Florida’s Fifth District Court of Appeal Holds Elimination of Entitlement to Attorney’s Fees Under a Property Insurance Policy is not Retroactive

By Douglas M. Cohen

In Blumberg v. Sec. First Ins. Co., No. 5D2024-1214, 2025 Fla. App. LEXIS 6592 (5th DCA Aug. 28, 2025), Florida’s Fifth District Court of Appeal (Fifth DCA) clarified whether the elimination of an insured’s right to attorney’s fees in litigation over the denial of benefits under a property insurance policy would be applied retroactively, finding that it would not.

Plaintiff purchased a one-year property insurance policy from Defendant in March 2022, suffered a covered loss in summer 2022, filed a claim in January 2023, and eventually filed suit in July 2023 seeking entitlement to attorney’s fees in the complaint. The claim was eventually settled, but the settlement left open the matter of attorney’s fees. Plaintiff then filed a motion for attorney’s fees and costs, citing the 2021 versions of sections 627.428, and 627.70152 Florida Statutes in effect at the time the policy issued. Those statutes entitled those insureds who recover against their insurer attorney’s fees. During the time between the Plaintiff’s covered loss and the initiation of her action against Defendant, the Florida Legislature enacted multiple amendments to and repeals of sections 627.428 and 627.70152, ultimately eliminating an insured’s right to attorney’s fees in litigation over the denial of benefits under a property insurance policy. The Defendant contested Plaintiff’s motion for attorney’s fees on the basis that the statutory right had been eliminated prior to the filing of her action. The trial court ruled that the amendment to the statute precluded the Plaintiff’s recovery of attorney’s fees.

On appeal, the Fifth DCA used the same approach used in analyzing retroactivity of Florida’s pre-suit notice provisions pursuant to section 627.70152, and as set forth by the by the Florida Supreme Court in Menendez v Progressive Express Ins. Co., 35 So. 3d 873 [Fla. 2010]. Under Menendez’s two prong retroactivity framework, first, plaintiff contended that the right to attorney’s fees is a substantive right, so elimination of that right is presumed to apply prospectively, and because there was nothing in the legislation indicating a clear intent for retroactive application, the amended versions should not apply. Second the plaintiff argued that retroactive application would be an unconstitutional impairment of substantive rights under the existing contract. In Menendez, the Florida Supreme Court explained that the proper analysis looks “at the date the insurance policy was issued and not the date the suit was filed, or the accident occurred, because ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’”

The Fifth DCA agreed with Plaintiff. Under the first prong, the Fifth DCA looked at the legislative history of the amendments and repeals, finding that none of the amendments and repeals to the relevant statutes discussed retroactivity or prospectivity. As to the second prong, the Court stated that even if the amendments or repeals did discuss retroactivity, elimination of attorney’s fees is a substantiative right, which renders retroactive application impermissible.

Accordingly, the Fifth DCA ordered that the Plaintiff’s insurance policy incorporated a statutory right to attorney’s fees at the time it issued, and that the elimination of that right to attorney’s fees cannot be retroactively applied. The Fifth DCA reversed the trial court’s order denying plaintiff’s motion for attorney’s fees and remanded the case for determination of an appropriate award.