Fifth District Appellate Court Rules Florida’s Pre-Suit Notice Requirement Does Not Apply to Policies Issued Before the Statute’s Effective Date

By Irene Thaler

In Gary Smith and Nadine Smith v. Universal Property and Casualty Insurance Company, 2024 Fla. App. LEXIS 8658 (November 8, 2024), the Smiths purchased a property insurance policy from Universal Property and Casualty Insurance Company (“Universal”), which had an expiration date of June 1, 2021. The Smiths sustained damage to their property in November 2020 and reported a claim to Universal. After Universal denied payment of the claim, the Smiths filed a lawsuit in April 2022.

In July 2021, approximately nine months before the Smiths’ lawsuit was filed, section 627.70152, Florida Statutes (2021), was enacted, requiring insureds to send a pre-suit notice of their intent to initiate litigation against an insurer. Relying upon the recent opinion in Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023), Universal moved for summary judgment arguing that section 627.70152, Florida Statutes (2021), applied retroactively. The Smiths conceded they did not serve a pre-suit notice upon Universal and argued that the statutory requirement could not be applied retroactively to their claim. The trial court, relying on Cole, disagreed, and found that section 627.70152 should be applied retroactively. Because the Smiths did not comply with the statute, the court granted Universal’s motion for summary judgment.

On appeal, the Fifth District acknowledged there is a conflict between the Second and Sixth District Court of Appeal and the Third and Fourth District Courts of Appeal as to whether section 627.70152 applies retroactively to insurance policies issued before the statute’s effective date. The Fifth District Court of Appeal adopted the rationale and reasoning of the Second and Sixth Districts and held that it was error to apply section 627.70152 retroactively to the Smiths’ policy. The Fifth District specifically rejected the rationale and argument that the statute’s application to “all suits” indicates clear legislative intent for retroactive application, and certified conflict with the Third and Fourth District Court decisions of Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242 (Fla. 3d DCA 2024), and Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023).