Appeals Court Reverses Verdict, Finds Trial Court Erred in Denying Motion to Dismiss and In Finding Late Notice Defense Was Waived When Alternative Policy Exclusions Were Raised in the Same Pleading
The Third District Court of Appeal reversed the trial court’s order denying the insurance company’s motion to set aside a jury verdict in favor of the insured. Prior to trial, the trial court denied the insurance company’s motion to dismiss. During the trial, the trial court granted a directed verdict as to the late notice defense raised by the insurance company. The trial court ruled that the defense had been waived by the assertion of alternative policy exclusions in the same pleading. The appellate court found both the denial of the motion to dismiss and the granting of a directed verdict on the late notice defense to be error.
On September 2, 2020, the insured reported that her property had been damaged by Hurricane Irma on September 10, 2017. The claim was denied by the insurance company because the insured failed to timely report the loss. The insured then filed a declaratory judgment action, which the insurance company moved to dismiss based upon the insured’s failure to plead that she had provided a pre-suit notice of intent to initiate litigation. The trial court denied the motion to dismiss, finding that the statute requiring the notice of intent could not be applied retroactively to a policy issued before enactment of the statute.
The insurance company then filed an answer, asserting affirmative defenses for late notice and for policy exclusions, including wear and tear and faulty workmanship. At trial, the trial court granted a directed verdict as to the late notice defense, finding that it was waived by the inclusion of the policy exclusion affirmative defenses in the answer.
The appellate court found the trial court erred in denying the motion to dismiss. The court reiterated its holding in Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242, 246 (Fla. 3d DCA 2024), stating that the pre-suit notice of intent to initiate litigation was procedural in context and, therefore, applied to all policies, regardless of inception date.
The appellate court also found the trial court erred in granting a directed verdict as to the late notice defense raised by the insurance company. The court stated that parties could plead multiple affirmative defenses in the alternative. Since the insurance company had properly raised late notice at the outset, it was not precluded from raising the defense at trial, despite pleading alternative affirmative defenses related to policy exclusions. The court found that there was sufficient evidence in the record to support the late notice defense and, therefore, reversed the trial court.
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