Southern District of Florida Holds that Fl. Stat. § 627.70152 May Be Applied Retroactively

By Douglas M. Cohen

In Jesus Rock Ministries, Inc. v. Scottsdale Ins. Co., 2023 U.S. Dist. LEXIS 189657 (S.D. Fla. October 23, 2023), the Court held that the pre-suit notice requirement of Fla. Stat. § 627.70152(3) applied retroactively and dismissed the Plaintiff’s lawsuit.

In this Hurricane Irma first party property claim, the Defendant moved, inter alia, for summary judgment based on the Plaintiff’s failure to abide by the pre-suit notice requirement of Fla. Stat. § 627.70152(3), which states that insurance claimants provide the Florida Department of Financial Services with a written notice of intent to initiate litigation…at least 10 business days before the filing suit. Plaintiff admitted that it did not comply with the pre-suit notice requirement, arguing that statute did not apply retroactively as the policy sued under predated the statute’s enaction.

The Court recognized the existence of a growing consensus among lower courts that the pre-suit notice requirement could not be applied retroactively, listing numerous prior decisions. However, the Court recognized the recent decision from Florida’s Fourth District Court of Appeal reaching the opposite conclusion. Specifically, in Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089 (Fla. 4th DCA 2023), the court found “the legislature expressed a clear intent for the statute to apply retroactively” and concluded that the “litany of notification requirements” in section 627.70152 “adds up to provisions related to process and procedure”, i.e. not substantive changes.

Ultimately, the Court held it is bound by the state’s intermediate appellate court decision in Cole and it is a binding change in Florida state law. Accordingly, the Court granted the Defendant’s motion for summary judgment on its defense of Plaintiff’s failure to provide pre-suit notice under section 627.70152(3). The Court dismissed the case without prejudice (the statutory remedy of Fla. Stat. 627.70152(5)), although unlikely to be cured.