10 Fla. L. Weekly Supp. 701a
Insurance — Personal injury protection — Attorney’s fees — Appellate — Justiciable issues — Appellate court has jurisdiction to entertain section 57.105 motion for attorney’s fees despite insurer’s voluntary dismissal of petitions for writ of certiorari — Where insurer had no basis to seek disqualification of co-counsel of law firm representing various plaintiffs in actions against insurer on ground that law firm had hired attorney who was formerly employed by insurer as claims litigation specialist, and insurer knew or should have known that 73 petitions for writ of certiorari contesting denials of motions for disqualification and motions to stay proceedings to allow insurer to investigate and corroborate motions for disqualification were not supported by material facts necessary to establish claim and application of law to those facts, it does not appear that petitions were filed in good faith, but rather, for purpose of delay — Attorney’s fees awarded
PROGRESSIVE BAYSIDE INSURANCE COMPANY, Petitioner, v. FISHMAN & STASHAK, M.D.’S, P.A., d/b/a GOLDCOAST ORTHOPEDICS, (Danielle Fitzgerald), Respondent. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 02-04566(09). July 8, 2003. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE having come before the Court upon the Respondent’s Motion for Attorneys Fees and Costs Pursuant to F.S. Section 57.105, and the Court having considered same, having heard argument of counsel, and otherwise being duly advised in premises, finds and decides as follows:
The Petitioner, comprised of various Progressive corporations, filed 73 Petitions for Writ of Certiorari against various Respondents/Plaintiffs. The filing of the Petitions by the various Progressive corporations arises from the employment of Glenn Siegel (Siegel) by Progressive Express Insurance Company and Progressive Southeastern Insurance Company, as a medical claims litigation specialist/adjuster during the period March 1999 to October 2000. As a condition of his employment, Siegel signed a confidentiality agreement. Although a member of the Florida Bar, he did not act as an attorney for any Progressive corporation, but rather his job duties consisted of overseeing and monitoring the litigation in Personal Injury Protection (“PIP”) claims.1 All aspects of the legal representations of the various Progressive Insurance companies were handled by in-house or outside counsel. It is important to note that, while there are at least seven different Progressive insurance corporations which are incorporated in the State of Florida, Siegel only worked for Express and Southeastern.
On October 31, 2000, Siegel joined the law firm of Kane & Kane (Kane), which is primarily engaged in the representation of plaintiffs against third party tortfeasors and insurance companies. Approximately 11 months later, the attorney’s for the various Progressive insurance corporations moved to disqualify Siegel and Kane as attorneys in cases wherein they had sued any Progressive insurance company. While the allegations in the motions to stay and motions to disqualify assert that Siegel allegedly obtained confidential information regarding a Preferred Provider (“PPO”) arrangement with his former employer, motions have been filed in virtually every type of claim filed against the various Progressive insurance corporations. The attorneys for the various Progressive insurance corporations argue that Siegel and Kane should be barred from representing plaintiffs in such claims against it on grounds that the Florida Rules of Professional Conduct preclude Siegel and Kane from representing plaintiff in PIP cases against any Progressive insurance corporations; and that as an adjuster/litigation specialist, Siegel was privy to confidential information and breached his confidentiality agreement with Progressive. Subsequently, attorneys for the various Progressive insurance corporations began filing Motions for Disqualification against the firm of Watson & Lentner, alleging that the Kane firm may have co-counsel agreement with Watson & Lentner, and Kane’s hiring of Siegel should disqualify Watson & Lentner. Additionally, although Siegel only worked for Express and Southeastern, Progressive filed their Motions to Stay and Motions for Disqualification in all cases where the law firm of Watson & Lentner appeared as counsel, regardless of the Progressive corporation sued or the issues involved in the lawsuit. Progressive also filed Motions to Stay the Proceedings to investigate and corroborate its motion for disqualification; and so that courts in other jurisdictions could decide the question of disqualification. All of the motions to stay and the motions to disqualify were denied by the trial courts. Progressive then filed the Petitions for Writ of Certiorari that form the basis for the instant motion. Subsequently, the Petitioners voluntarily dismissed all 73 petitions on August 21, 2002, and withdrew with prejudice any pending motions to stay or disqualify the firm of Watson and Lentner filed at the trial level. On September 17, 2002, the matters were consolidated and transferred to this division.
Respondents now moves for sanctions under §57.105(1) and (3) Florida Statutes (Supp. 2000). Respondents argue that, at the time the petitions were filed by the various Progressive corporations, they or their attorney knew or should have known this particular claim or defense was not supported by the material facts necessary to establish the claim or defense; or would not be supported by the application of then-existing law to those material facts. §57.105 Florida Statutes. Respondents further argue that the action taken in this proceeding was “primarily for the purpose of delay,” and therefore they are entitled to sanctions under §57.105(3).
At the outset, Progressive argues that this Court does not have jurisdiction to award attorneys fees pursuant to §57.105 Fla. Stat., as the various Progressive insurance corporations had voluntarily dismissed the petitions. This argument is without merit. It is well settled that a voluntary dismissal will not oust the trial court of jurisdiction to entertain §57.105 motions. Froman v. Kirland, 746 So.2d 1120 (Fla. 4th DCA 1999); Westwood Community Two Association, Inc. v. Lewis, 662 So.2d 1011 (Fla. 4th DCA 1995). Moreover, a motion for attorney’s fees pursuant to §57.105 Fla. Stat., may be employed by the appellate court against a party for taking a frivolous appeal. Freedom Commerce Centre Venture v. Ranson, 823 So.2d 817 (1st DCA 2002), Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001). As such, this Court does indeed have jurisdiction to entrain the Respondent’s motion for attorney’s fees.
“The common law writ of certiorari is a special mechanism whereby an upper court can direct a lower tribunal to send up the record of a pending case so that the upper court can “be informed” of events below and evaluate the proceedings for regularity.” Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 842 (footnote omitted). “The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.” Id. It is important to note that the disqualification of a party’s attorney is an extreme remedy and should be employed sparingly, and only in limited circumstances. Allstate Insurance Company v. Bowne, 817 So.2d 994, 998 (Fla. 4th DCA 2002), Scott v. Higginbotham, 834 So.2d 221, 223 (Fla. 2d DCA 2002). In order to merit certiorari, a petitioner must show that the order departed “from the essential requirements of the law causing material injury to the petitioner for the remainder of the proceedings and leaving no adequate appellate remedy.” Scott, 834 So.2d at 223. “The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) (citations omitted). A reviewing court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Id. (emphasis in original) (citations omitted).
In the matter sub judice, Progressive argued in support of the Petitions for Writ of Certiorari that the trial court should have entered a limited stay of discovery so it could first decide whether counsel should be disqualified. However, the trial courts did decide the issue of disqualification. In fact, every Broward County Court that entertained Progressive’s motions to disqualify denied the motions and found either that Progressive did not establish a prima facie case of disqualification or that the grounds were insufficient because they were neither supported by material facts nor law. Some judges subsequently sanctioned the Defendant pursuant to §57.105 for filing a motion not supported by the material facts necessary to establish the claim nor supported by the application of then-existing law.
Upon a review of the record, it is clear that Progressive had no basis for seeking disqualification of Watson & Lentner. Although Progressive argued that based on the sworn testimony of Glenn Siegel, it appeared that confidential and/or privileged information may have been shared with the firm Watson & Lentner, a review of the transcript reveals that the evidence is to the contrary and that no information was shared as Glenn Siegel’s deposition states. Moreover, assuming arguendo that Siegel was acting as an attorney for Progressive (although the evidence clearly shows that at no time did Siegel work for Progressive in the capacity of attorney), and Kane should have been disqualified, even if Kane had a co-counsel agreement with Watson & Lentner, such disqualification would not extend to Watson & Lentner. “As a general rule, the courts do not impute the disqualification of a person in one firm to a person in another firm, even where the members of the two firms are working together, so long as there ‘is only a small actual risk of confidential client information spreading from the primarily conflicted lawyer to the second firm.’ ” Baybrook Homes, Inc. v. Banyon Construction & Development, Inc., 991 F. Supp. 1440, 1444 (M.D. Fla. 1997). As the Court in Baybrook reasoned, “[i]mputing knowledge to an attorney who acts as co-counsel from another attorney in a separate firm who himself possessed only imputed knowledge would result in unnecessary disqualification’s.” Id. at 1442. “A ‘reasonable possibility’ of impropriety must exist to necessitate disqualification under the appearance of impropriety standard.” Id. (citations omitted). “Imputing knowledge that is itself imputed does not constitute a “reasonable possibility.” Id. As such, the motions to disqualify were not supported by the application of the then-existing law to the facts in this matter.
It should be noted that Progressive has previously sought certiorari review on the trial courts’ orders denying a stay of the proceedings in some cases, essentially asserting the same argument as in the 73 Petitions which Progressive dismissed. In those cases, the circuit court denied the Petitions, finding that Progressive had failed to meet its burden of establishing that the trial court abused its discretion in refusing to stay the proceedings. The court noted that the proceedings were pending for quite some time, and that the trial court was not required to stay the proceedings so that Progressive could decide at some point in the future to file another motion for disqualification, or to have the issue of disqualification addressed in another jurisdiction that might rule more favorably. The court also noted that Progressive, in one case expressly declined to seek review of the trial court’s order on the issue of disqualification; and in another did not even bother to file a motion for disqualification below.2 It is axiomatic that when no motion for disqualification is pending there can be no departure from the essential requirements of law when a trial court denies a motion to stay the proceedings in the chance that a new motion to disqualify will be filed at some point in the future. With the knowledge of these aforementioned rulings in hand, Progressive filed the Petitions for Writ of Certiorari that are the subject of the instant motion.
Based on the foregoing, this Court finds that Progressive knew or should have known that the Petitions for Writ of Certiorari were not supported by the material facts necessary to establish their claim; or were not supported by the law to those facts. Additionally, after carefully considering the record, it does not appear that the Petitions for Writ of Certiorari were filed in good faith but rather, with the primary purpose of delay. Therefore, this Court finds that the Respondents are entitled to attorneys fees and costs incurred in defending these Petitions, pursuant to §57.105(1) and (3).
Accordingly, it is hereby
ORDERED AND ADJUDGED that Respondent’s Motion for Attorney’s Fees and Costs pursuant to §57.105(1) and (3), Fla. Stat., is GRANTED.
This Court reserves jurisdiction to determine the amount of reasonable attorneys fees and costs to be awarded.
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1According to his supervisors at Progressive, Joyce Richardson and Don Matthews, they did not consider him to be an attorney acting on behalf of Progressive in any way, shape, or form. See Order Denying Motion to Disqualify on Fort Lauderdale Center for Chiropractic Care, Inc. v. Progressive Express Insurance Company, 55-00-15564-RD, [9 Fla. L. Weekly Supp. 558c] 15th Judicial Circuit Court, filed as an exhibit with Respondent’s motion. Both parties refer to the Order of Judge Burton in their respective pleadings.
2See Judge Thomas Lynch’s Orders Denying Certiorari on Progressive Bayside Insurance Company v. Fishman & Stashak, M.D.’s, P.A., case no. 02-4567 (lower court case no. 01-10409), and on Progressive Express Insurance Company v. Central Palm Beach Physicians, Inc., case no. 02-6826 (lower court case no. 01-27135), which orders are attached as exhibits to the motion for attorney’s fees. Upon the denial of the Petitions for Writ of Certiorari, Progressive then filed a Renewed Motion for Disqualification which was again denied and the trial court sanctioned the Defendant for this conduct. See e.g. Fishman & Stashak (Virgo Jean Jacques) v. Progressive Bayside Insurance Company, case no. 01-013760 COCE 55; Fishman & Stashak (Mark Kloberg) v. Progressive Bayside Insurance Company, case no. 01-7145 COCE 55, wherein Progressive filed a renewed motion after denial while case was pending on appeal.
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