SDV Insights

Florida’s newly formed Sixth District Court of Appeal (“Sixth DCA”) recently certified conflict with Florida’s Fourth District Court of Appeal on the issue of retroactive application of the pre-suit notice requirement contained in Florida Statute §627.70152.¹  Earlier this year, the Fourth District Court of Appeal (“Fourth DCA”) held that the pre-suit notice provision applies retroactively, meaning, it applies to all suits filed after July 1, 2021, regardless when the insurance policy was issued.²  The Sixth DCA, in Hughes v. Universal Property & Casualty Insurance Company,³  directly rejected the Fourth DCA’s interpretation and instead found a retroactive application of the pre-suit notice to be unconstitutional under Florida law. Prior to the Fourth DCA’s ruling, most trial courts had found no retroactive application for the pre-suit notice provision.⁴

In August 2021, shortly after Florida Statutes Section 627.70152 went into effect on July 1, 2021, Rebecca Hughes (“Hughes”) sued Universal Property & Casualty Insurance Company (“Universal Property”) for breach of contract after Universal Property denied her insurance claim. Hughes did not file a pre-suit notice under Section 627.70152. Universal Property moved to dismiss based on Hughes’ failure to file the pre-suit notice, arguing that the pre-suit notice requirement applies to all lawsuits filed after July 1, 2021, even if the claimant’s insurance policy was issued before the statute’s effective date. The trial court agreed with Universal Property and dismissed the lawsuit.

Both parties agreed that “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.”⁵ Therefore, the crux of the issue was whether the notice requirement in Section 627.70152 was substantive or procedural in nature. If substantive, the statute could not apply retroactively without  running afoul of Florida’s well-established constitutional principles. However, if the notice requirement was deemed to be procedural, it could apply retroactively without unconstitutionally violating parties’ rights.

On appeal, the Sixth DCA agreed with Hughes, principally relying on Menendez v. Progressive Express Insurance Co., Inc., a 2010 Florida Supreme Court case wherein the Court declined to retroactively apply a pre-suit notice requirement relating to personal injury protection (PIP) benefits.⁶ The Menendez Court found that the pre-suit notice requirement could not be applied retroactively because it allowed an insurer to avoid an award of attorneys' fees, which constituted a “substantive” change to the statute in effect at the time the insureds' insurance policy was issued.⁷

In determining whether a statute should apply retroactively, the Supreme Court created a two-pronged test. First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, even if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.⁸

Analyzing the first prong of the Menendez test, the Hughes Court found that the Florida Legislature did not explicitly intend to retroactively apply Section 627.70152. Rather, it found the opposite. In lieu of any mention of insurance policies issued before the statute’s enactment, the statute instead contains an explicit effective date of July 1, 2021, which the Sixth DCA interpreted to mean that the statute applied beginning on that date and not any date earlier. 

Furthermore, the Court rejected Universal Property’s argument that the statute's express application to "all suits arising under a residential or commercial property insurance policy" meant that the statute would impact all insurance policies, regardless of the policy’s effective date. Instead, the Sixth DCA clarified that "all" referred to the specific categories of cases and policies falling under the statute's scope—cases involving residential or commercial insurance policies not initiated by assignees—rather than the timing of the statute's enactment.⁹ The Court also found that the mere use of the phrase “all suits” in one subsection of an eight-subsection statue is “too inconclusive to constitute clear evidence of legislative intent for the statute to apply retroactively.”¹⁰

Because the Sixth DCA found that the provision failed the first prong of the Menendez test, retroactive application was found to be unconstitutional without the need to analyze the second prong of the test. Nevertheless, the majority examined the second prong of the Menendez test and noted that because Section 627.70152 grants an insurance company up to an extra 24 days to pay a claim before being exposed to an insured’s attorneys’ fees, this amounts to a substantive change in an insured’s vested rights. In other words, even if the Florida Legislature had expressly intended for the statute to apply retroactively, such retroactive application would still be unconstitutional. Therefore, the Sixth DCA found that the statute cannot be applied retroactively.

Closing Thoughts

The Hughes’ Sixth DCA Court found that retroactive application of Section 627.70152’s pre-suit notice requirement is unconstitutional because it fails both prongs of the Menendez test (a test where failure of just one prong prohibits retroactive application of a statute). This holding is the proper interpretation of the statute’s pre-suit notice requirement and resembles how the Florida Supreme Court should rule on the issue if it accepts jurisdiction of the certified conflict.

Before this ruling, the binding precedent from the Fourth DCA was that the pre-suit notice requirement applied to all policies, even those in effect before July 1, 2021. Trial courts were bound by the Fourth DCA. Now, an appellate circuit split allows trial courts to consider the appellate court rulings in both Hughes and Cole, and ideally draw the correct conclusion consistent with the Hughes Court.

The Hughes decision represents a win for policyholders who have policies with effective dates before statute enactment date of July 1, 2021.¹¹ Nevertheless, out of an abundance of caution, it is recommended that policyholders still attempt to follow all the requirements of the new statute, including the pre-suit notice requirement, whose retroactivity has not been conclusively decided by the Florida Supreme Court. 

For more information on this topic, contact Holly A. Rice at HRice@sdvlaw.com.

Special thanks to Damian Barquin, Law Clerk, for assistance with this case alert.

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¹Subsection 627.70152(3)(a) requires policyholders to provide a pre-suit notice of their intent to litigate with their carrier to the Department of Financial Services. This pre-suit notice is especially important for policyholders to follow because subsection (5)(b) imposes a penalty of dismissal without prejudice for a claimant’s failure to file suit without first providing that newly required pre-suit notice. Importantly, the statute also provides that where a claimant’s lawsuit is dismissed for failure to provide the pre-suit notice under subsection 5(b), the claimant may not recover any attorneys’ fees incurred for services rendered before the dismissal. Reading the statute as a whole, the pre-suit notice requirement therefore represents a monumental shift in an insured’s duties and rights.

²Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089 (Fla. 4th DCA 2023).
³2023 WL 8108671 (6th DCA Nov. 22, 2023).
⁴See Dozois v. Hartford Ins. Co. of the Midwest, 595 F. Supp. 3d 1204, 1208 (M.D. Fla. 2022) (holding it is impermissible for courts to retroactively apply section 627.70152(3) because the statute “imposes new duties, obligations, and penalties”); Rosario v. Scottsdale Ins. Co., 2022 WL 196528, at *1–*3 (S.D. Fla. Jan. 21, 2022) (same); Broward Design Ctr., Inc. v. Scottsdale Ins. Co., 2022 WL 1125787, at *1 (S.D. Fla. Apr. 15, 2022) (same); Villar v. Scottsdale Ins. Co., 2022 WL 3098912, at *4–*5 (S.D. Fla. Aug. 3, 2022) (same); Bharratsingh v. Lexington Ins. Co., 2022 WL 3279537, at *1 (S.D. Fla. Aug. 10, 2022) (same); O'Kelley v. Lexington Ins. Co., 2022 WL 17583683, at *4–*5 & *5 n.1 (S.D. Fla. Sept. 16, 2022) (same); Williams v. Foremost Prop. & Cas. Ins. Co., 619 F. Supp. 3d 1161, 1164–66 (M.D. Fla. 2022) (same).
⁵Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996).
⁶35 So.3d 873 (Fla. 2010).
⁷Id. at 879.
⁸Regarding the first prong of the Menendez Test, the Florida Supreme Court emphasized that statutes don't apply retroactively unless there is a clear intention from the legislature to do so. To justify retroactive application, there must be explicit legislative intent that overrides the presumption against retroactivity.
⁹2023 WL 8108671, at *5 (6th DCA Nov. 22, 2023).
¹⁰Id.
¹¹The enactment of SB-2A in late 2022 eliminated one-way fee shifting in first-party property claims arising from residential or commercial property insurance policies. However, Florida courts have universally held that SB-2A cannot be applied retroactively. Because of this judicially recognized protection to an insured’s vested rights to attorneys’ fees, any insured who brings a claim arising from a property insurance policy predating the enactment of SB-2A (December 18, 2022) can still seek attorney’s fees under certain circumstances.