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Third District Court of Appeal Joins Debate Over Retroactive Application of Florida Statute 627.70152’s Presuit Notice Provision

February 21, 2024

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On February 14, 2024, Florida’s Third District Court of Appeal, in Fernando Cantens and Ana Marie Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 13, 2024), joined Florida’s Fourth District Court of Appeal, in Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089 (Fla. 4th DCA 2023), holding that the pre-suit notice requirement of section 627.70152, Florida Statutes are procedural in nature and a clear legislative intent exists that these requirements apply retroactively to policies in effect before the effective date of the statute. 

Section 627.70152, went into effect on 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 Cole, the Fourth District Court of Appeal was the first appellate court that addressed whether this pre-suit notice requirement applied retroactively to policies in existence prior to the effective date of July 1, 2021. In that case, the insured analogized the pre-suit notice requirement in section 627.70152 to a similar pre-suit notice provision under the Florida Motor Vehicle No-Fault Law, section 627.736(10), Florida Statutes. Specifically, the insured relied on Menendez v. Progressive Express Insurance Co., Inc., 35 So. 3d 873, 877 (Fla. 2010), which held that the retroactive application of the pre-suit notice provision in section 627.736 was unconstitutional. The Cole court distinguished Menendez, and explained that it is clear from the face of section 627.70152 that the pre-suit notice provision is procedural, and thus, it can be applied retroactively. For an analysis of Cole please check out our previous blog: A Matter Of Means And Methods: Florida Appellate Court Upholds Retroactive Presuit Notice Requirement, May 3, 2023.

After Cole, the Sixth District Court of Appeal in Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023), reached the opposite result and held the pre-suit notice requirement of section 627.70152 were substantive in nature, making the retroactive application of those requirement to policies in effect before the effective date of the statute unconstitutional. The Hughes Court certified conflict with Cole. See Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023) (holding the statute does not apply to policies entered into before its effective date and certifying conflict with Cole); see also Sulzer v. Am. Integrity Ins. Co. of Fla., No. 6D23-391, 2024 WL 79882 (Fla. 6th DCA Jan. 8, 2024) (same). The insurer filed a notice to invoke the Florida Supreme Court’s jurisdiction. Universal Prop. & Cas. Ins. Co. v. Hughes, SC2024-0025. The parties have filed their briefs on jurisdiction, and they are awaiting the court’s decision. It is very likely that the court will accept jurisdiction to review this interdistrict conflict, which has now been joined by the Third District Court in Cantens

Here’s what happened in Cantens: the insureds appealed, arguing that the trial court erred in dismissing their suit “by applying the statute retroactively to an action founded on a policy issued before the effective date of the statute.”  The insureds submitted their claim prior to July 1, 2021, but did not initiate litigation against the carrier until after July 1, 2021, when the statute went into effect. The insureds, like the insureds in Cole and Hughes, argued that dismissal was improper based upon Menendez.

The Cantens court applied a two-factor test to determine whether the statute applied retroactively: “(1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether the retroactive application is constitutional.”  Old Port Cove Holdings, Inc. v. Old Port Condo. Ass’n, Inc., 986 So. 2d 1279, 1284 (Fla. 2008). The Cantens court agreed with Cole and found that the statute expressed an intent to apply retroactively by containing the following language: “[t]his section applies exclusively to all suits arising under a residential or commercial property insurance policy” and “a condition precedent to filing a suit under a property insurance policy.” (emphasis in original).

The Cantens court evaluated the pre-suit notice requirement of section 627.70152(3) and concluded that they were procedural in nature. Just as the Cole court, the Cantens court distinguished the pre-suit requirements contained in section 627.70152, Florida Statutes, from the statute at issue in Menendez

The Cantens court determined that, unlike the statute discussed in Menendez, the pre-suit notice requirement of section 627.70152(3) did not provide an insurer additional time to make a coverage decision because they only applied after a coverage determination was made. Further, section 627.70152(3) did not impose new punishments or penalties with a substantive impact on the insured’s ability to recover because, even if an action is dismissed for failure to comply with the pre-suit requirements, the dismissal would be without prejudice and the insured can refile.  

Accordingly, the Cantens Court disagreed with the Sixth District Court of Appeal’s holding in Hughes that the pre-suit notice requirements in section 627.70152 were substantive and could not be applied retroactively. In doing so, the Third District Court of Appeal has now joined the Fourth District Court of Appeal (Cole) in its conflict with the Sixth District Court of Appeal (Hughes). Stay tuned to see whether the Florida Supreme Court accepts jurisdiction and if so, how it will solve the conflict.

For more information, please contact Justine Roof or Vincent Fernandez.