish standing to seek disqualification. Petitioner counters that the lower court incorrectly found that Respondent had standing, and asserts that K.A.W. does not apply to the instant case.
Upon review of the instant case and the relevant case law, this Appellate Court finds that this case is distinguishable from K.A.W., and does not involve the same circumstances or implicate the same concerns that would allow an insurer to “stand in the shoes” of its insured. Accordingly, this Court finds that the lower court departed from the essential requirements of law by finding that Respondent had standing to seek disqualification of Petitioner’s counsel. This Court further finds that the order would cause material injury to Petitioner in subsequent proceedings, and that the injury would not be redressable on appeal.
THEREFORE, based on the foregoing analysis, the Petition for Writ of Certiorari is hereby GRANTED, and the lower court’s January 22, 2013 order disqualifying DePrimo & Fleites, P.A. as Petitioner’s counsel is hereby QUASHED.
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