Middle District of Florida Finds Statutory Pre-Suit Notice Requirement Applies “Quasi-Retroactively”

by Tony Pagán, Jr.

The United States District Court for the Middle District of Florida (Tampa Division) recently granted an insurer’s motion to dismiss for failure to comply with Florida’s pre-suit notice requirement, ultimately agreeing with Florida’s Fourth District Court of Appeal’s holding that the subject notice requirement is procedural and applies “quasi-retroactively.”

In Pearson v. Scottsdale Insurance Company, the insurer defendant moved to dismiss for failure to comply with the pre-suit notice requirement and timely renewed the motion after appraisal was requested and concluded, with an itemized award for disputed damages in favor of the insured.

Rejecting the insured’s argument that the insurer’s post-suit appraisal payment constituted a “confession of judgment” entitling the Insured to attorneys’ fees, the Court determined that because the Insured failed to comply with the procedural notice requirement (Section 627.70152(3)), the action was subject to dismissal without prejudice.  In so finding, the Court was left without jurisdiction to address the insured’s motion and alleged entitlement to attorneys’ fees (denied as moot).

Quoting both Black’s Law Dictionary (11^th ed. 2019) and T.C. Hartley’s The Foundations of European Community Law (Pg. 129, 1981), the Court defined “retroactivity” as “extending in scope or effect to matters that have occurred in the past.” The Court then distinguished “true retroactivity” from “quasi-retroactivity,” which occurs “when a new rule of law is applied to an act or transaction in the process of completion.” 

This distinction between completed and pending transactions underlies the Court’s finding that Florida’s pre-suit notice requirement is “quasi-retroactive,” as the Court reasoned that the statute imposes a “prospective requirement” (pre-suit notice) on a “pending transaction” (policy of insurance charging the insurer with a duty that they have allegedly failed to perform) and disturbs nothing within the four corners of the policy.

Tony Pagán, Jr. focuses his practice on counseling, defending, and litigating matters for international and national insurance carriers in state and federal courts.