Florida Third DCA Quashes Trial Court’s Denial of Insurer’s Motion to Dismiss, Concluding Pre-Suit Requirements Apply to “Thinly Veiled” Breach of Contract Count Styled as Declaratory Judgment Claim
By Kelly M. Vogt
In Citizens Prop. Ins. Corp. v. Walden, 2024 Fla. App. LEXIS 6864 (Fla. 3d DCA Sept. 4, 2024), the Third District Court of Appeal quashed the trial court’s order that denied Citizens’ motion to dismiss for failure to comply with the pre-suit requirements of Fla. Stat. § 627.70152.
The insured asserted two counts against Citizens for declaratory relief. Count I sought a declaration that she did not need to comply with § 627.70152 which requires insureds to file a written, pre-suit notice of their intent to initiate litigation against their property insurance carrier with Florida’s Department of Financial Services. Count II sought a declaration that Citizens’ liability exceeds the insurance contract’s $10,000 cap that applies to a plumbing loss under the policy’s Managed Repair Contractor Network Program Endorsement. This count specifically sought a declaration that Citizens “must pay an additional $4,929.82.”
Although it was undisputed that the insured failed to comply with the pre-suit notice requirements, the trial court denied the insurer’s motion to dismiss because the court found that § 627.70152 does not apply where the insured seeks only contract interpretation under Chapter 86 of the Declaratory Judgment Act. In quashing the trial court’s order, the Third District Court of Appeal held it need not address the issue of whether § 627.70152 applies to a declaratory judgment action because the complaint in this case alleged a “thinly veiled” breach of contract claim.
Kelly M. Vogt