Florida Supreme Court Rejects Retroactive Application of Statutory Property Insurance Presuit Notice Requirement

In Universal Property & Casualty Insurance Co. v. Hughes, the Florida Supreme Court held that Florida Statutes section 627.70152’s presuit notice requirement does not apply to an action for breach of a property insurance policy issued before the statute took effect, approving the underlying decision and disapproving previously issued contrary decisions by Florida district appellate courts.

The policyholder had a homeowners policy effective April 24, 2019, to April 24, 2020. She submitted a water damage claim in May 2019, which the carrier investigated and paid, but the policyholder maintained that the payment she received was insufficient, ultimately suing the insurer on August 4, 2021.

Section 627.70152 took effect on July 1, 2021—after the policy’s effective date but before the policyholder’s suit. Subsection 3(a) of the statute provides, in relevant part:

As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131.

The insurer successfully obtained dismissal in the trial court as a result of the lack of notice before filing suit, but Florida’s Sixth District Court of Appeal reversed, concluding that the statute did not apply retroactively. Other Florida district appellate courts split on this retroactive application question, with two districts permitting retroactive application and the remaining three districts rejecting it.

The Florida Supreme Court began with the general rule that substantive issues arising from insurance policies are governed by the statute in effect when the subject policy was executed. As the parties agreed that the policy issuance date, April 24, 2019, was the operative date, the carrier acknowledged that applying the 2021 statute to her lawsuit would be retroactive.

Under the analytical framework set forth in governing case law, the court first asked whether the legislature clearly intended retroactive application, as it is only where the intent is clearly expressed that courts should consider whether retroactivity would violate constitutional principles.

The court found that section 627.70152’s reference to “all suits” was not sufficient to clearly provide for retroactive application, finding that the “all suits” language identified the categories of cases and policies covered, rather than establishing the statute’s temporal scope.

Thus, the court’s decision rested on statutory silence: “The correct answer is to respect the Legislature’s choice not to clearly require retroactive application of the statute.”