Order Denying Motion to Dismiss under Florida’s Notice of Intent Statute Reviewable by Certiorari

September 20, 2024

Florida’s Third District Court of Appeal recently exercised its discretionary jurisdiction and granted review of an order denying a carrier’s motion to dismiss under Florida’s statute requiring notice of an intent to initiate litigation.  In Citizens Prop. Ins. Corp. v. Walden, No. 3D24-196, 2024 WL 4031549 (Fla. 3d DCA Sept. 4, 2024), the Third District granted the carrier’s petition for writ of certiorari and quashed the order.

As a condition precedent to filing a lawsuit against a property insurance carrier, section 627.70152, Fla. Stat. (“the NOI Statute”) requires an insured to provide the Florida Department of Financial Services with notice of its intent to initiate litigation (“NOI”). In Walden, the insured filed an action for declaratory relief against its carrier, Citizens Property Insurance Corporation. The lawsuit was filed after the NOI Statute went into effect on July 1, 2021. The insured sought a declaration as to whether the NOI Statute applied to actions for declaratory relief, as well as a declaration regarding the interpretation of the carriers’ Managed Repair Contractor Network Program Endorsement. 

The complaint alleged that the insured had complied with all conditions precedent to suit. However, the insured did not provide the Department of Financial Services with a NOI before filing suit against the carrier. The carrier moved to dismiss due to the insured’s failure to comply with the NOI Statute. There was no dispute that the insured failed to provide a NOI. Nevertheless, the trial court denied the motion to dismiss on the grounds that the pre-suit notice requirements did not apply to a lawsuit seeking declaratory relief. 

The carrier sought review of the order via a petition for writ of certiorari. The standard for certiorari is exceedingly high.  In order to invoke the appellate court’s discretionary jurisdiction and convince the appellate court to review, the carrier was required to demonstrate to the appellate court that (1), there was a departure from the essential requirements of the law, (2) the departure would result in a material injury for the remainder of the case, (3) and that the departure cannot be corrected on a post-judgment appeal. The Third District Court of Appeal granted certiorari and quashed the order denying the motion to dismiss. The court reasoned that the pre-suit requirements of the NOI Statute were analogous to the pre-suit requirements of Florida’s medical malpractice statute and noted that Florida appellate courts have often granted certiorari review in situations where the plaintiff failed to follow pre-suit procedures in medical malpractice cases. The court further explained that the NOI Statute’s pre-suit notice requirement could not be meaningfully enforced on a post-judgment appeal because the purpose of providing pre-suit notice is to prevent the premature filing of a lawsuit.

In finding that the trial court’s denial of the motion to dismiss departed from the essential requirements of the law, the appellate court noted that there was no dispute that the insured failed to provide a NOI. However, the court declined to directly answer the question of whether the NOI Statute applied to declaratory judgment actions. Instead, the court concluded that the NOI Statute applied because the claim for declaratory relief regarding the Managed Repair Contractor Network Program Endorsement was a “thinly veiled” claim for breach of contract arising from the carrier’s alleged failure to make a sufficient payment on the claim. 

Notably, Walden is the first appellate court decision in Florida granting review of an order denying a carrier’s motion to dismiss for failure to comply with the NOI Statute’s pre-suit notice requirements via a petition for a writ of certiorari.  It remains to be seen whether Florida’s other district courts of appeal will follow suit or decline to grant review. 

For any questions about this blog, please contact Jamal McBroom or Vincent Fernandez.