Third District Court Of Appeal Joins Debate Over Retroactive Application Of Florida Statute 627.70152's Presuit Notice Provision

• Published date: 29 February 2024
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Financial Services, Trials & Appeals & Compensation
• Law Firm: Butler Weihmuller Katz Craig LLP
• Author: Justine Roof and Vincent Fernandez

On February 14, 2024, Florida's Third District Court of Appeal, in Fernando Cantens and Ana Marie Cantens v. Certain Underwriters at Lloyd's London, No. 3D22-0917 (Fla. 3d DCA Feb. 13, 2024), joined Florida's Fourth District Court of Appeal, in Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089 (Fla. 4^th DCA 2023), holding that the pre-suit notice requirement of section 627.70152, Florida Statutes are procedural in nature and a clear legislative intent exists that these requirements apply retroactively to policies in effect before the effective date of the statute.

Section 627.70152, went into effect on 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 Cole, the Fourth District Court of Appeal was the first appellate court that addressed whether this pre-suit notice requirement applied retroactively to policies in existence prior to the effective date of July 1, 2021. In that case, the insured analogized the pre-suit notice requirement in section 627.70152 to a similar pre-suit notice provision under the Florida Motor Vehicle No-Fault Law, section 627.736(10), Florida Statutes. Specifically, the insured relied on Menendez v. Progressive Express Insurance Co., Inc., 35 So. 3d 873, 877 (Fla. 2010), which held that the retroactive application of the pre-suit notice provision in section 627.736 was unconstitutional. The Cole court distinguished Menendez, and explained that it is clear from the face of section 627.70152 that the pre-suit notice provision is procedural, and thus, it can be applied retroactively. For an analysis of Cole please check out our previous blog: A Matter Of Means And Methods: Florida Appellate Court Upholds Retroactive Presuit Notice Requirement, May 3, 2023.

After Cole, the Sixth District Court of Appeal in Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023), reached the opposite result and held the pre-suit notice requirement of section 627.70152 were substantive in nature, making the retroactive application of those requirement to policies in effect before the effective date of the statute unconstitutional. The Hughes Court certified conflict with Cole. See Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023) (holding the statute does not apply to policies entered into before its effective date...