Final Jury Verdict Reversed and Remanded for Trial Court’s Order Denying Insurer’s Motion to Set Aside Verdict for Failing to Dismiss and Limiting Affirmative Defenses

By Douglas M. Cohen

In Universal Prop. & Cas. Ins. Co. v. Suffrat, No. 3D23-2263, 2025 Fla. App. LEXIS 8327 (3d DCA Nov. 5, 2025), Florida’s Third District Court of Appeal (“Third DCA”) reversed and remanded a trial court’s order denying Universal’s motion to set aside a final judgment following a jury verdict in favor of the insured plaintiff.

Plaintiff was the homeowner of a residential property insured by Universal when it was allegedly damaged by Hurricane Irma on September 10, 2017. The loss was first reported nearly three (3) years later, on September 2, 2020. Universal denied the claim, citing plaintiff’s failure to provide prompt notice to Universal or its agent after experiencing a loss.

On September 29, 2021, plaintiff filed suit against Universal. Three (3) months prior to plaintiff’s suit, the Florida legislature enacted Fla. Stat. §627.70152, which included and required that a pre suit notice of intent to litigate was a condition precedent to filing suit.  Since plaintiff failed to plead that pre suit notice was provided, Universal moved to dismiss the action. Plaintiff responded that the statute requiring pre suit notice could not be applied retroactively to an action founded on a policy issued before the effective date of the statute. Agreeing with this argument, the trial court denied Universal’s motion to dismiss.

Universal then filed its answer and affirmative defenses, including Plaintiff’s failure to promptly notify Universal of her claim, and defenses based on policy exclusions, including wear and tear and faulty workmanship. After conflicting evidence was presented at trial pertaining to the cause of damage and prejudice to Universal due to late notice, the trial court granted plaintiff’s motion for directed verdict on Universal’s late notice defense. The trial court agreed with plaintiff that the late notice defense was waived because Universal asserted other defenses based on policy exclusions. With the late notice defense struck, the jury returned a verdict in favor of the plaintiff.

Universal then filed a motion to set aside the verdict, or in the alternative, motion for new trial which the trial court denied, leading to the appeal to the Third DCA.

On appeal, recognizing that the trial court did not have the benefit of the Third DCA’s ruling in Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242 (Fla. 3d DCA 2024)¹ (the pre suit notice requirement of section 627.70152 is procedural in nature and applies to all policies regardless of inception date), the Third DCA found that the trial court erred in denying Universal’s motion to dismiss for failing to plead compliance with the pre suit notice statute.

The Third DCA also found that the trial court erred in granting plaintiff’s motion for directed verdict on Universal’s late notice defense. The Third DCA recognized it is well settled Florida law that a party may plead multiple alternative defenses (or claims), regardless of consistency, as long as it does not result in prejudice to a party. Since Universal’s initial denial letter was based on plaintiff’s failure to provide prompt notice, late notice was raised as an affirmative defense, and Universal presented ample and sufficient evidence to support the late notice defense, the directed verdict striking the late notice defense was improper (a directed verdict is proper only when there is no evidence upon which the jury could lawfully find a verdict for the non-moving party).

Accordingly, the Third DCA reversed the trial court’s order denying Universal’s motion to set aside the final judgment and remanded the case for further proceedings consistent with its opinion.

---

¹ There is a split among the District Courts of Appeal in Florida regarding retroactivity of Fla. Stat. §627.70152’s pre-suit notice requirement and Cantens is being reviewed in the Florida Supreme Court on conflict jurisdiction.