On May 3, 2023, the Fourth District Court of Appeals released their decision in Cole v. Universal Property and Casualty Insurance Company (hereinafter “Cole”).1 The Cole opinion discusses the retroactive application of presuit notice requirement enact as part of section 627.70152, Florida Statutes.
While a more in-depth analysis of Senate Bills 76 (2021) and 2-A (2023) is forthcoming, this immediate preliminary examination is necessary due to the potential implications of the opinion.
Background and Facts
A complete recitation of the facts of the claim itself is not necessary as only a simple timeline of events is warranted. In November 2020, the insured submitted a claim to the insurance carrier regarding property damages sustained. On July 1, 2021,2 section 627.70152, Florida Statutes, took effect instituting a new pre-suit requirement which mandated the filing of a notice of intent to initiate litigation. In August 2021, the insured filed suit alleging breach of contract without first providing notice under the newly enacted statute.
During litigation, Universal moved to dismiss the complaint due to the failure to file the statutory notice. The trial court granted this motion and dismissed the case without prejudice to allow the notice to be filed. The appeal followed.
4th DCA Opinion
On appeal, the 4th DCA upheld the trial court's ruling. The court stated that, while the provisions related to attorney's fees were substantive in nature and could not be applied retroactively, the requirement that a notice be filed was procedural. This, coupled with a perceived retroactive intent in the statute applying to “all suits” stemming from policyholders under property insurance policies, led the court to a determination the notice requirement could be applied retroactively.3 As the court reasoned, “[o]ne provision that is substantive in scope does not act as a bar to enforcement of another provision that is able to be applied retroactively.”4
Analysis, Impact, and Effect
All newly enacted statutes are presumed to apply prospectively.5 This falls in line with the well-established truism of contract law that “[t]he laws in force at the time of the making of a contract enter into and form a part of the contract as if they were expressly incorporated into it.”6 Additionally, as it relates specifically to insurance policies, “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”7 This is further supported by the Contract Clause of Florida's Constitution which states “[n]o bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”8
In order to apply a law retroactively, a two-pronged test must be satisfied. “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.”9 “[E]ven where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty . . . [or] ‘attaches new legal consequences to events completed before its enactment.'”10
The basis for the retroactive intent was gathered through the subsection of the notice statute which states “[t]his section applies exclusively to all suits not brought by an assignee arising under a residential or commercial property insurance policy, including a residential or commercial property insurance policy issued by an eligible surplus lines insurer.”11 The court determined that the use of the word “all,” the legislature clearly evinced intent for retroactive application. This is despite a full reading of the section which discusses more the scope of the claimants who must follow the statute versus the potential for retroactivity.
Furthermore, it is baffling to see that Cole court's finding that the insured's “rights and obligations are unchanged by the addition of the presuit notice provision in section 627.70152.”12 The notice statute obligates insureds to file a formal notice and wait potentially 100 days or more before filing suit would be appropriate. It also contemplates allowing reinspection or potentially subjecting the insured to an entirely new adjustment of a previously denied claim despite the carrier's ability to undertake such adjustment before the insured is forced to hire counsel. In support of this, the Cole court stated that “[t]he notice provision is simply part of the ‘course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.'”13 Of course, they ignore the ramifications of the notice which include potentially abusive delay in filing suit. On this issue, the court said that it did not believe this delay to be “substantive.”14
If there is anything favorable to glean from the Cole decision it is that the fee implications of the notice statute are not to be applied retroactively. The enaction of the statute created a fee quotient which served to limit the potential recovery for attorney's fees depending on the amount obtained in a judgment versus the amounts demanded and offered pre-suit.15 The Cole court noted that “simply because the right to attorney's fees in subsection (8) is substantive and not able to be applied retroactively does not mean that the presuit notice provision in subsection (3) is not able to be applied retroactively.”16 This can be taken to mean that, even in suits where a notice was filed, if the policy was entered into prior to the effective date of the statute, the fee quotient does not apply as to enforce same would be violative of a substantive right.
As always, should you have any questions about how this analysis may relate to your own claim, please do not hesitate to contact us for a free consultation.
1 Cole v. Universal Prop. & Cas. Ins. Co., Case No. 4D22-1054, 2023 WL 3214643 (Fla. 4th DCA May 3, 2023).
2 Laws 2021, c. 77.
3 Cole slip. op. at 5.
4 Id. at 7 citing Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 518 (Fla. 2008) (noting that provisions of a statute declared unconstitutional may be severed); Leapai v. Milton, 595 So. 2d 12, 15 (Fla. 1992) (finding procedural aspects of another statute “severable from the language creating the substantive right to attorney fees and costs”).
5 Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999).
6 Florida Beverage Corp. v. Div. of Alcoholic Beverages & Tobacco, Dept. of Bus. Regulation, 503 So. 2d 396, 398 (Fla. 1st DCA 1987) citing Shavers v. Duval County, 73 So. 2d 684 (Fla. 1954); Tri-Properties, Inc. v. Moonspinner Condominium Association, Inc., 447 So. 2d 965, 967 n. 2 (Fla. 1st DCA 1984); Cycle Dealers Insurance, Inc. v. Bankers Insurance Company, 394 So. 2d 1123 (Fla. 5th DCA 1981); 11 Fla.Jur.2d Contracts § 129, 17 Am.Jur.2d Contracts § 257.
7 Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla.1996); see also Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612, 613 (Fla. 3d DCA 1983) (holding that a policy is governed by the law in effect at the time the policy is bound and issued as opposed to the law in effect at the time a loss giving rise to a claim occurs); Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037, 1038 (Fla. 2d DCA 1979) (holding that the date of the loss does not determine the law applicable to a subsequent dispute).
8 Fla. Const. art. I, § X.
9 Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) citing Metro. Dade, 737 So. 2d at 499.
10 Menendez at 877 quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994); see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla.1995).
11 Fla. Stat. § 627.70152(1) (2021) [emphasis added].
12 Cole slip. op. at 5.
13 Id. quoting Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (citation omitted); see also Art Deco 1924 Inc. v. Scottsdale Ins. Co., No. 21-62212-CIV, 2022 WL 706708 (S.D. Fla. Mar. 9, 2022) (finding that section 627.70152 was procedural and therefore applied retroactively).
14 Cole slip. op. at 7.
15 Fla. Stat. § 627.70152(8) (2021).
16 Cole slip. op. at 7.