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Cary v. Lumbermens Mutual Casualty Co./Kemper Insurance Co.

Court of Workers Compensation of Montana

November 7, 1994

BOBI JO CARY Petitioner



         The matter under consideration is the respondent's Motion to Disqualify Opposing Counsel. The moving parties, Buttrey Food and Drug (Buttrey) and its insurer, Lumbermens Mutual Casualty Company (Lumbermens), request the Court to order the disqualification of petitioner's attorney, Mr. J. David Slovak (Slovak), because of his past representation of both Buttrey and Lumbermens. The matter has been fully briefed. The parties were offered an opportunity for a hearing but agreed that a hearing is unnecessary.

         Factual Background

         Movants, as well as Slovak, have presented affidavits and information which show that Slovak personally defended three workers' compensation cases on behalf of Buttrey during his association with the law firm of Ugrin, Alexander, Zadick and Slovak. Slovak's former law firm also represented the moving parties in ten other workers' compensation and personal injury matters. In early January 1994, Slovak associated with Tom L. Lewis, P.C. Since then he has represented several claimant's in workers' compensation litigation.

         In this case Slovak represents Bobi Jo Cary (Cary). According to the petition, Cary injured her back on July 17, 1992, while working at Buttrey. Her claim for compensation was accepted and the insurer thereafter paid temporary total disability benefits. However, the petition alleges that the insurer improperly terminated those benefits and that it has refused to pay for certain medical treatment. The petition also alleges that the insurer acted unreasonably and asks that a penalty be awarded.

         Buttrey and Lumbermens have presented no information indicating that Slovak ever represented either of them with regard to the Cary claim, or that they ever consulted with him or provided him with information concerning the claim. They have also failed to show that any of the facts at issue in this case were at issue in any other cases handled by Slovak or his old law firm. As to the penalty issue, Slovak provides the following assurance:

At the pretrial conference, the Court requested that the basis for the penalty request in this case be provided in the Petitioner's Response with specificity. The basis is the Respondents' election to terminate certain compensation and medical benefits premised on their construction of § 39-71-407(5), MCA (1991). The Respondents contend that Petitioner sustained a non-work-related injury in January, 1994, and that as a result of that alleged occurrence, liability for continuing total disability/total rehabilitation benefits and medical benefits has been terminated. See, Respondents' Response to Petition, p.1, ¶ 2 and Scott S. Fitzpatrick's deposition, p.57 (Exhibit B). The facts of this claim are unique to themselves and give rise to the dispositive issue of Petitioner's entitlement to continuing compensation and medical benefits, and the collateral issue of a penalty as a result of the Respondents' application of § 39-71-407(5), MCA (1991) and ultimate election to terminate and deny benefits. The Court's resolution of the penalty issue will necessarily hinge on the evidence, both factual and medical, unique to this specific claim alone. That is, did Petitioner Cary suffer a non-work-related injury that terminates the Respondents' liability, and is the Respondents' decision to terminate liability reasonable? The penalty issue is straightforward and does not rest on issues of past business practices or established "claim philosophy." The issue is fact specific to this claim.

(Petitioner's Response in Opposition of Motion to Disqualify at 4, emphasis added.)


         This matter involves an application of Rule 1.9 of the Montana Rules of Professional Conduct. Rule 1.9 provides:


         A lawyer who has formerly represented a client in a matter shall not thereafter:

(a)represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b)use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has ...

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