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Legal Updates for Florida Coverage and Property Litigation

Appeals Court Reverses Verdict, Finds Trial Court Erred in Denying Motion to Dismiss and In Finding Late Notice Defense Was Waived When Alternative Policy Exclusions Were Raised in the Same Pleading

Universal Prop. & Cas. Ins. Co. v. Suffrat, Fla. 3rd DCA, No. 3D23-2263, LT No. 21-22216-CA-01, Nov. 5, 2025

December 1, 2025

by Brendan P. Smith

The Third District Court of Appeal reversed the trial court’s order denying the insurance company’s motion to set aside a jury verdict in favor of the insured. Prior to trial, the trial court denied the insurance company’s motion to dismiss. During the trial, the trial court granted a directed verdict as to the late notice defense raised by the insurance company. The trial court ruled that the defense had been waived by the assertion of alternative policy exclusions in the same pleading. The appellate court found both the denial of the motion to dismiss and the granting of a directed verdict on the late notice defense to be error. 

On September 2, 2020, the insured reported that her property had been damaged by Hurricane Irma on September 10, 2017. The claim was denied by the insurance company because the insured failed to timely report the loss. The insured then filed a declaratory judgment action, which the insurance company moved to dismiss based upon the insured’s failure to plead that she had provided a pre-suit notice of intent to initiate litigation. The trial court denied the motion to dismiss, finding that the statute requiring the notice of intent could not be applied retroactively to a policy issued before enactment of the statute. 

The insurance company then filed an answer, asserting affirmative defenses for late notice and for policy exclusions, including wear and tear and faulty workmanship. At trial, the trial court granted a directed verdict as to the late notice defense, finding that it was waived by the inclusion of the policy exclusion affirmative defenses in the answer. 

The appellate court found the trial court erred in denying the motion to dismiss. The court reiterated its holding in Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242, 246 (Fla. 3d DCA 2024), stating that the pre-suit notice of intent to initiate litigation was procedural in context and, therefore, applied to all policies, regardless of inception date. 

The appellate court also found the trial court erred in granting a directed verdict as to the late notice defense raised by the insurance company. The court stated that parties could plead multiple affirmative defenses in the alternative. Since the insurance company had properly raised late notice at the outset, it was not precluded from raising the defense at trial, despite pleading alternative affirmative defenses related to policy exclusions. The court found that there was sufficient evidence in the record to support the late notice defense and, therefore, reversed the trial court.  

Legal Update for Florida Coverage & Property Litigation – December 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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