The Main Event: Florida Supreme Court to Resolve District Court Split Over Retroactive Application of State’s NOI Statute

September 20, 2024

Tag-teaming with Florida’s Sixth District Court of Appeal, the Second District is also at odds with the Third and Fourth Districts on the issue of retroactive application of Florida’s litigation-intent statute.  In Buis v. Universal Property & Casualty Insurance Company, No. 2D2023-0655, 2024 WL 4096130 (Fla. 2d DCA Sept. 6, 2024), the Second District recently aligned with the Sixth District’s decision in Hughes v. Universal Property & Casualty Insurance Company, 374 So. 3d 900, 910 (Fla. 6th DCA 2023), review granted, No. SC2024-0025, 2024 WL 1714497 (Fla. Apr. 22, 2024), and held that the notice statute cannot apply retroactively to policies in effect prior to its effective date.

Florida’s NOI statute, enacted in June of 2021, “. . . applies exclusively to all suits not brought by an assignee arising under a residential or commercial property insurance policy, including . . . [those] issued by an eligible surplus lines insurer.”  Section 627.70152(1), Fla. Stat. (2021).  As a condition precedent to suing a property insurance carrier, the NOI statute requires an insured to provide the carrier with a formal notice of their intent to initiate litigation (“NOI”) through the proper filing channels of the Florida Department of Financial Services.  If an insured sues without filing a proper NOI with the Department, the statute requires Florida’s courts to dismiss the lawsuit without prejudice.

The NOI statute clearly applies to all property insurance lawsuits filed on or after the enactment. However, the continuing dispute between Florida’s courts has been whether the statute’s requirement to file an NOI applies retroactively in circumstances where an insurance policy was in effect prior to the statute’s effective date.  On this important point, Florida’s appellate courts disagree.

Florida’s Fourth District Court of Appeal in Cole v. Universal Property & Casualty Insurance Company, 363 So. 3d 1089 (Fla. 4th DCA 2023), was the first to rule on the issue of retroactivity.  The Fourth District held that the phrase “[the] section applies exclusively to all suits” was evidence of the legislature’s intent that the statute be applied retroactively, that the requirement to provide an NOI prior to filing suit was procedural in nature, which did not impair a vested right or create a new penalty, and could thus be applied retroactively. 

Following Cole, Florida’s federal courts have recognized that Cole represents the law of Florida, and have relied on the opinion to dismiss lawsuits where the insured failed to comply with the NOI statute.  See Pearson v. Scottsdale Ins. Co., No. 8:22-CV-1530-SDM-AEP, 2023 WL 4419725 (M.D. Fla. July 10, 2023); Jesus Rock Ministries, Inc., v. Scottsdale Insurance Company, No. 22-22895-CIV, 2023 WL 6975827 (S.D. Fla. Oct. 23, 2023); Botelho v. Indian Harbor Insurance Company, No. 24-80530-CIV-DIMITROULEAS (S.D. Fla. June 7, 2024); Peterson & Young v. Jewelers Mut. Ins. Co., No. 23-81253-CIV, 2024 WL 472292 (S.D. Fla. Feb. 7, 2024). 

Florida’s Sixth District Court of Appeal certified conflict with Cole in Hughes v. Universal Property & Casualty Insurance Company, 374 So. 3d 900, 910 (Fla. 6th DCA 2023).  In Hughes, the Sixth District held that the NOI statute cannot apply retroactively because it lacks clear legislative intent for retroactive application and is substantive in nature. 

Florida’s Third District Court of Appeal followed with its own decision that aligned with Cole in Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 13, 2024).  Cantens held that the NOI requirement of the statute is procedural in nature and that legislative intent for retroactive application exists.

Now, Florida’s Second District, in deciding Buis v. Universal Property & Casualty Insurance Company, has aligned with the Sixth District’s decision in Hughes.  In Buis, the insureds appealed the dismissal of their lawsuit against their carrier for failure to comply with the NOI Statute.  In reversing the dismissal, the Court in Buis made three points.  First, it did not find the phrase “all suits” in the statute to be evidence of the legislature’s intent that the statute be applied retroactively.  Second, the Court relied upon the effective date of the statute as evidence rebutting any legislative intent for retroactive application.  Third, the Court interpreted the phrase “[this] section applies exclusively to all suits not brought by an assignee” as the statute’s description of the type of plaintiff and lawsuit it applied to, not the timing of the policies governed by the statute.

The Buis Court aligned with Hughes and certified conflict with the Third District’s decision in Cantens and the Fourth District’s decision in Cole.  The Florida Supreme Court granted a review of the Hughes decision, with the championship belt up for grabs in the main event sometime in 2025.  Briefing on the merits is underway. 

Stay tuned!

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