Florida District Courts of Appeal Continue to Conflict on Retroactive Application of Pre-Suit Notice Requirements of 627.70152(3), Florida Statutes

By Douglas M. Cohen

In Fernando Cantens and Ana Marie Cantens v. Certain Underwriters at Lloyd’s London, etc. the Third District Court of Appeal (composed of Miami Dade and Monroe Counties) held that Fla. Stat. Section 627.70152, which requires a pre-suit notice of intent to initiate litigation be filed as a condition precedent to filing suit under a property insurance policy, applies to all suits filed after the July 1, 2021 effective date. This decision aligns with the holding by the Fourth District Court of Appeal (composed of Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties) in Cole v. Universal Prop. & Cas. Ins. Co.

Both the Third District Court and Fourth District, however, are in conflict with the Sixth District Court of Appeal (composed of Orange, Osceola, Hardee, Highlands, Polk, Charlotte, Collier, Glades, Hendry and Lee Counties) which held that the pre-suit notice requirement is a substantive statute that cannot apply to a claim brought under an insurance policy purchased before the statute’s enactment, relying on the Florida Supreme Court’s unanimous decision in Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010). The Sixth District found that (1) there is no clear legislative intent or language for section 627.70152 to apply retroactively; and (2) the statute is substantive as it allows an insurer to avoid an award of attorney’s fees by paying a claim during the safe harbor period provided by the pre-suit notice process.

In Cantens, the Third District noted that the insureds did not dispute failing to provide notice as required by section 627.70152(3) but argued that the statute cannot be applied to an action founded on their policy which predated statutory enactment. Recognizing the conflicting holdings in both Cole and Hughes, the Cantens court agreed with Cole that section 627.70152(3) serves as “a condition precedent to filing a suit under a property insurance policy”. As such, the statute contains a clear legislative intent to apply retroactively to all claims regardless of when the policy was incepted. The Cantens court stated that Section 627.70152(3), did not impose any new punishments or penalties, nor implicate an insured’s ability to recover attorney’s fees that substantively impact an insured’s ability to recover, as the action may be refiled even if dismissed without prejudice for failure to comply with the procedural requirement of 627.70152(3).

In Cantens, the Third District joined in the certification of conflict between Cole and Hughes, stating that should the Florida Supreme Court accept jurisdiction, it will be able to determine the correct application.