Tom Moody and Zach Sonenblum Secure Dismissal in Insurer Breach of Contract Case

Clausen Miller attorneys Tom Moody and Zach Sonenblum recently successfully defended their insurer client against a one-count complaint for breach of contract in Florida’s Circuit Court of the First Judicial Circuit in and for Escambia County, Florida.

Plaintiffs sued Olympus Insurance Company (“Olympus”) for breach of contract, and Olympus moved to dismiss the lawsuit for failure to provide pre-suit notice in compliance with Fla. Stat. § 627.70152(3)(a). On January 4, 2023, the Court denied Olympus’s motion to dismiss due to the absence of any state court appellate decision applying the pre-suit requirement retroactively to existing claims.

However, on May 3, 2023, the Fourth District Court of Appeal issued an appellate decision construing the pre-suit notice requirement and holding that pre-suit notice is required for all suits filed after the state enacted Fla. Stat. § 627.70152(3)(a). See Cole v. Universal Prop. & Cas. Ins. Co., 2023 Fla. App. LEXIS 2997 at *12-13 (Fla. 4th DCA 2023) (“section 627.70152(3) does not contain any of the same problematic characteristics, but requires only a perfunctory presuit notice requirement […] In summary, because the presuit notice requirement of section 627.70152 applies retroactively as a procedural provision, it applies to existing policies at the time of enactment.”).

Pursuant to the Cole decision, on July 17, 2023, Olympus filed a Motion for Reconsideration of its Motion to Dismiss, based upon Plaintiffs’ failure to provide pre-suit notice in compliance with Fla. Stat. § 627.70152(3)(a). After the Plaintiffs still refused to dismiss and forced Olympus to schedule its Motion for Reconsideration for hearing, Olympus filed a Motion for Sanctions Pursuant to Fla. Stat. § 57.105, based upon Plaintiffs’ refusal to withdraw a claim not supported by the facts or application of existing law.

The Court granted Olympus’ Motion for Reconsideration and dismissed Plaintiffs’ lawsuit, finding that Fla. Stat. § 627.70152(3)(a) applies to Plaintiffs’ lawsuit per Cole. Moreover, the Court explicitly reserved jurisdiction to consider sanctioning the Plaintiffs and their counsel for opposing the motion for reconsideration, and will take up the matter in the future to determine whether the Plaintiffs had a good faith basis for opposing dismissal after Cole.