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A Matter of Means and Methods: Florida Appellate Court Upholds Retroactive Presuit Notice Requirement

May 3, 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 Menendez was distinguishable and that it was clear from the face of section 627.70152 that it was a procedural statute, and thus could be applied retroactively. 

On appeal, the district court analyzed the opinions from the Florida Supreme Court, including State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995), Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994), and Have Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991), to delineate the differences between a substantive statute and a procedural statute.  Summarily, a substantive law prescribes duties and rights as opposed to a procedural law which pertains to the means and methods to apply and enforce those duties and rights.  A substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but a procedural or remedial statute will operate retrospectively. 

The court then turned to the issue of whether section 627.70152 would apply retroactively to policies in existence prior to the effective date of July 1, 2021.  The court applied a two-part test.  The test first requires the Court to determine whether the Legislature intended for the statute to apply retroactively.  Then, if legislative intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles (in this case, whether retroactive application would attach new legal consequences to events completed prior to enactment). Cole (quoting Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999)).

In applying this two-part test outlined in Menendez, the court disagreed with the insured’s position that the statute would not apply retroactively to an insurance policy already existing at the time of enactment.  The court examined the language of Section 627.70152(1), Florida Statutes (2021), which begins by stating that “[t]his section applies exclusively to all suits…arising under a residential or commercial property insurance policy…”  The court emphasized the fact that the statute “imposes a presuit notice requirement as a condition precedent to filing suit” and requires a court to “dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by [the statute].” 

The court further held that “[if] the legislature had intended to limit this presuit notice provision to policies issued after the statute’s effective date, the legislature would have included language stating so.”  Based upon the foregoing, the court held that the presuit notice requirements of Section 627.70152, Florida Statutes, are retroactive, procedural, and apply to insurance policies existing at the time the law was enacted (July 1, 2021).

The court also disagreed with the insured’s argument that, because Section 627.70152 changed the manner in which attorney’s fees are awarded, the statute impaired substantive rights.  The court found that the subsection related to attorney’s fees was not implicated in the case at bar.  Nevertheless, the court held that, even if attorney’s fees were at issue, just because the right to attorney’s fees is substantive and cannot be applied retroactively does not mean that the presuit notice provision – in a separate subsection – also cannot be applied retroactively.

The Fourth District Court of Appeal has jurisdiction over Florida’s Fifteenth, Seventeenth, and Nineteenth Judicial Circuits (trial courts), which are composed of Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties.

If you have any questions, please contact Shaheen Nouri or Vincent Fernandez.