Agic, Inc. v. N. Am. Risk Servs., Inc.

• Decision Date: 23 August 2013
• Docket Number: No. 5D13–1533.,5D13–1533.
• Citation: 120 So.3d 189
• Parties: AGIC, INC., Petitioner, v. NORTH AMERICAN RISK SERVICES, INC., et al., Respondent.
• Court: Florida District Court of Appeals

120 So.3d 189

AGIC, INC., Petitioner,

v.NORTH AMERICAN RISK SERVICES, INC., et al., Respondent.

No. 5D13–1533.

District Court of Appeal of Florida, Fifth District.

Aug. 23, 2013.

John E. Johnson, Shutts & Bowen, LLP, Tampa, for Petitioner.

Phillip S. Howell and Stephen A. Messer, of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Tampa, for Respondent, Irvin B. Green and Associates, Inc.

Daniel A. Martinez and Inguna Varslavane–Callahan, of Callahan Martinez, LLC., St. Petersburg, for Respondent, North American Risk Services, Inc.

GRIFFIN, J.

Petitioner, AGIC, Inc. ( [“AGIC”], seeks certiorari review of the order granting Respondent, Irvin B. Green & Associates, Inc.'s [“IBGA”], motion to disqualify its counsel, Shutts & Bowen, LLP [“Shutts & Bowen”].¹ In February 2010, prior to the filing of the lower court action, IBGA retained attorney Ellen Novoseletsky [“Novoseletsky”] to provide some drafting advice for the amendment to the Managing General Agency agreement [“MGA”] ) between IBGA and AGIC. Novoseletsky spent approximately five billable hours on the assignment. Novoseletsky subsequently joined Shutts & Bowen in October 2011.

Respondent, North American Risk Services, Inc. [“NARS”], originally filed the underlying action against AGIC on August 27, 2012. The complaint included claims against AGIC for breach of contract and against IBGA for indemnity. The legal dispute arose out of the relationship between the parties pursuant to two contracts, the amended MGA and a Claims Service Agreement [“CSA”]. In the original MGA, IBGA contracted with AGIC (an insurance company in Florida) to serve as AGIC's managing general agent. In the CSA, NARS contracted with both AGIC and IBGA to process insurance claims for AGIC. Pursuant to the terms of the CSA, NARS was responsible for processing claims and IBGA was responsible for originating policies for AGIC.

On June 7, 2012, AGIC terminated both NARS and IBGA on the basis of their gross negligence and inaction in the performance of their duties in handling policies, including administration, underwriting, and adjusting. NARS then filed suit against AGIC for not making payments under the terms of the contract and for wrongful termination. As IBGA was also sued by NARS for indemnity, IBGA on September 13, 2012, filed a counterclaim against NARS and a cross-claim against AGIC.

Prior to the filing of its answer/affirmative defenses and cross-claim/counterclaim, IBGA learned that the law firm of Shutts & Bowen was representing AGIC with regard to the present legal dispute. Because Ellen Novoseletsky, a partner at Shutts & Bowen, previously represented IBGA with regard to the drafting of the amended MGA, IBGA moved to disqualify Shutts & Bowen at the same time it filed its answer.

IBGA's executive vice-president, Tom Johnston, submitted an affidavit which states, in part:

In or about February 2010, attorney Ellen Novoseletsky was retained by Irvin B. Green & Associates, Inc. to help draft a Managing General Agency Agreement.

During the time that attorney Novoseletsky was retained by Irvin B. Green & Associates, Inc., internal, confidential information was discussed between myself, attorney Novoseletsky and a select few management-level employees at Irvin B. Green & Associates, Inc. These discussions were directly related to the terms and intent of the Managing General Agency Agreement that attorney Novoseletsky was helping to revise and draft.Ms. Novoseletsky submitted an affidavit on behalf of AGIC which stated, in part:

Prior to joining Shutts & Bowen, I was employed by Hicks Porter Ebenfeld & Stein, P.A. (“Hicks Porter”) from April 2001 to August 2011.

While at Hicks Porter, I represented Irvin B. Green & Associates, Inc. (“IBGA”) in connection with the review of and revisions to an agreement between IBGA and AGIC, INC. (“AGIC”), the Management General Agency Agreement (the “MGA”).

During the course of my representation of IBGA, I had no involvement whatsoever with the instant litigation between IBGA, AGIC and North American Risk Services, Inc. (“NARS”). I have had no involvement with the litigation between the parties and have no access to any files in that case.

During the course of my representation of IBGA, I had no communication with representatives of IBGA about the actual performance or breach of any obligation by any party to the MGA or any other agreement involving AGIC.

On March 13, 2013, the trial court heard argument on IBGA's motion to disqualify counsel, but did not conduct an evidentiary hearing. On March 28, 2013, the trial court entered its order disqualifying Shutts & Bowen.

At the outset, we note that the order contains a factual error:

From April 2001 through August 2011, Attorney Ellen Novoseletsky represented IBGA.

Neither party asserted that Novoseletsky represented IBGA for over ten years. Novoseletsky's affidavit stated: “I was employed by Hicks Porter Ebenfeld & Stein, PA from April 2001 to August 2011.” She only represented IBGA during the month of February 2010, as verified by Johnston's affidavit. Her supplemental affidavit clarified that her representation of IBGA took place in February 2010, was limited exclusively to reviewing and revising the MGA, and involved about five hours of attorney time. She added that she joined Shutts & Bowen in October 2011, and reiterated that she had no knowledge or information as to any matters involving breach or performance under the MGA. ²

In its order granting the motion to disqualify, the trial court found that during the time of representation as IBGA's...