State Farm Mutual Automobile Insurance Company v. K.A.W.

575 So.2d 630 (1991)

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Nature of the Case

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Facts

David Wilkerson was driving a rental car with his wife and infant daughter as passengers when it was struck by another car. The Wilkersons retained the law firm of Sheldon J. Schlesinger, P.A. (Schlesinger firm) and filed suit against the driver and owner of the other vehicle and others for injuries. David Wilkerson was driving a rental car with his wife and infant daughter when it was struck by another car. The Wilkersons retained the law firm of Sheldon J. Schlesinger, P.A. (Schlesinger firm) and filed suit against the driver and owner of the other vehicle and others for injuries suffered by the three of them in the accident. They sued State Farm (D), the Wilkersons' insurer, for uninsured motorist coverage. The Wilkersons also filed a separate malpractice action against various health care providers for alleged negligent treatment of their daughter after the accident. The Schlesinger firm represented the Wilkersons in the malpractice action. New defendants were added including Interstate Fire and Casualty Company and Continental Casualty Company, which had issued uninsured motorist insurance to Wilkerson's employer. It was determined that David Wilkerson's negligence may have contributed to the automobile accident. Thereupon, David Wilkerson discharged the Schlesinger firm as his counsel in the personal injury action and retained a former member of the Schlesinger firm as new counsel. Mrs. Wilkerson and her daughter filed a second amended complaint in that action, adding David Wilkerson as a defendant. The Schlesinger firm continued to represent Mrs. Wilkerson and the daughter in that action. Mr. Wilkerson consented to be sued up to the limits of his insurance coverage. The firm also continued to represent all three Wilkersons in the medical malpractice action. Ds filed motions seeking the disqualification of the Schlesinger firm in the personal injury action. David Wilkerson filed an affidavit stating that he did not consider anything he discussed with Sheldon Schlesinger privileged because he had disclosed everything in his deposition and he did not feel that Schlesinger's representation of his wife and daughter disadvantaged him in any way. Mrs. Wilkerson also submitted an affidavit in which she stated that she and her daughter would be prejudiced if the Schlesinger firm were required to withdraw. The trial court refused to disqualify the firm, finding that D lacked standing to request disqualification because of David Wilkerson's consent to the firm's representation of his wife and child. It also held that Ds failed to show they would be prejudiced or that the continued representation would interfere with the fair and impartial administration of justice. The District Court of Appeal denied Ds' petitions for writ of certiorari, finding no proof of substantial prejudice or circumstances calling into question the fair and efficient administration of justice. Ds appealed.