A Matter Of Means And Methods: Florida Appellate Court Upholds Retroactive Presuit Notice Requirement

• Jurisdiction: Florida,United States
• Law Firm: Butler Weihmuller Katz Craig LLP
• Subject Matter: Finance and Banking, Insurance, Financial Services, Insurance Laws and Products
• Author: Shaheen Nouri and Vincent Fernandez
• Published date: 26 June 2023

The presuit notice requirements of section 627.70152, Florida Statutes, are procedural in nature and, therefore, apply retroactively to insurance policies existing at the time the law was enacted (July 1, 2021). Herman Cole v. Universal Prop. & Cas. Ins. Co., No. 4D22-1054 (Fla. 4th DCA May 3, 2023).

Florida's Fourth District Court of Appeal affirmed the trial court's dismissal of an insured's breach of contract action due to the insured's failure to file a formal notice of intent to initiate litigation against the carrier as required by the recent statute. The insured appealed the dismissal, claiming the new presuit notice requirement impaired his substantive rights under the insurance policy. The District Court found the trial court's dismissal was not an error, and the trial court "correctly determined that requiring enforcement of the legislatively enacted presuit notice requirements did not impair appellant's substantive rights[.]"

In Cole, the insured sued his homeowners' insurance carrier claiming breach of contract. The insured submitted his insurance claim prior to the effective date of section 627.70152, Florida Statutes (July 1, 2021). However, the insured did not sue his carrier until after July 1, 2021. As a condition precedent to filing a lawsuit against a carrier, this statute requires an insured to provide the Florida Department of Financial Services with notice of his/her intent to initiate litigation.

In response to the carrier's motion to dismiss, the insured argued that his case was analogous to Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010), involving an amendment to the Florida PIP statute which created several "problematic provisions," including the imposition of a penalty, changes that implicated attorney's fees, and imposed a presuit notice requirement. 35 So. 3d at 878. Menendez held that the entire amendment to the PIP statute, which in part included a statutory presuit notice requirement, was a substantive change that could not be applied retroactively to policies issued before the amendment's effective date.

The insured argued that section 627.70152, Florida Statutes, like the amendment to the PIP statute in Menendez, impaired his substantive rights by requiring that he provide presuit notice and by having a section which affected an insured's right to attorney's fees. The carrier argued the instant case was distinguishable from Menendez. The trial court granted the motion to dismiss and found that Menende...