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United Services Automobile Association v. Law Offices of Herssein & Herssein, P.A.

Florida Court of Appeals, Third District

December 13, 2017

United Services Automobile Association, et al., Petitioners,
v.
Law Offices of Herssein and Herssein, P.A., etc., et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          3D17-1457 & 3D17-1500: Writs of Certiorari to the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

         3D17-1527: An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 15-15825, Beatrice Butchko, Judge.

          Shutts & Bowen LLP, and Suzanne Y. Labrit (Tampa), Frank A. Zacherl and Patrick G. Brugger; Law Offices of Charles M-P George, and Charles M-P George; Wadsworth Law, LLP, and Christopher W. Wadsworth and Katya H. Rehders, for petitioners.

          Herssein Law Group, and Reuven Herssein; Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for respondents.

          Before SUAREZ, LAGOA and SCALES, JJ.

          SCALES, J.

         United Services Automobile Association ("USAA"), the defendant/counter-plaintiff below, and non-party the Wadsworth Huott, LLP law firm ("Wadsworth"), each filed a certiorari petition with this Court seeking to quash trial court discovery orders compelling petitioners to disclose information protected by Florida's attorney-client privilege. We consolidated the petitions, and grant them both because, under the unique facts of this case, the implied waiver of the privilege asserted by respondent, Law Offices of Herssein & Herssein, P.A. ("Herssein"), is inapplicable.

         FACTS AND RELEVANT BACKGROUND

         In July 2008, USAA entered into a legal services contract with Herssein whereby Herssein agreed to defend USAA, USAA's affiliates and USAA's insureds. As relevant here, Herssein agreed to defend liability claims made against homeowners insured by USAA.[1]

         In 2011, a claimant sustained personal injuries when the claimant fell after an encounter with dogs owned by Colleen Brennan, a USAA insured. The claimant made a pre-suit demand for the $100, 000 policy limit of Brennan's insurance policy. USAA accepted the demand and tendered its check for the policy limits. Rather than cashing USAA's settlement check, the claimant, in March 2013, filed a personal injury action against Brennan and others in the Palm Beach County Circuit Court ("Claimant's Case"). Pursuant to the 2008 legal services contract, USAA appointed Herssein to defend Brennan in Claimant's Case.

         Herssein did not seek to enforce USAA's settlement agreement with the claimant; instead, in May 2013, Herssein withdrew the pre-suit policy limit tender. During the course of the ensuing litigation, in October 2013, the claimant served Brennan with a proposal for settlement, again offering to settle the claimant's claim for Brennan's policy limits. Following Herssein's advice, Brennan rejected the claimant's renewed policy-limit demand, and served the claimant with a $65, 000 counter-proposal for settlement, which the claimant rejected.

         In August 2014, the trial court in Claimant's Case entered a partial summary judgment for the claimant, finding Brennan was strictly liable for the claimant's personal injuries. Sometime later, Brennan hired a separate lawyer, Stephen Maher, who, on February 23, 2015, advised USAA in a letter that Brennan would pursue a bad faith action against USAA, and a malpractice action against Herssein, if Brennan was exposed to a judgment in Claimant's Case in excess of Brennan's $100, 000 policy limits. Noting the ensuing conflict of interest created by Mr. Maher's February 23, 2015 letter, Herssein immediately withdrew as Brennan's counsel in Claimant's Case.

         USAA then appointed Wadsworth to succeed Herssein in representing Brennan in Claimant's Case, which went to mediation on May 19, 2015. At the mediation, USAA was represented by David Lichter, one of USAA's in-house lawyers, and outside bad faith counsel, Frank Zacherl. Wadsworth and Brennan's own private counsel, Fred Cunningham, also attended the mediation conference on behalf of Brennan. Claimant's Case was settled at this mediation for an amount in excess of USAA's policy limits.[2] Claimant's Case was dismissed on June 30, 2015.

         Shortly after the mediation, settlement and dismissal of Claimant's Case, on July 1, 2015, USAA purported to terminate its legal services agreement with Herssein, and, two weeks later, on July 13, 2015, Herssein brought the instant lawsuit against USAA in the Miami-Dade Circuit Court. Herssein generally alleges that USAA violated its legal services agreement with Herssein by, inter alia, failing to appoint Herssein to a sufficient number of PIP defense cases. Herssein's lawsuit seeks in excess of $20, 000, 000 in damages.

          In February 2017, USAA filed a counterclaim against Herssein alleging, in one of the counterclaim's five counts, that USAA suffered damages as a result of Herssein's allegedly negligent handling of Claimant's Case. On March 7, 2017, Herssein propounded interrogatories on USAA regarding USAA's ...


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