Professional Liability

In March, the Third District Court of Appeals affirmed dismissal of a complaint for its failure to comply with Florida Statute § 627.70152. Amongst other things, this statute requires an claimant to provide a formal notice of intent to initiate litigation to the Department of Financial Services (DFS) prior to filing a lawsuit. Florida Statute § 627.70152 further provides a detailed list of information that must be contained in the notice to DFS. 

Section 627.70152 went into effect on July 1, 2021. Thereafter, in August 2021, Sanchez filed a lawsuit against her insurance carrier, Security First Insurance Company, alleging breach of her homeowner’s insurance contract. However, Sanchez did not provide the required notice to DFS before filing suit. As a result, Security First moved to dismiss the complaint for its failure to comply with the statute’s pre-suit notice requirement. The issue in this case is whether the new statutory condition—filing a notice of intent to initiate litigation with DFS prior to an insured’s right to sue the property insurer for an alleged breach of the insurance contract—can be applied to an insurance policy already in existence prior to the enactment of the 2021 statute in light of Florida’s prohibition on retroactive application of statutes where substantive rights under an existing contract would be affected.

At a hearing on Security First’s motion to dismiss, Sanchez argued that Florida Statute § 627.70152 should not apply because Sanchez’s homeowner’s insurance policy contract was in effect before Florida Statute § 627.70152. Sanchez further argued that Florida Statute § 627.70152 could not retroactively apply to Sanchez’s homeowner’s insurance policy because it would impermissibly impact her substantive rights under an insurance policy in effect before section 627.70152 became law. The trial court disagreed and granted Security First’s motion and dismissed the case. Sanchez appealed the lower court’s decision to the Third District Court of Appeals. However, upon appeal, the Third District affirmed the lower court’s ruling. The Third District cited its own prior decision in Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 14, 2024) and held that section 627.70152 is procedural in nature and does not affect substantive rights. Therefore, the court held that Florida Statute § 627.70152 applies to all insurance policies, regardless of the date of inception. 

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_{Legal Update for Florida Coverage & Property Litigation – May 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.}