Marcos v. Daniel Guerrier et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO WITHDRAW APPEARANCE NO. 146.00

The law firm of Halloran & Sage, LLP (hereinafter referred to as the “Firm”), counsel for Mr. Edguardo Ramirez in the above-captioned action, has moved for permission to withdraw its appearance on behalf of this defendant.   This case is a personal injury action in which the plaintiff alleges that he sustained serious and disabling injuries in a chain reaction multi-vehicle accident which occurred on I–95 in Stamford in October of 2011.   The Firm states in its motion dated November 13, 2013 that it was originally retained by Mr. Ramirez' insurer, National Continental Insurance Company (“NCIC”), to defend Mr. Ramirez in this action.

The Firm has submitted to the court a letter from NCIC dated August 20, 2013 verifying that NCIC received a declaratory judgment in its favor from the U.S. District Court for the District of Massachusetts respecting NCIC's continuing duty to defend or indemnify Mr. Ramirez in this action.   The letter states that “the judgment entered in the declaratory judgment action” declared, inter alia, “that NCIC has no duty to defend or indemnify Mr. Ramirez with the personal injury action filed in Connecticut state court.”   The letter further advised Mr. Ramirez' counsel that NCIC had been representing Mr. Ramirez subject to a reservation of rights, and will no longer pay for any costs or fees incurred by Ramirez in the defense of the plaintiff's claims.   Thus, the Firm argues, continued representation in this matter without compensation by the defendant's insurer would cause a financial hardship for the Firm and it asks for permission to withdraw its appearance on his behalf.

The Firm argues also in support of its motion that after consultations with Mr. Ramirez and his personal counsel, that even if Mr. Ramirez were to pay for the Firm's services in this action, “professional considerations” other than compensation prevent the Firm from continuing to represent him.

The court heard argument on the motion on December 16, 2013, at which time Mr. Ramirez appeared and expressed his opposition.   Mr. Ramirez objected on the grounds that (1) he had not received notice of his insurer's declaratory judgment action and (2) because he does not have sufficient funds to retain substitute counsel if the Firm is permitted to withdraw its appearance on his behalf.   Although not expressly stated on the record, the court infers from Mr. Ramirez' statements that he believes he is aggrieved by not having had the opportunity to contest his insurer's declaratory judgment action in Massachusetts.

The court is sympathetic to Mr. Ramirez, but also sympathetic to Halloran & Sage, LLP. The court has found little guidance in Connecticut case law on the question presented by this case, but the authority that the court did find favors the attorneys seeking to withdraw.

In the case of Jablonski v. One Grand, LLC, J.D. of New Haven, D.N. NNH–CV–6005185–S (May 10, 2012, Silbert, J.) [54 Conn. L. Rptr. 14], for example, the court allowed counsel who had been retained by the party's insurer to withdraw where coverage and payment of counsel fees was denied by the insurer.   In Jablonksi, in contrast to the present case, the insured did not contest either the insurer's decision to deny coverage or its counsel's request for permission to withdraw.   Rather, it was a co-defendant of the insured party who objected to the motion for permission to withdraw.   The court, per Silbert, J., held that “[w]hen an attorney has been enlisted to serve as counsel for an insured whom the insurer subsequently determines to be ineligible for the attorney's services under the terms of the policy, and the insured neither offers to pay the attorney itself nor objects to the motion to withdraw, the attorney should be permitted to withdraw.”   In support of this holding, the court cites several cases from New York and Pennsylvania which are directly on point, including Swedloff v. Phila.   Trans.  Co. et al., 409 Pa. 382, 187 A.2d 152 (1963), Schumm v. Long Is. Light Co., 56 Misc.2d 913, 290 N.Y.S.2d 423 (1968), and Brown v. Pennsylvania Railroad, 435 Pa. 84, 255 A.2d 554 (1969).

The court in Swedloff, supra, at 385, stated that “[w]e believe that sometimes too little consideration is given to the rights and privileges of an attorney at law to represent clients of his choice and to terminate a lawyer-client representation when he desires, provided it will not unjustly prejudice the rights of his client.   Permitting counsel's withdrawal at the direction of the Surety Company in no way prejudices the insured (Swedloff) with regard to the question of coverage.”

In the present case, the court notes that the Firm received the letter in late August of 2013 and did not immediately seek to withdraw.   The court finds that the Firm conferred with Mr. Ramirez and his personal counsel after receiving the insurer's letter to discuss continued representation, but was unable to come to terms with him on a new attorney-client relationship.   The court also notes that the trial date in this action is scheduled for June of 2014, which means that Mr. Ramirez has time to retain new counsel if he chooses to do so, or possibly challenge the District Court's ruling as to the denial of coverage.   The court understands that Mr. Ramirez may be prejudiced by the court's decision if he is unable to retain new counsel to represent him, but the court must also consider the hardship imposed on the Firm by requiring it to continue in these circumstances.   The court also notes the Firm's statement that it is unwilling to continue to represent Mr. Ramirez for reasons other than compensation.

Therefore, for the reasons set forth above, the court finds that it would be inequitable and improper to require the Firm to continue to represent Mr. Ramirez in this matter, and grants the Motion to Withdraw.

It is so ordered.

Anthony D. Truglia, Jr., J.

Truglia, Anthony D., J.