
    MORRISON ASSURANCE COMPANY, Petitioner, v. UNITED STATES FIRE INSURANCE COMPANY, Respondent.
    No. BR-226.
    District Court of Appeal of Florida, First District.
    July 24, 1987.
    Rehearing Denied Dec. 15, 1987.
    James A. Hightower, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for petitioner.
    Dennis J. Wall, Orlando, and S. William Fuller, Jr., of Fuller & Johnson, Tallahassee, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of certiorari to review the decision of the Circuit Court for Escambia County granting the motion of United States Fire Insurance Company (respondent herein) to disqualify counsel of record for Morrison Assurance Company (petitioner herein) and partially granting respondent’s motion to compel discovery.

Briefly, the facts are as follows. Plaintiff/petitioner, Morrison Assurance Company, is an excess carrier who has brought a bad faith action against defendant/respondent, U.S. Fire Insurance Company, for failure to settle a personal injury case within its policy limits of $500,000. The underlying case, Mills v. Daniel Ornamental Iron Company, was tried by jury in Escambia County and resulted in a judgment in the amount of $863,286.56. Plaintiff Morrison in the instant case is being represented by attorneys Lefferts Mabie and James A. Hightower of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell. Plaintiff Mills in the underlying case was also represented by the Levin, Warfield firm, through Lefferts Mabie and Daniel Scarritt. Scarritt has since retired from the Levin, Warfield firm.

U.S. Fire filed its first motion to disqualify Morrison’s counsel on the basis of D.R. 5-101(B) and 5-102(A) and (B). Judge Blanchard denied the motion and this court denied U.S. Fire’s petition for writ of certiorari. (Case No. BM-297). Subsequent to the first motion to disqualify the counsel, Judge Blanchard recused himself from the case, and discovery was taken. As a result of Morrison’s answers to interrogatories, in which Morrison listed both Scarritt and Mabie as two of five persons with knowledge of Morrison’s allegations, and of the depositions of Mabie and Scarritt, U.S. Fire filed a second motion to disqualify. Hearing was held at which Judge Geeker stated that the motion would be granted if U.S. Fire could affirmatively represent that it would call Mr. Mabie as a witness at trial. After receiving such notification from the respondent, the court entered the order granting the motion to disqualify. Morrison then filed the instant petition for writ of certiorari.

Also at issue is the order partially granting U.S. Fire’s motion to compel production of discovery, and ordering Morrison to produce all of its Florida files in which it was either a primary or excess carrier for the years 1980 through 1982.

The order of the trial court granting the motion to disqualify is in part as follows:

[T]he Court received the affirmative representation by counsel for United States Fire Insurance Company that it would call Lefferts Mabie, Esq. as a witness. The Court affirmatively notes and finds there is no evidence of impropriety or wrongdoing by plaintiff’s counsel in undertaking representation of plaintiff. Mindful, however, of the teachings of Canon 9 and the desire to avoid the appearance of impropriety that could engender in these proceedings, the Court concludes disqualification of counsel is warranted. In having plaintiff’s counsel as a witness in this action, the attorney’s credibility as a witness could be questioned; consequently, prejudice could result to the client if the jury disbelieved his testimony or questioned his motives in the manner he testified. Thus, his effectiveness as an advocate for his client might be impaired.

We have reviewed the record before us, including the depositions of the attorney in question and find no basis for holding that the trial court abused its discretion in the order of disqualification, and that order is affirmed.

The order on discovery is also affirmed. The information elicited relates to practice in the insurance industry and is pertinent to the testimony of Morrison’s witness. We find no abuse of discretion on the part of the trial court in denying the motion for a protective order.

BOOTH and WENTWORTH, JJ., concur.

SMITH, C.J., dissents with written opinion.

SMITH, Chief Judge,

dissenting with opinion.

I would grant certiorari and quash the order disqualifying plaintiff’s counsel, and the order for production by Morrison of certain of its Florida claim files for the years 1980, 1981, and 1982.

First, there is no basis for concluding that the attorney, Lefferts Mabie, will be called as a witness by his client, Morrison. That this is not contemplated either by the client, Morrison, or its attorney, is clear from the record, and is further confirmed by the trial court’s finding that there is no evidence of impropriety or wrongdoing on the part of Mabie and his firm in undertaking this litigation.

Morrison has disclosed that it intends to use another attorney as an expert witness on the bad faith issue in this case, and in addition, should there be any need for it, attorney Scarritt, formerly a member of Mabie’s firm, is available to testify. According to Mabie’s deposition testimony, Scarritt had substantially more knowledge regarding evaluation and settlement negotiations in the case than did Mabie.

Secondly, although Mabie could conceivably be a witness in the case, since there is the possibility of him being called by appel-lee, there is no basis for concluding that Mabie is an indispensible witness, that is, that only Mabie could supply some information of crucial importance to either side.

As noted in Cazares v. Church of Scientology of California, Inc., 429 So.2d 348 (Fla. 5th DCA 1983), the Code of Professional Responsibility (now Rules of Professional Conduct; see rules regulating the Florida Bar, 494 So.2d 977,1021 (Fla.1986)), and the Disciplinary Rules derived therefrom, were “not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.” Id. at 350.

Under Cazares, and this court’s decision in Ray v. Stuckey, 491 So.2d 1211 (Fla. 1st DCA 1986), it was error for the trial court to order Mabie disqualified. The trial court’s reliance on the “appearance of impropriety” standard of Canon 9 is inappropriate, in my opinion, because it is not supported by facts indicating that Mabie is or may be called upon as a witness in the sense contemplated by the Code.

Finally, the trial court’s order for production of files was overbroad, burdensome and oppressive. Whether or not Morrison or other primary carriers follow the procedure of keeping the insured and the excess carrier informed of the status of the case and settlement negotiations is immaterial to the existence of a legal duty to do so. Furthermore, ample protection could have been afforded appellee by an order limiting admissibility of Morrison’s representative’s testimony as to Morrison’s practices in this regard to instances documented by files produced for inspection.  