Florida’s 4th DCA Decides Insurer’s Presuit Notice Requirement Is Procedural in Nature and Applies Retroactively

In a decision that continues to fuel the dispute between the plaintiff and defense bar, Florida’s Fourth District Court found that the presuit notice provision of section 627.70152 is procedural in nature and, as such, applies retroactively to policies in existence prior to the statute's effective date.
 
In Herman Cole v. Universal Property & Casualty Insurance Company, 2023 WL 3214643 (Fla. 4th DCA, May 3, 2023), the court was asked to determine whether the trial court wrongfully dismissed the plaintiff’s lawsuit for homeowners insurance benefits upon granting the defendant’s motion to dismiss for failure to comply with the presuit notice requirement established in section 627.70152. The Fourth District Court affirmed, finding that because the presuit notice requirement of section 627.70152 applies retroactively as a procedural provision, it applies to existing policies in effect at the time of enactment.

The appeal raised a substantive rights issue. The policyholder argued that the new presuit notice requirements should not apply retroactively since they specifically impair his substantive rights. Notably, the policyholder filed suit one month after section 627.70152 went into effect. The newly enacted statute required presuit notice of intent to initiate litigation as a condition precedent to filing suit. The policyholder did not comply with this notice requirement prior to filing the suit.

This issue of law is being closely watched by insurers and policyholders’ attorneys due to the potential impact on a number of pending cases. The Florida Supreme Court has never fully addressed the “retroactive” application of F.S. 627.70152, and the potential ramifications on cases filed after the notice requirement was implemented is a hotly contested issue throughout the state.

The court analyzed and discussed Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), which involved an amendment to a different statutory scheme—the PIP statute—often relied upon in support of the argument that the notice requirement is a substantive right and, thus, cannot be applied retroactively. 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. Ultimately, the Fourth District Court agreed with the defendant and ruled in favor of the insurer on the first issue presented, finding the legislature expressed a clear intent for the statute to apply retroactively. The statute, which went into effect on July 1, 2021, stated that this statute “applies exclusively to all suits ... arising under a residential or commercial property insurance policy....”

The court did not address the entitlement to attorney’s fees within statute, the second issue presented, because the decision on the first issue presented resolved the matter. Marshall Dennehey will continue to closely monitor the situation. Please contact us with any questions. 
 

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