United States District Court, D. Kansas
STEVEN VOLKSWAGEN, INC. d/b/a Steven Infiniti, Plaintiff,
ZURICH AMERICAN INSURANCE COMPANY, Defendant,
MEMORANDUM AND ORDER
D. MITCHELL U.S. MAGISTRATE JUDGE.
matter comes before the court on Defendant's Motion to
Disqualify Greg Andersen (ECF No. 73), who is Plaintiff
Steven Volkswagen, Inc.'s (“Steven”) in-house
counsel and one of its attorneys of record. Defendant Zurich
American Insurance Company (“Zurich”) asks the
court to disqualify Mr. Andersen on the grounds that he is a
fact witness. Steven opposes the motion, arguing that Mr.
Andersen's only possible factual testimony concerns the
fact that he handwrote the insurance claim at issue and faxed
it to Zurich, and that counsel for Zurich elicited the
remainder of his deposition testimony about his opinions on
the insurance claim given his status as an attorney, not a
fact witness. The present record does not establish that Mr.
Andersen is a necessary fact witness. Zurich's motion is
therefore denied without prejudice.
is an automobile dealership that made an insurance claim to
Zurich for damages to its vehicle inventory caused by a
windstorm in 2019. Steven claims Zurich breached its
insurance policy and the implied covenant of good faith by
using an improper method to adjust Steven's claims. In
particular, Steven contends that Zurich should have adjusted
the 2019 claim using the same methodology it used to adjust a
prior wind-damage claim in 2018. This case concerns the
extent of the vehicle damage and the proper method under the
policy for adjusting the claims.
Andersen is Steven's in-house counsel. He was responsible
for making the insurance claim that is the subject of this
lawsuit. Steven disclosed Mr. Anderson in its Fed.R.Civ.P.
26(a)(1) initial disclosures as an individual likely to have
discoverable information “of the claims for damage to
the inventory of Volkswagen and Infiniti.” (ECF No.
74-1, at 1.) He entered his appearance as counsel of record
on October 21, 2019. (ECF No. 52.)
October 31, Zurich deposed Mr. Andersen. He testified-in
response to questioning from Zurich's counsel-about
Steven's 2019 wind-damage claim and the prior 2018
wind-damage claim. He also testified about his understanding
of federal safety regulations and whether Zurich's
proposed repairs would comply with regulations and vehicle
asks the court to disqualify Mr. Andersen because he is
likely to be a necessary fact witness at trial. Steven
opposes the motion on the basis that Mr. Andersen's
testimony relates only to submitting the insurance claim and
that Steven believes the parties will ultimately stipulate
that Mr. Andersen was the individual who filed the initial
faced with a motion to disqualify counsel, the court must
consider both the local rules of the court in which the
attorney appears, and “because motions to disqualify
counsel in federal proceedings are substantive motions
affecting the rights of the parties, they are decided by
applying standards developed under federal law.”
United States v. Stiger, 413 F.3d 1185, 1195 (10th
Cir. 2005) (overruled on other grounds) (citing Cole v.
Ruidoso Mun. Schools, 43 F.3d 1373, 1383 (10th Cir.
1994)). The court retains discretion to determine whether
disqualification is warranted, but it must be mindful that a
motion to disqualify can be used as a litigation strategy.
Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir.
1985). An ethical violation does not necessarily trigger
disqualification. Koch v. Koch Indus., 798 F.Supp.
1525, 1531 (D. Kan. 1992). Rather, the court must consider
whether disqualification serves the purpose behind the rule
in question. Id.
district has adopted the Kansas Rules of Professional Conduct
(“KRPC”). See D. Kan. Rule 83.6.1(a)
(stating that the Kansas rules apply “except as
otherwise provided by specific rule of this court”).
KRPC 3.7 prohibits a lawyer from acting “as an advocate
at a trial in which the lawyer is likely to be a necessary
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
KRPC 3.7. The rule's purpose is to prevent jury confusion
if a lawyer were to appear in a dual role as an advocate and
a witness. Id. at cmt. 2. The rule applies to
advocacy at trial and but does not apply to a lawyer's
ability to perform pretrial activities, except ...