Fourth District Court of Appeal Determines that Fla. Stat. § 627.70152’s Pre-Suit Notice Requirement Applies Retroactively, Suggesting an Implicit Circuit Split

Earlier this month, Florida’s Fourth District Court of Appeal held that Fla. Stat. § 627.70152’s pre-suit notice requirement applies retroactively to insurance policies issued before the statute’s effective date. The holding rests on the finding that the statutory requirement was procedural, rather than substantive.

In Herman Cole v. Universal Prop. & Cas. Ins. Co., No. 4D22-1054 (Fla. 4th DCA May 3, 2023), the plaintiff argued that the statutory notice requirement “impair[ed] [his] substantive rights,” and therefore could not apply retroactively. For this argument, he pointed to other statutory provisions triggered by the pre-suit notice requirement. For instance, the pre-suit notice provision gives rise to several obligations and options for the insurer, among which is a duty to respond to the notice within 10 business days. Fla. Stat. § 627.7152(4). The 2021 version of the statute that was at issue in Cole also prescribed the following penalties for non-compliance:

A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section . . ..

. . . .

if a court dismisses a claimant’s suit pursuant to subsection (5) [failure to comply with presuit notice], the court may not award to the claimant any incurred attorney fees for services rendered before the dismissal of the suit.

Fla. Stat. § 627.70152(5) & (8)(b).

To determine whether the notice requirement applied retroactively, the Fourth District used a two-step framework. Under the framework, a court must first ascertain whether the legislature intended for the statute to apply retroactively. If it finds a clear expression of such intent, the court then determines whether retroactive application would violate any constitutional principles. Specifically, the court focuses on “whether retroactive application of the statute ‘attaches new legal consequences to events completed before its enactment.’”

The Cole court determined that the legislature had clearly intended for the pre-suit notice requirement to apply retroactively. The court pointed to the statute’s introductory language, which provided that the statute “applies exclusively to all suits . . . arising under a residential or commercial property insurance policy . . ..” The court also quoted the language of the pre-suit notice requirement itself, inferring that the legislature must have intended retroactivity from what the provision noticeably failed to say. Particularly, the legislature had not included any language limiting the reach of the notice requirement to policies issued after the effective date.

Moving to the second step, the court determined that the statutory pre-suit notice requirement did not violate any constitutional principles; it was procedural and could therefore apply retroactively. According to the court, “[t]he notice provision is simply part of the ‘course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights . . ..’” The court noted that the various statutory options and obligations assigned to the insurer after the insured provides pre-suit notice were also “provisions related to process and procedure.” “None of these procedural provisions limit[ed] the [plaintiff’s] potential recovery or remedy in any way.”

Notably, the court held that retroactive application of the pre-suit notice requirement did not, as the plaintiff had argued, affect his right to attorney’s fees. The court agreed that “the statutory right to attorneys’ fees is . . . a substantive right.” Consequently, it recognized that Fla. Stat. §627.70152’s sub-section (8)—which barred recovery of fees incurred before dismissal for failure to provide the statutory notice—did indeed affect a substantive right. However, the court opined that the fact that “sub-section (8) [on attorney’s fees] is substantive [did] not mean that [the] pre-suit notice provision in sub-section (3)” could not be applied retroactively.” In other words, the notice requirement could be applied retroactively while a related provision could not.

While Cole primarily serves as guidance on whether Fla. Stat. § 627.70152’s notice requirement applies retroactively, the case also highlights the statute’s requirement that courts dismiss lawsuits filed without such notice. Cole reinforces the viability of a motion to dismiss based on this requirement at a time when trial courts have been reluctant to grant such motions.

More pressing, however, Cole creates an implicit circuit-split. In Security First Ins. Co. v. Jerry Fields, 338 So. 3d 872 (Fla. Dist. Ct. App. 2022), the Second District Court of Appeal seems to have come to a different conclusion on the retroactivity of Fla. Stat. § 627.70152’s notice provision. Notably, the Second District chose not to author a detailed opinion when it per curiam denied Security First’s petition for writ of certiorari; the petition had sought review of the trial court’s denial of its motion to dismiss based on the subject provision. The Second District’s order did, however, cite Menendez v. Progressive Express Ins. Co., Inc., 35 So. 3d 873 (Fla. 2010)—a case involving a statutory amendment that also created a pre-suit notice requirement—which the Fourth District expressly distinguished in Cole. The citation to Menendez suggests that the Second District believed the pre-suit notice provision affected substantive rights and was therefore impermissibly retroactive. Had the Second District simply denied certiorari without further comment, a reasonable argument could have been made that the lower court’s decision was simply not ripe for an interlocutory appeal. But the Second District’s reference to Menendez hints at a more substantive ruling in the background.

While Fields and Cole suggest an implicit conflict between districts, that conflict cannot be presented to the Florida Supreme Court for resolution since Fields lacks a written opinion.¹ Until an explicitly conflicting opinion following Fields emerges, the implicit conflict will not be decided by the Florida Supreme Court.