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Professional Liability

Legal Updates for Florida Coverage and Property Litigation

Fifth District Court of Appeal found it was error to apply §627.70152 retroactively to the policy in this case and reversed the summary judgment entered below and remand for further proceedings.

Gary Smith and Nadine Smith v. Universal Property and Casualty Insurance Company, Fla. 5th DCA, No. 5D2023-3381, November 8, 2024

December 1, 2024

by Corey K. Setterlund

The insureds filed a breach of contract lawsuit against their homeowner insurance carrier in April 2022 for damage that occurred at their property in November 2020. Nine months prior to the insureds’ filing their lawsuit, Florida Statute § 627.70152 was enacted, which requires insureds to send a pre-suit notice of intent to initiate litigation against a homeowners insurance carrier (the statute). 

The carrier moved for summary judgment due to the insureds’ lack of pre-suit notice of intent to initiate litigation based on the ruling in Cole v. Universal Property and Casualty Insurance Company [363 So.3d 1089 (Fla. 4th DCA 2023)], which determined the statute applied retroactively. The insureds admitted they did not file a pre-suit notice of intent to initiate litigation, but they argued the statute could not be applied retroactively. The trial court relied upon Cole and granted the carrier’s motion for summary judgment. 

One month after the trial court issued its ruling, the Sixth District Court of Appeal, in Hughes v. Universal Property and Casualty Insurance Company [347 So.3d 900 (Fla. 6th DCA 2023)], issued a ruling conflicting with Cole, finding the legislature did not intend to make the statute retroactive as evidenced by the effective date provided by the legislature after the Florida Supreme Court’s clear precedent in Menendez v. Progressive Express Ins. [35 So.3d 873, 876 (Fla. 2010)]. Subsequent to Hughes, the Third District Court of Appeals agreed with the Cole ruling, certifying conflict with Hughes in Cantens v. Certain Underwriters at Lloyd’s London [388 So.3d 242 (Fla. 3d DCA 2024)], and the Second District Court of Appeals agreed with the Hughes ruling in Buis v. Universal Property and Casualty Insurance Company [Fla. 2d DCA Sept. 6, 2024]. 

In the instant case, the Fifth District Court of Appeals agreed with Hughes and certified the conflict with Cole and Cantens. 

 

Legal Update for Florida Coverage & Property Litigation – December 2024 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 © 2024 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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