By: Jim Saunders ©2023 The News Service of Florida. All rights reserved
TALLAHASSEE — In an issue that might ultimately have to be sorted out by the Florida Supreme Court, an appeals court has sided with a Collier County homeowner in a dispute about a 2021 law that placed additional hurdles to filing lawsuits against property insurers.
The ruling last week by a panel of the 6th District Court of Appeal dealt with whether part of the law could apply to policies issued before the law took effect. The panel agreed with arguments by attorneys for homeowner Rebecca Hughes, whose home sustained water damage in 2019 but who did not file a lawsuit against Universal Property Insurance & Casualty Insurance Co. over the claim until August 2021 — about a month after the law took effect.
The panel said the disputed part of the law, which requires homeowners to give a 10-day notice before filing lawsuits against property insurers, did not apply retroactively to policies issued earlier.
In doing so, however, the panel acknowledged that its ruling conflicted with a decision in May by the 4th District Court of Appeal in a Broward County case. The 6th District panel took a step known as certifying a conflict with the 4th District ruling, a move that could help tee up the issue to go to the Supreme Court.
The Legislature and Gov. Ron DeSantis approved the 2021 law amid a crumbling property insurance market and complaints by insurers about lawsuits that were driving up costs. The part of the law requiring 10-day notices before lawsuits were filed gave insurers what last week’s ruling called a “safe harbor” to resolve claims before getting taken to court.
“Before (the law’s) enactment, an insurer had a single opportunity to evaluate and pay an insurance claim before being sued — when the insured made the claim,” said the main opinion shared by appeals-court Chief Judge Dan Traver and Judge Mary Alice Nardella. “If an insurer wrongfully denied a claim, the insured (customer) immediately possessed a cause of action against the insurance company for breach of the insurance policy, and the insured could immediately sue the insurance company to recover damages and attorneys’ fees. After (the law’s) enactment, an insurer now has a second opportunity to evaluate and pay a claim and to prevent the insured from asserting a cause of action for breach of the insurance policy.”
Collier County Circuit Judge Elizabeth Krier last year dismissed Hughes’ lawsuit, saying it did not comply with the 10-day notice requirement. Krier wrote that there was “clear legislative intent” for the 2021 law to apply retroactively.
But the appeals court overturned Krier’s decision, with the main opinion saying the text of the law “contains no clear evidence of legislative intent for retroactive application; there is no statutory language calling for application of the statute to insurance policies issued before the statute’s effective date.”
Also, the appeals court concluded the change made in the law was “substantive,” preventing it from being applied retroactively.
Judge Keith White agreed with the outcome of the main opinion but wrote a concurring opinion.
