9 Fla. L. Weekly Supp. 629c
Insurance — Personal injury protection — Attorneys — Disqualification — Conflict of interest — Motion to disqualify attorney for medical provider on ground that one of lawyers with plaintiff’s firm formerly worked for insurer is denied where provider’s attorney did not have prior attorney-client relationship with insurer, attorney did not work on case at bar when employed by insurer, beyond similarity of all PIP cases there has been no showing of substantial relationship between case at bar and any case in which attorney was involved while employed by insurer such as to give medical provider an unfair advantage, and confidential information to which insurer claims attorney had access is identified only as “when we settle and when we don’t”
BROWN’S CHIROPRACTIC CENTER, INC. (Valerie Draeger), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 14th Judicial Circuit in and for Bay County. Case No. 01-2944-SP. July 1, 2002. John D. O’Brien, Judge. Counsel: Brian K. Korte, Boca Raton, for Plaintiff. P. David Brannon, Tallahassee, for Defendant.
ORDER
This is another of the Beech Street cases in which the Defendant claims the right to pay according to a schedule of payments created by a PPO organization, even though the policy was not a PPO policy. The Court has previously addressed the same issue in another case. See attached decision in Waters v. Nationwide Mutual Insurance Company, Case No.: 01-CC-1087. The ultimate issue in this case is the same as in the Waters case, but the preliminary question now before this Court is whether the Plaintiff’s attorneys must be disqualified because Glenn Siegel, one of the lawyers with the Plaintiff’s firm, formerly worked for Defendant.
There is no allegation that Mr. Siegel worked on the case before this Court and thereby gained information specific to this particular case. The allegation is that Mr. Siegel worked on cases similar to this case and thereby gained information about the general thinking of the Defendant’s agents on similar cases. As phrased by counsel in the hearing on the matter of disqualification held in Delray Beach, more particularly described hereinafter, Mr. Siegel learned: “when we settle, when we don’t, what factors are considered in proceeding to litigation and when we back off.” It is immediately obvious that if such general information disqualifies Mr. Siegel and his law firm, then neither Mr. Siegel nor his firm could sue Progressive on any case whatsoever, since “when we settle and when we don’t” could always be asserted to be relevant.
Counsel agree that sufficient information has been provided this Court to decide the issue of disqualification. Among the documents tendered is a transcript of the Delray Beach hearing on May 6, 2002: Fort Lauderdale Center for Chiropractic Care, Inc. v. Progressive Express Insurance Company, Case No.: 0155564 RD [9 Fla. L. Weekly Supp. 558c], together with depositions, transcripts and affidavits out of that case and this one. The parties have also provided the Court with memoranda and other documents, the sum of all aggregates approximately 18 inches of papers.
The defendant asserts various Florida Bar rules in support of its position, including 1-4.9. There was never an attorney-client relationship between the Defendant and Glenn Siegel nor is it asserted that Mr. Siegel worked on the case now before this Court when employed by Progressive. Instead it is alleged he worked on similar cases. The comment to rule 1.4-9 is instructive:
When a lawyer has been directly involved in a specific transaction subsequent representation of other clients with material adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.
Defendant cites the case of Taxon v. Royal Caribbean Cruises, Ltd., 641 So.2d 417 (Fla. 3rd DCA 1994) in support of its motion. In that case the Court held that an adjuster for the cruise line was subsequently disqualified from acting as counsel for Plaintiff in a Jones Act case against the cruise line. The Court found that the lawyer was privy to confidential information during his employment, although that information is not described in the decision. Since the type of information to which the lawyer had access is not described, it gives the Court little guidance in this case. Whatever it was, it had to be something more than simple similarity of type of case. See Royal Caribbean Cruises, Ltd. v. Buenaagua, 685 So.2d 8 (Fla. 3rd DCA 1997). In that case the cruise line presented evidence that “all Jones Act cases are similar” in attempting to disqualify a former adjuster from representing a Plaintiff in a Jones Act case against the cruise line. In denying the disqualification the Court said such similarity would not be sufficient. “All patent cases are similar; all bankruptcy cases are similar; indeed all eviction, negligence and immigration cases, and all cases of any singular type share elements in common.”
All PIP cases are similar, but beyond that, there has been no showing of a “substantial relationship” between the case before this Court and any case in which Mr. Siegel was involved while an employee of Progressive such as to give the Plaintiff an unfair advantage. See Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2nd DCA 1992) (“the matter in which the lawyer or firm subsequently represented the interest adverse to the former client must be the same or substantially related to the matter in which it represented the former client”).
The Defendant claims Siegel had access to confidential information but that information is unidentified other than “when we settle and when we don’t.” There has been no showing that the Plaintiff obtained any unfair advantage from the information obtained. See Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2nd DCA 1988).
It is of note that the ultimate issue to be decided in this case is not dependent on the resolution of an extensive factual dispute. A casual reading of the attached decision of this Court in a similar case suggests the resolution of this case is mostly a matter of law. The Court is hard pressed to even imagine what factual information the Plaintiff counsel could have obtained that would give Plaintiff an unfair advantage in the resolution of this basically legal issue of whether the Defendant could pay according to a Beech Street schedule.
The Court had a meeting with counsel on this case the 6th day of June 2002. At that time the Defendant asked to be permitted to present additional materials before June 21, 2002. No additional materials were presented before June 21, 2002, however, the Court’s judicial assistant received a call asking for additional time to present a “summary,” which the Court granted. Thereafter, the Defendant tendered six depositions, a package of documents for in camera review and the summary. The Court has reviewed the summary. According to the pleading filed with the in camera documents, such documents had been tendered in the case of Fort Lauderdale v. Progressive, supra, and held to be discoverable. The Court does not favor in camera tenders since they are, fundamentally, ex-parte communication with the Court. However, since the Plaintiff did not object at the time the in camera tender was discussed, the Court has briefly reviewed same. None of the materials bear directly on the case before this Court. Rather, the materials seem to come under the rubric discussed above of “when we settle and when we don’t.” The Court does not consider the materials to be compelling in the determination of the issue before it.
In light of the foregoing, the motion of the Defendant to disqualify Plaintiff’s counsel is hereby DENIED.
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Attachment
DR. WILLIAM B. WATERS (Christina Miller), Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant. County Court, 14th Judicial Circuit in and for Bay County. Case No. 01-CC-1087. December 28, 2001. John D. O’Brien, Judge. Counsel: Andrew D. Wyman, Ft. Lauderdale, for Plaintiff. Jay M. Walker, St. Petersburg, for Defendant.
SUMMARY JUDGMENT
The facts in this case are not in dispute. The parties entered into a stipulation of fact and further affirmed during the hearing that the facts are settled. It is only the application of the law to the facts that the parties debate.
The Defendant insurance company issued an insurance policy to Christine Miller. The policy was not a PPO policy as authorized by Fla. Stat. 627.736. Thereafter Christine Miller was injured in an auto accident, assigned her rights under the policy to the Plaintiff, and received medical treatment from the Plaintiff. Plaintiff now complains because the insurance company refused to pay more than PPO rates even though the policy was not a PPO policy.
The Defendant asserts the right to pay reduced rates because Plaintiff entered into a contract with Beach Street Corporation, a Preferred Provider Organization, as did the Defendant. Even though the contract was not admitted in this proceeding, the Defendant asserts that based on the Beach Street Contract it is entitled to establish the amount to be paid in accord with the fee schedules of that contract. The Defendant, in effect, asserts the right to pay PPO rates, not because it issued a PPO policy, but because the provider entered into a contract with a PPO Organization.
This argument must fail. Plaintiff has the right to bring this action only because of the assignment of the insured’s rights. Those rights are not diminished by any contract which the Plaintiff doctor may have with Beach Street or any other third party. To the contrary, those rights are fixed by the terms of the Defendant’s policy and the applicable law.
The insurance company here seeks to have the best of both worlds. It did not issue a PPO policy which would have paid lower premiums, but nevertheless it seeks the advantage of a PPO policy to pay lower medical rates. To accept this argument, the Court would have to accept the proposition that the right of the insurance company to pay reduced rates depends on the chance selection of the provider rather than compliance with Fla. Stat. 627.736. According to this argument, if the selected doctor would ever accept PPO rates, evidenced by his contract with a PPO organization, then he must always accept such rates if the insured’s carrier is also a signatory. This Court cannot accept such a proposal.
The motion of the Plaintiff for Summary Judgment is hereby granted. The Court specifically reserves jurisdiction to award costs, interest and attorney fees.
The parties have requested this Court certify the question presented in this case as one of great public importance under Fla. R. App. P. 9.030. The parties say there are hundreds of cases with this same issue pending in various courts around the state. Therefore, since this same issue has arisen in many cases and since there is no controlling precedent, this Court hereby certifies the following question:
May an insurance company reduce fees payable to a doctor for medical care because the treating physician entered into a contract with a PPO organization to accept the reduced fees payable under a PPO policy, even though the patient treated did not have a PPO policy and the physician took an assignment of the insured’s rights under the policy in return for treatment?
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