Professional Liability

The plaintiffs’ complaint was dismissed due to their failure to comply with the pre-suit notice requirement set forth in Fla. Stat. § 627.70152(3). As a result, the plaintiffs appealed and argued the trial court erred by applying the statute retroactively to an action based on a homeowners’ insurance policy issued before the statute’s effective date of July 1, 2021. 

In order to evaluated whether it is permissible to apply a statute retroactively, the court determined it must apply the following two-pronged test: (1) “whether the Legislature intended for the statute to apply retroactively” and (2) “if such an intent is clearly expressed, … whether retroactive application would violate any constitutional principles.” 

The Second District Court of Appeal first looked to the language of the statute, which it determined did not contain any indication it applied to insurance policies issued before the enactment of the statute. Conversely, the statute does contain an enactment date, which can be used as evidence to rebut intent for retroactive application. 

The defendant’s argument regarding the inclusion of language of “all suits” was not persuasive. First, the “all suits” language “informs the reader that the statute only applies to suits involving plaintiffs who are not ‘assignee[s]’ and that arise under ‘residential or commercial property insurance polic[ies]’ and the statute excludes suits involving plaintiffs who are assignees and that arise under other insurance policies such as automobile or personal injury policies.” Additionally, there is nothing to indicate the term “all suits” means temporally, all policies which both pre-date and post-date the enactment of the statute. 

Based on the aforementioned test, the district court concluded that the required legislative intent was “lacking,” thus, the statute cannot be applied retroactively. 

There is now a further split between Florida’s appellate courts regarding this issue, with the Second and Sixth ruling the statute cannot be applied retroactively, while the Third and Fourth ruling it can.  

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_{Case Law Alerts, 4th Quarter, October 2024 is prepared by Marshall Dennehey to provide information on recent 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. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}