U.S. District Court for the Southern District of Florida Dismisses Condo Association’s Hurricane Irma Complaint as Time-Barred

On May 7, 2024, in Arlen House Condo. Ass’n, Inc. v. Rockhill Ins. Co., Case No. 22-cv-23649-BLOOM/Torres, the U.S. District Court for the Southern District of Florida dismissed the second amended complaint brought by insureds Arlen House Condominium Association, Inc. and Arlen House West Condominium Association, Inc. (“the Associations”) as time-barred and rejected the argument that Fla. Stat. § 627.70152 applies retroactively. 

This lawsuit arose out of an insurance claim for wind damage to three Florida properties owned by the Associations (“Property”) caused by Hurricane Irma in 2017. At that time, the Property was insured under a commercial property policy issued by Rockhill Insurance Company (“Rockhill”), and coverage was ultimately denied. 

The Associations filed a lawsuit against Rockhill and numerous insurers, including Liberty Surplus Insurance (“Liberty”), in 2022. The lawsuit was removed from the Eleventh Judicial Circuit for Miami-Dade County to the U.S. District Court for the Southern District of Florida, and the Associations subsequently amended its complaint to include only Rockhill as a defendant.

In 2024, the Associations amended their complaint again, filing a Second Amended Complaint for breach of contract (Count I) against Rockhill and adding Liberty back in as defendant. The Second Amended Complaint alleged that Liberty wrongfully denied the Associations coverage and failed to issue payment following the damage to the Property. Liberty moved to dismiss the Second Amended Complaint as time-barred by the applicable statute of limitations.

The court found that the suit against Liberty was time-barred, as the date of loss alleged in the Associations’ Second Amended Complaint was September 10, 2017, while the statute of limitations on any breach of contract action arising out of the September 10, 2017 loss expired five years later, on September 10, 2022. The Associations sued Liberty on September 22, 2022, twelve days after the statute of limitations period expired. 

Under Fla. Stat. § 627.70152: “As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the [Florida Department of Financial Services] with written notice of intent to initiate litigation on a form provided by the department.”

The Associations argued that they provided notice of intent to initiate litigation against Liberty on December 14, 2023, which was timely and properly given under § 627.70152. Meanwhile, Liberty claimed that § 627.70152 does not apply because the statute did not take effect until July 1, 2021, more than three years after the Liberty Excess Policy was at issue and cannot be applied retroactively. 

The Court ruled that § 627.70152 did not apply in this case, as “§ 627.70152 imposes substantive changes that foreclose retroactive application.” The Court noted that, even if § 627.70152 applied, the Associations’ December 14, 2023 notice of intent to initiate litigation could not serve to toll the Associations’ claim against Liberty.

The Court subsequently granted Liberty’s motion to dismiss. The case was dismissed with prejudice as to Liberty and shall continue to proceed against Rockhill.