Pasteur Med. Center v. Wellcare of Florida, 3D06-826.

• Decision Date: 28 June 2006
• Docket Number: No. 3D06-816.,No. 3D06-826.,3D06-826.,3D06-816.
• Citation: 943 So.2d 144
• Parties: PASTEUR MEDICAL CENTER, INC., et al., Petitioners, v. WELLCARE OF FLORIDA, INC., etc., et al., Respondents.
• Court: Florida District Court of Appeals

943 So.2d 144

PASTEUR MEDICAL CENTER, INC., et al., Petitioners, v. WELLCARE OF FLORIDA, INC., etc., et al., Respondents.

No. 3D06-826.

No. 3D06-816.

District Court of Appeal of Florida, Third District.

June 28, 2006.

Rehearing and Rehearing En Banc Denied December 7, 2006.

McIntosh, Sawran, Peltz & Cartaya and Douglas M. McIntosh, Robert C. Weill and Marilyn Garcia, Fort Lauderdale, for petitioners.

Boies, Schiller & Flexner and Jennifer G. Altman and Antonio C. Castro, Miami, for respondents.

Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

CORTIÑAS, Judge.

Petitioners seek a writ of prohibition or, alternatively, a writ of mandamus based on the trial judge's refusal to disqualify the Special Master, finding Petitioners' claims legally insufficient. Because we find that the Special Master's conduct does not reach the high threshold necessary for disqualification, we deny the petitions.

I. BACKGROUND

Ariadna Marrero, Luis Menes, and Julio Herrera are health insurance agents (collectively "Agents") and former employees of respondent, Comprehensive Health Management Inc. ("Comprehensive"), a provider of healthcare management services. Gerardo Necuze, Luis A. Perez, and Manuel Enriques are principals of Pasteur Medical Centers ("Pasteur"). The Agents managed the patient relations between Pasteur and respondent, Wellcare of Florida, Inc., f/k/a Wellcare HMO, Inc. ("Wellcare"), a health maintenance organization. In December 2005, Respondents, Wellcare and Comprehensive, filed an action against the Agents and Pasteur (collectively "Petitioners"), alleging, inter alia, breach of contract and breach of confidentiality.

On December 22, 2005, the trial court appointed a Special Master¹ to oversee the interests of the patients in the transition phase while Wellcare separated from Pasteur. Specifically, the Special Master was to administer the orders set forth by the trial judge to assure the parties' compliance with federal guidelines and other laws and regulations, and to assure continuity of care for the patients. The Special Master was conferred, in part, the following powers:

It shall be up to the Court and/or the Special Master to determine the manner in which such compliance . . . shall be determined. To the extent that the Special Master desires to utilize covert investigatory tactics, he/she shall obtain prior Court approval without the necessity of notice to any of the parties. Further, the Special Master shall be free to communicate with counsel for the parties to obtain information or other materials, as he/she deems appropriate, relating to their services described hereunder.

On January 5, 2006, the trial court appointed attorney Joseph Zumpano ("Zumpano") as the Special Master upon the parties' selection and approval. On that same day, Zumpano provided full disclosure to the parties of his intent to hire the law firm of Zumpano Patricios & Winker, P.A. and its investigative arm, ZP & W Investigations, LLC, to effectuate the trial court's orders. At that time, Petitioners did not object.²

Thereafter, Petitioners filed various motions questioning Zumpano's authority under the order. On February 22, 2006, Zumpano sent a letter to the trial judge recommending the denial of the Agents' motion to vacate an order that approved the Special Master's course of action. Additionally, attorney Leon N. Patricios ("Patricios"), on Zumpano's behalf, submitted to the trial judge a courtesy copy of the Special Master's Interim Application for Award of Fees and Costs ("Interim Application for Fees"). The Interim Application for Fees, in pertinent part, specified that Petitioners: were causing unnecessary hearings; sought to thwart the trial court's efforts to put in place a Special Master; challenged the Special Master's ability to get the process moving; and were stalling the case.

On February 24 and 27, 2006, Petitioners filed motions for recusal and disqualification, contending that Zumpano, through his filings with the trial court, improperly assumed an adversarial role by advocating positions contrary to Petitioners' court filings and abandoning his impartial role. The trial court denied the motions as legally insufficient. Petitioners now seek review of these orders.

Florida Rule of Civil Procedure 1.490(d) specifies that the grounds for disqualifying a Special Master are the same as those to disqualify a judge. Fla. R. Civ P. 1.490(d). Regarding matters of impartiality, the "special master must hold himself to the same high standards applicable to the conduct of judges." Jenkins v. Sterlacci, 849 F.2d 627, 631-32 (D.C.Cir.1988)(citing U.S. v. Conservation Chemical Co., 106 F.R.D. 210, 234 (W.D.Mo.1985)). Thus, since the Special Master performs duties similar to a trial judge and is held to the same high standard, the same high threshold for the purposes of disqualification should apply. See id. at 631, n. 1.

II. STATEMENT BY THE SPECIAL MASTER

A motion for disqualification is legally sufficient "when the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214, 216 (Fla. 3d DCA 2005)(citing Johnson v. State, 769 So.2d 990, 996 (Fla.2000); MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990)). Specifically, "[t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the court's own perception of its ability to act fairly and impartially." Valdes-Fauli, 903 So.2d at 217 (citing Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983)). Based on the facts presented in this case, we find insufficient evidence that the Special Master acted in such a manner that created in the litigants a well-founded fear of unfairness and impartiality.

Since the appointment of the Special Master, Petitioners have questioned his authority to effectuate his functions as ordered by the trial court. The trial court intended for the Special Master to be the "eyes and ears" of the court, and stated that the Special Master "would have the opportunity to get some aids to go and check what's going on at different facilities ... and oversee the care of these [patients]." The trial court also allowed, with its prior permission and proper notice to the parties, the use of "covert investigatory tactics." From this language, it is clear that the trial judge intended for the Special Master to have broad powers in carrying out his duties.

Under these guidelines from the trial court, the Special Master initially sought to interview Petitioners, with counsel present, to gather the necessary information. In response, Petitioners challenged the Special Master's authority to conduct such interviews and set the matter for a hearing before the trial judge. During that hearing, the trial court allowed Zumpano to proceed accordingly, and commended Zumpano's efforts to gather information from the parties rather than proceed blindly in his efforts. Thereafter, Pasteur challenged the retention of Zumpano's firm and investigators, almost seven weeks after receiving full disclosure and consenting to the Special Master's retention. Finally, Petitioners challenged Zumpano's Interim Application for Fees alleging that Zumpano made improper and impartial statements in his attempt to keep the trial court informed of his progress in the matter.

We do not find that the Special Master's statements rise to the level of bias sufficient to create a reasonable fear in Petitioners that they will not receive a fair and impartial trial. The requirements for disqualification were established, in part, to prevent the process from being abused by one party for purposes of delay, and to prevent judge and master shopping, unrelated to the fairness and impropriety of the proceeding. See Livingston, 441 So.2d at 1086; Crespo v. Crespo, 762 So.2d 568, 570 (Fla. 3d DCA 2000). At a minimum, as the "eyes and ears" of the court, the Special Master informed the trial court of what it would have encountered in the Special Master's absence. Ultimately, the trial court observed:

It's been the [Petitioners] who have tried after initially agreeing to everything, tried everything they could to stop this. . . . I've never seen such a flood of paper in 25 years of practice, and six years — five years on the bench.

Petitioners claim that Zumpano's statements in various communications with the trial court were improper and demonstrated a bias towards them. Yet, there is no evidence that Zumpano's remarks were of a "specific and personalized nature" sufficient to warrant disqualification. Valdes-Fauli, 903 So.2d at 218 (finding...