Opinion
C.A. No. 99C-06-030 — JTV.
Submitted: December 10, 1999.
Decided: March 29, 2000.
Upon Consideration of Third Party Defendant's Motion To Strike the Appearance of Michael A. Pedicone, Esq. As Counsel For Louise Ford Pauley
Jeffrey M. Gentilotti, Esq., Wilmington, Delaware. Attorney for Defendant/Third Party Plaintiff Hartford Insurance Company.
Gregory A. Morris, Esq. Dover, Delaware and Timothy D. Junkin, Esq., Washington, D.C. Attorneys for Plaintiffs.
George H. Seitz, III, Esq., Wilmington, Delaware. Attorney for Defendants/Third Party Plaintiffs Kimberly A. Reinoehl, Delaware State Police, The State of Delaware Department of Public Safety and The State of Delaware.
Marc S. Casarino, Esq., Wilmington, Delaware. Attorney for Defendants/Third Party Plaintiffs Robert Hludzinski, R.R. Seaside, Inc., R.R. Bayside, Inc., R. R. Outlet Malls, and Charter Oak Group, Ltd.
Michael A. Pedicone, Esq., Wilmington, Delaware. Attorney for Third Party Defendant Alice L. Pauley.
Richard E. Poole, Esq., Wilmington, Delaware. Attorney for Third-Party Defendant Louise Ford Pauley, a/k/a Alice L. Pauley.
DENIED With Prejudice
ORDER
Upon consideration of the motion of third party defendant Louise Ford Pauley to strike the appearance of Michael A. Pedicone, Esquire, and the record in this case, it appears that:
1. This case arises out of an auto collision in which a vehicle operated by a Delaware State Police officer collided with a vehicle operated by the third party defendant, Louise Ford Pauley. The officer was responding to an alarm at a shopping outlet near Rehoboth Beach. The plaintiffs are the parents of a minor passenger in the Pauley vehicle who died as a result of the accident. The defendants are the officer, the Department of Public Safety, and others. They in turn added Ms. Pauley as a third party defendant. Ms. Pauley's liability insurer, Allstate Insurance Co., designated an attorney to represent her on the third party complaint. Ms. Pauley, who has claims for injuries which she and her two sons sustained, also retained an attorney of her choice to represent her in the litigation. She now brings this motion seeking to have the attorney appointed by Allstate removed so that she can be represented by the attorney she selected in all claims, for and against her. In support of her motion, Ms. Pauley expresses her desire to have her interests represented by a single law firm. She expresses her concern that she may be prejudiced if disagreements should arise between the attorney she selected and the attorney appointed by Allstate as to how the case should be litigated. Allstate opposes the motion based on the provisions of the insurance policy which give it the right to designate an attorney to represent Ms. Pauley in the defense of the third party claim. Because the policy expressly permits Allstate to designate an attorney to represent Ms. Pauley's interest in defending the third party claim, and because there does not appear to be any conflict of interest relating to that representation at this time, Ms. Pauley's motion is denied.
2. Ms. Pauley's policy contains the customary clause obligating Allstate to defend her in the event she is sued and giving Allstate the right to designate defense counsel. Ms. Pauley attempts to overcome this plain contractual language on the basis of a dissent contained in the Pennsylvania case of Burish v. Digon. However, the dissent was based upon a prior Pennsylvania case which the writer of the dissent believed was wrongly decided to begin with. The dissent does not serve as any persuasive support for Ms. Pauley's motion in this case.
Pa. Supr., 206 A.2d 497 (1965).
3. Ms. Pauley also offers in support of her motion the disciplinary case of Matter of Tos. In that case the attorney was disciplined for violating the Rules of Professional Conduct because he failed to withdraw from representing a client after the client discharged him. However, the comments to that disciplinary rule specifically recognize that there may be instances where applicable law may limit a client's ability to discharge an attorney. This is one of those instances.
Del. Supr., 576 A.2d 607 (1990).
Disciplinary Rule 1.16(a)(3).
4. Therefore, at this point Ms. Pauley is bound by the plain and unambiguous language of the policy. However, some comments made by the attorney appointed by Allstate which are part of his response to the motion need to be addressed. His response included a copy of a letter dated October 14, 1999, which he wrote to the attorney retained by Ms. Pauley. In the letter the attorney explains why Allstate insists that he defend the suit against Ms. Pauley while the attorney which she retained presses her affirmative claims. In relevant part the letter states as follows:
Hallowell v. State Farm, Del. Supr., 443 A.2d 925 (1982).
The reason for this is the potential for conflict between a defense position and affirmative claim position and the actions which the attorney representing each of those positions must take in the best interest of his client. If any certain action should be taken to further one position but that action would adversely affect the other position, then an irreconcilable conflict occurs and if there is one attorney representing both positions, and he chooses one action, then he is acting adverse to his clients best interest for one of the positions. Alternatively, when there are separate attorneys each can act in the best interest of his client for that position which he is representing.
While general comments are often best tested in specific factual situations, it seems to the Court that these comments are very unpersuasive as a reason to deny the plaintiffs motion. If anything, the comments are a reason for granting the motion. In the Court's view, generally speaking it certainly is not in a party's best interest to have antagonistic positions advanced for that party in a case which will be heard by a jury. Counsel should be on notice that if conflicts do develop between Allstate and Ms. Pauley, Allstate runs the risk that it may lose its right to designate counsel and control the defense of the third party claim.
Maryland Casualty Company v. Peppers, Ill. Supr., 355 N.E.2d 24 (1976); Roussos v. Allstate Insurance Co., Md. Ct. Sp. App., 655 A.2d 40 (1995).
5. Issues relating to the joint participation of the attorneys for Ms. Pauley at trial or any earlier stage of the proceeding may be addressed to the Court as they arise.
6. An answer should be filed on behalf of the third party defendant within 25 days of the date of this order. Any counterclaim or other affirmative claim may be set forth in a separate pleading in lieu of being included with the answer.
THEREFORE, the motion to strike the appearance of counsel is denied without prejudice.
IT IS SO ORDERED.