Thought Leadership

The Second District Court of Appeals rendered an opinion finding that a cause of action must be dismissed without prejudice for failure to provide the statutorily required pre-suit notice (Notice of Intent to Initiate Litigation), including actions concerning declaratory relief where no monetary damages are being claimed.

Citizens petitioned for certiorari review of a trial court order denying its motion to dismiss the homeowner’s declaratory judgment action. Citizens argued dismissal was required because the homeowner failed to provide pre-suit notice through the Florida Department of Financial Services as mandated by section 627.70152, Florida Statutes. The pre-suit notice is a condition precedent which applies to residential or commercial property insurance policies per Section 627.70152. The trial court denied Citizen’s motion, concluding that pre-suit notice was not required because the homeowner was not seeking monetary damages and there was uncertainty concerning whether a coverage dispute existed.

Citizens provided coverage for the homeowner’s property including hurricane loss. After alleged hurricane damage to the insured property, Citizens determined coverage for the loss fell below the policy deductible and denied the claim. The homeowner disagreed, their adjuster finding the loss exceeded the applicable deductible. The homeowner demanded appraisal under the policy. The respective party’s appraisers agreed on a loss amount, but the homeowner refused to sign the Appraisal Award form, objecting to its language as imposing extracontractual conditions. Rejecting the appraisal award, the homeowner filed a declaratory judgment action seeking judicial determination of the form's enforceability and their rights under the policy, without seeking monetary damages.

On appeal, the homeowner raised issues concerning whether section 627.70152, Florida Statutes, requires pre-suit notice for declaratory judgment actions arising under residential property insurance policies when the plaintiff seeks no monetary damages. The Second District granted the petition and quashed the trial court's order.

The Second District Court held that section 627.70152 requires pre-suit notice for all suits arising under residential property insurance policies, including declaratory judgment actions that do not seek monetary relief. The court was particularly stressed that the phrase 'all suits' means all suits without exception. Applying principles of statutory interpretation, emphasizing that general terms like 'all' must be given their general meaning (Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020), quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). "Consequently, we `strive to determine the text's objective meaning through "the application of [the] text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued" (Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021), quoting Scalia & Garner, supra, at 33).

In making its decision, the Second District Court rejected the homeowners’ reliance on Bristol West Insurance v. MD Readers ,Inc., 52 So. 3d 48, 51 (Fla. 4th DCA 2010), noting that case involved a different statute requiring pre-suit notice before filing 'any action for benefits,' not the broader language of section 627.70152. The court also rejected the homeowner’s argument that their suit did not 'arise under' the policy, finding that resolution required interpretation of policy terms, making it clearly arise under the insurance contract.

The Second District Court granted Citizen’s Petition and the trial court order was quashed. The homeowners failed to provide the necessary notice and thus the case must be dismissed without prejudice.