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.
An Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-15825, Beatrice Butchko, Judge.
& 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
Herssein Law Group, and Reuven Herssein; Beighley, Myrick,
Udell & Lynne, P.A., and Maury L. Udell, for respondents.
SUAREZ, LAGOA and SCALES, JJ.
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.
AND RELEVANT BACKGROUND
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.
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.
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.
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.
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. Claimant's Case was dismissed on
June 30, 2015.
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
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