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Zurich Insurance Company v. Knotts8/23/2001
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The facts of this case are almost identical to those in 155 North High. Ltd. v. Cincinnati Insurance Co., 650 N.E.2d 869 (Ohio 1995) except that the Ohio case was decided in the context of an appeal from an adverse judgment (which was reversed) whereas this case is decided in the context of an appeal from the grant of a pretrial writ.
[we find it obvious not only that Wiles's testimony was admissible, but also that it was clear that he "ought to be called as a witness on behalf of his client." Wiles had personal knowledge regarding the alleged acts of bad-faith claims handling. He was an active participant in dealings and negotiations beginning shortly after the fire and continuing up to the time the lawsuit was filed. He testified to conversations and actions taken by the insurance company. Thus, his testimony was necessary to prove his client's claims. Moreover, this was not a sudden development. Wiles had known early on that he was a key witness. This fact is attested to in his affidavit which was attached to appellant's memorandum contra Cincinnati's motion for summary judgment. . . . Id. at 872-73. See also General Mill Supply Co. v. SCA Services. Inc., 697 F.2d 704 (6th Cir. 1982).
Nor does Franklin's disqualification fall within the "undue hardship" exception to the rule of disqualification. As noted in Warrilow v. Norrell, 791 S.W.2d 515 (Tex. Ct. App. 1989), " his exception generally contemplates an attorney who has some expertise in a specialized area of the law such as patents, and the burden is on the attorney seeking to continue representation to prove distinctiveness." Id. at 520. Intimate familiarity with the case and mere increased expenses do not meet this standard. 155 North High. Ltd., supra, at 873-74. If bad faith litigation is a specialized area of the law, then Sitlinger, not Franklin, is the presumed specialist, since he was specifically retained to act as lead counsel in the bad faith case against Zurich. (Actually, considering Franklin's reputation as a skilled and successful litigator, it is more probable that Sitlinger was retained as lead counsel because Franklin knew he was "likely to be a necessary witness" and, thus, would be disqualified as counsel at some point during the litigation.)
An unfortunate consequence of the outcome of this appeal may be that Franklin is now precluded from testifying as a witness at trial even if subsequent events indicate that he "ought to be called as a witness on behalf of his client" either to prove the facts as he viewed them or to rebut a contrary version offered by Zurich's witnesses. 155 North High. Ltd., supra, at 872-73. Nevertheless, the Knottses prefer to have Franklin at counsel table rather than on the witness stand, and the majority of this Court has granted their wish. This case may prove the adage of "be careful what you ask for; you might get it."
Accordingly, I dissent.
Keller and Wintersheimer, JJ., join this dissenting opinion.
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