The changes to Florida's pre-suit provisions, enacted in 2001, cannot be applied retroactively as the changes were substantive and not procedural.

The insured sued the insurer for failing to pay personal injury protection (PIP) benefits after she was injured in a motor vehicle accident. The issue on appeal to the Florida Supreme Court was whether the pre-suit provision of Fla. Stat. § 627.736(11)(a) (2001), which was enacted after the accident, was applicable. The pre-suit notice provisions instituted several amendments to the PIP law. It required an insured to provide a pre-suit notice of intent to initiate litigation and provided an insurer additional time to pay an overdue claim. The amendment also mandated that the payment from the insurer include interest and penalties not exceeding $250. If an insurer paid within the additional time provided by the statute, the payment precluded an insured from bringing suit for late payment or nonpayment and shielded the insurer from a claim for attorneys' fees. Further, the amendment tolled the applicable statute of limitations. On appeal, the Florida Supreme Court held that the pre-suit notice provision could not be applied retroactively because it constituted a substantive change to the statute, as it was a substantive and not a procedural change, because it imposed a penalty, implicated attorneys' fees, granted an insurer additional time to pay benefits, and delayed an insured's right to file suit. Accordingly, the Court found that the appellate court erred in its conclusion that § 627.736 was procedural and given retroactive application.

Case Law Alert - 3rd Qtr 2010