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.

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. 

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