By: Schyeler S. Gilman
49 Fla. L. Weekly D360, –So.3d –, 2024 WL 591695 (Fla. 3d DCA Feb. 14, 2024)
On February 14, 2024, Florida’s Third District Court of Appeal ruled that Fla. Stat. §627.70152(3), requiring a written pre-suit notice of intent to litigate be submitted to the Department of Financial Services, applies retroactively to insurance policies that pre-date the statute. This makes three courts of appeal that have ruled on the issue, with the Third and Fourth finding retroactive application proper and the Sixth disagreeing. (See, Herman Cole v. Universal Property & Casualty Insurance Company, 363 So. 3d 1089 (Fla. 4th DCA 2023 & Rebecca Hughes v. Universal Property & Casualty Insurance Company, No. 6D23-296, –So.3d –, 2023 WL 8108671 (Fla. 6th DCA Nov. 22, 2023)).
Florida Statute §627.70152 provides that “[a]s a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department.” If the statute is not complied with then the trial court is required to dismiss the suit without prejudice.
Following the dismissal of their breach-of-contract action against their insurance company, the Cantens appealed, arguing that the trial court erred in its decision to apply Fla. Stat. §627.70152 to their insurance policy, which predated the statute. The Third District Court of Appeal affirmed the lower court’s decision holding that the statute was procedural rather than substantive, and that the intent of the legislature was to ensure the statute applied to “all suits arising under a residential or commercial property insurance policy.”
The general rule is that procedural statutes operate retrospectively and may be applied immediately to pending cases. When considering whether a statute applies retroactively, courts apply a two-factor test: (1) whether the statute expresses an intent that it applies retroactively; and, if so, (2) whether retroactive application is constitutional. Ultimately, the Third District aligned with the Fourth District’s prior ruling in that the statute’s application to “all suits” was an express statement by the legislature to apply the statute retroactively.
The Third District Court of Appeal distinguished the Cantens’ case from the Florida Supreme Court’s decision in Menendez v. Progressive Express Insurance Co., Inc., 35 So. 3d 873, 877 (Fla. 2010), which assessed the retroactivity of a similar notice provision under the Florida Motor Vehicle No-Fault Law. While the statute at issue Menendez also included all-encompassing language, the distinguishing factor lied with constitutionality. The Motor Vehicle Law notice requirement created various obligations and burdens that were substantive and therefore could only be applied prospectively, whereas Fla. Stat. §627.70152 imposes only a procedural delay that does not impact any substantive right of the insured.
