Florida Sixth District Court of Appeal Conflicts with Florida Fourth District Court of Appeal on Retroactive Application of 627.70152, Florida Statutes

By Douglas M. Cohen

In Cole v. Universal Prop. & Cas. Ins. Co. the Florida Fourth District Court of Appeal (which is composed of Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee 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.

In Hughes v. Universal Prop. & Cas. Ins. Co., however, the Sixth District Court of Appeal (which is composed of Orange, Osceola, Hardee, Highlands, Polk, Charlotte, Collier, Glades, Hendry and Lee counties) subsequently held that the pre-suit notice of intent to initiate litigation as a condition precedent to filing suit under a property insurance policy, does not apply to insurance policies entered into before the statute’s effective date.

In Hughes, the insured filed suit for breach of contract without filing the presuit notice. The trial court granted the insurer’s motion to dismiss based on same. On appeal, the insured argued, and the Sixth District Court of Appeal 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 Menedez 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.

The Sixth District Court of Appeal reversed the trial court’s order of dismissal and certified conflict with the Fourth District Court of Appeal’s holding in Cole.