Court finds Florida law requiring pre-suit notice in insurance cases applies retroactively
"Every case that seems to come to a different conclusion than the preceding case law muddies the waters," said Margaret Garner, appellant counsel.
Florida’s Fourth District Court of Appeal weighed in on a suit arising under a residential or commercial property insurance policy law and the written notice of intent to initiate litigation.
The ruling seems to contradict previous case law, according to one attorney, who said she’s not done seeing the case through to its full conclusion, if her client can hold out long enough.
The Florida Statute, known as 627.70152, states that as a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department.
The statute reads: “Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information.”
“My client had a claim that arose from a policy that existed prior to the passage of the statute,” said Margaret E. Garner, founding partner at Katranis, Wald & Garner in Fort Lauderdale, who represented Broward County resident Herman Cole against appellee Universal Property & Casualty Insurance Company.
“When the law passed … it created a lot of new hurdles that you have to jump through as a claimant before you can get to the point where you challenge a coverage decision in court,” Garner said.
For instance, the statute states a policyholder must give notice at least 10 business days before filing suit under the policy, but may not give notice before the insurer has made a determination of coverage.
Appellant Judge Mark Klingensmith authored the ruling with Judges Spencer Levine and Dorian Damoorgian concurring.
“We find that the trial court did not err in dismissing appellant’s complaint for failure to comply with the pre-suit notice requirements of Section 627.70152(3). In section 627.70152, the legislature expressed a clear intent for the statute to apply retroactively,” the jurists said. “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. … Thus, the statute applies to all suits.”
The judges continued: “The statute goes further and provides that “[a]s a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department … Thus, it also applies to all policies, including those already in existence at the time of the statute’s effective date.”
‘Menendez v. Progressive Express Insurance’ precedent
In the ruling the jurist said the appellant argued this case was like Menendez v. Progressive Express Insurance, which involved an amendment to a different statutory scheme—the Personal Injury Protection or PIP statute.
“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,” Levine wrote.
“The trial court found that Menendez was ‘distinguishable, and Section 627.70152 is clear on its face.’ The trial court dismissed the complaint and directed the clerk to close the file. Appellant moved for rehearing, and the trial court denied the motion,” Levine wrote.
‘I want the law to be clear’
Garner said her client is asking for the judges to reconsider the ruling.
“That very holding according to Menendez should have meant they came to the opposite conclusion about the rest of it, because they follow-up after saying even though Subsection 8 cannot be applied retroactively,” she said. “That in and of itself does not mean that this other subsection of the statute can’t.”
“I have a real human being who owns a house that really needs to be fixed and the longer that this gets dragged on, the harder his daily life is. … I want the law to be clear,” Garner said.
“I want precedent to make sense. Every case that seems to come to a different conclusion than the preceding case law muddies the waters and makes future appeals more different more difficult,” the attorney said.
Garner said, “I am very cognizant of the need for clear rulings that make sense. But I also have to take care of my client first because that’s my job. So a rehearing motion will happen. What happens after that is obviously dependant on what the decision is, and then have another conversation with my client.”
Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein in Miami represented Universal Property & Casualty Insurance Co. She did not return emails for comment on the ruling.
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