Presented by the Insurance Services – Coverage and Bad Faith Litigation Practice Group

Sixth District Court of Appeals Says Fourth District Got It Wrong: Florida’s Pre-Suit Notice Requirement Does Not Apply Retroactively

In November 2023, the Sixth District Court of Appeal of Florida, in direct conflict with the Fourth District Court of Appeal of Florida, found that the pre-suit notice as mandated by Florida Statute 627.70152 does not apply retroactively to insurance policies entered into before the statute’s effective date.

The Sixth District’s ruling in the case of Hughes v. Universal Property & Casualty Insurance Company focused on the retroactive applicability of a statutory pre-suit notice requirement enacted after an insurance policy was issued, but before a breach of contract lawsuit regarding that policy was filed.

In Hughes, the insured, Rebecca Hughes, had sued Universal Property & Casualty Insurance Company for breach of her property insurance policy. However, she did not file the mandatory pre-suit notice as required by Florida Statute Section 627.70152. As a result, Universal filed a motion to dismiss her lawsuit based on this failure. The lower court had granted the insurance company’s motion to dismiss based on Hughes’ failure to file this pre-suit notice, and the insured appealed the decision.

Hughes contended on appeal that the trial court had erred in requiring her to file the pre-suit notice before filing suit. She argued that the statute requiring the pre-suit notice was a substantive statute and could, therefore, not apply retroactively to a claim under an insurance policy which was entered into before the statute’s enactment. Hughes relied upon the precedent set by the Florida Supreme Court in Menendez v. Progressive Express Insurance Company to support this argument.

The Sixth District Court of Appeal’s opinion reversed the lower court’s decision, holding that Florida Statute Section 627.70152 does not apply retroactively to an insurance policy entered into before the statute’s effective date. The court concluded that there was no clear evidence of legislative intent for the statute to apply retroactively and that the statute was substantive in nature, therefore, making its retroactive application unconstitutional. The case was remanded to the trial court for further proceedings consistent with the Appellate Court’s opinion.

The Hughes court noted that the ruling clearly differs from a decision handed down from the Fourth District earlier this year in another Universal case, Cole v. Universal Property & Casualty Insurance Co. The Cole case and others like it have looked at retroactivity differently and come to opposite conclusions. As such, the Hughes court asked the Florida Supreme Court to settle the issue. While a definitive ruling from the Florida Supreme Court could settle the issue, because there were relatively only a small number of claims filed before the 2021 statute took effect still pending, the court may decline to take up the issue.


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