CopyCited 15 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 50, 2012 WL 224104, 2012 Fla. LEXIS 195
...oactively. See id. at 137 n. 2. However, the trial court granted Universal’s motion to apply sections 627.7065,
627.7072, and
627.7073 retroactively, reasoning that the statutes were procedural. See id. at 137 n. 2. 1 Universal also moved to apply section
90.304, Florida Statutes (2007), and requested that the jury be instructed that the presumption of correctness as articulated in
627.7073(l)(c) was a rebuttable presumption affecting the burden of proof....
...Throughout the trial, Warfel repeatedly asserted that the presumption created in section
627.7073(l)(c) was a “vanishing” or “bursting bubble” presumption governed by section
90.303, Florida Statutes (2005), whereas Universal contended that the presumption in that statute should be governed by section
90.304 because it implements public policy relating to a sinkhole insurance crisis....
...er with the burden to prove that a claimed loss is not covered.” Id. (citing Wallach v. Rosenberg,
527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988)). Finally, the court noted that the Legislature “knows how to create burden-shifting presumptions under section
90.304,” but did not do so in section
627.7073(l)(c)....
...proof, a new trial is required.” Id. at 140. Further, the court certified the following question to this Court as one of great public importance: DOES THE LANGUAGE OF SECTION
627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION
90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION
90.303? Id. This review followed. BACKGROUND The central question here is whether the burden shifting presumption articulated in section
90.304 of the Florida Evidence Code applies to the presumption provided in section
627.7073(l)(c)....
...r otherwise established. (2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable. (3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate. (4) Sections
90.301-
90.304 are applicable only in civil actions or proceedings....
...ovided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. Section
90.304 Presumption affecting the burden of proof defined.— In civil actions, all rebuttable presumptions which are not defined in section
90.303 are presumptions affecting the burden of proof....
...Presumptions “established primarily to facilitate the determination of the particular action in which the presumption is applied” were governed by section
90.303 and followed the Thayer-Wigmore approach. Presumptions established to implement a particular public policy were governed by section
90.304 and followed the Morgan-McCormick view....
...ng presumption, or a ‘bursting bubble’ presumption. Once evidence rebutting the presumption is introduced, the presumption disappears and the jury is not told of it.” Id. at 31 (emphasis supplied). With regard to the presumption articulated in section 90.304, this Court stated: When a presumption shifts the burden of proof, the presumption remains in effect even after evidence rebutting the presumption has been introduced and the jury must decide if the evidence is sufficient to overcome the presumption....
...1984) (e.g., presumptions of the validity of marriage, sanity in civil cases, legitimacy of a child born in wedlock, the correctness of judgments). Id. at 31-32 (emphasis supplied). Although not stated explicitly, in Bonanno this Court confirmed that section
90.303 was representative of the Thayer-Wig-more approach and section
90.304 of the Morgan-McCormick view, and that the Florida Evidence Code embraced California’s system of handling presumptions....
...The Legislature determines that creating a complete electronic database of sinkhole activity serves an important purpose in protecting the public and in studying property claims activities in the insurance industry. Ch.2005-111, § 18, Laws of Fla. ANALYSIS The question of whether the presumption articulated in section
90.304 of the Florida Evidence Code applies to the presumption created in section
627.7073(1)(c) of the claims process statute involves the application of a provision of the Florida Evidence Code and is a pure question of law that is reviewed de novo....
...ional geologist from liability for title defects and the insurance companies from claims of improper denials of claims. Accordingly, because the sinkhole statutes do not apply to the litigation context, the trial court’s application of section *58
90.304 to section
627.7073(l)(c) and the treatment of this statute as evidentiary in nature in this case was incorrect....
...ow in accepting or denying claims. Plain Language of Section
627.7073(1) (c) Even if this Court were to hold that section
627.7073(l)(c) is applicable in the context of other litigation, the plain language of the statute precludes the application of section
90.304 to the presumption created in section
627.7073(l)(c), which provides: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the fi...
...approach, the Thayer-Wigmore rule, codified under Florida law section
90.303, governs in Florida. This holding is supported by the notion that expressions of clear social policy are explicitly stated. Specifically, when the Legislature intends that section
90.304 apply to a statutory presumption, it knows how to articulate that intent....
...(2010) (“If an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of *59 paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by section
92.525(2), creates a rebuttable presumption, as defined by section
90.304-.... ” (emphasis supplied)); §
409.256(10)(d), Fla. Stat. (2010) (“For purposes of this section, a statistical probability of paternity that equals or exceeds 99 percent creates a presumption, as defined in section
90.304, that the putative father is the biological father of the child.” (emphasis supplied)). Generally, when Florida courts have held that the Legislature “intended” to incorporate section
90.304 into a statutory presumption, the statute in question explicitly provides for such an application....
...5th DCA 2004) (citing §
733.107(2), Fla. Stat. (2002)); Ferguson v. Williams,
566 So.2d 9, 11 (Fla. 3d DCA 1990) (citing §
742.12, Fla. Stat. (1989)); Jones v. Crawford,
552 So.2d 926, 927-28 (Fla. 1st DCA 1989) (citing §
742.12(1), Fla. Stat. (1987)). Florida courts have applied section
90.304 to a statutory presumption, absent explicit language in the statute, in the interpretation of only three statutes: section 658.56(2), Florida Statutes (1987), (which has since been repealed), section
61.075(5)(a)5, Florida Statutes (1997), and section
112.533, Florida Statutes (Supp....
...r and convincing proof of a contrary intent. Id. § 658.56(1)-(2), repealed by Laws of Fla.1992 ch. 92-303, § 189. The Second District held that “[t]he banking statute ... creates a presumption which shifts the burden of proof to the estate under section
90.304, Florida Statutes (1987), and increases the burden to the clear and convincing standard.” Combee,
583 So.2d at 711 (citing Slomowitz v. Walker,
429 So.2d 797 (Fla. 4th DCA 1983)). Although the Second District in that case did not conduct an analysis with regard to whether section
90.303 or section
90.304 governed the presumption in question, it is clear on the face of the statute involved there that the Legislature intended section
90.304 to apply....
...n language of the statute. Second, the presumption articulated in section
627.7073(l)(c) was enacted in 2005, long after the enactment of the Florida Evidence Code. The Legislature had the opportunity to include language requiring the application of section
90.304, had it intended for this evidentiary section to apply. Accordingly, Combee is clearly distinguishable from the facts presently before the Court and not controlling here. Another instance of a Florida court applying section
90.304 to a statutory presumption absent explicit language in the statute occurred with regard to the interpretation of section
61.075(5)(a)5, Florida Statutes (1997). In Heim v. Heim,
712 So.2d 1238, 1239 (Fla. 4th DCA 1998), the Fourth District held that section
90.304 governs the presumption articulated in that statute....
...be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity. In that statute, although the Legislature did not explicitly indicate that section
90.304 applies, it stated that any party that makes a claim to the contrary bears the “burden of proof.” Here, the Legislature did not expressly provide a directive with regard to whether it intended the presumption to be one affecting the burden of producing evidence, and therefore governed by section
90.303, or one affecting the burden of proof, governed by section
90.304. The final instance of a Florida Court applying section
90.304 to a statutory presumption absent explicit language in the statute occurred with regard to the interpretation of section
112.533, Florida Statutes (Supp.1990)....
...⅛5 days after the complaint is. filed. §
112.533(2)(b), Fla. Stat. (Supp.1990) (emphasis supplied.) Judge Farmer, writing for the majority, stated: We entirely agree with appellee’s argument that the 45-day presumption is of the kind covered by section
90.304, Fla....
...down. Insurance Company of the State of Pennsylvania v. Estate of Guzman,
421 So.2d 597, 601 (Fla. 4th DCA 1982). Barfield,
579 So.2d at 318 . The Fourth District, however, failed to provide any rationale or reasoning to support its conclusion that section
90.304 was applicable to section
112.533(2)(b). In light of the fact that this decision stands alone in its *61 application of section
90.304 to a statutory presumption absent any language in the underlying statute supporting such an application, we conclude that Barfield is not persuasive. Universal’s reliance on Caldwell and City of Coral Gables v. Brasher,
132 So.2d 442 (Fla. 3d DCA 1961), is misguided. Universal relies on these cases to support the proposition that Florida courts have applied section
90.304 to a statutory presumption absent any indication that the Legislature intended for that evidentiary provision to apply....
...See Ins. Co. of State of Pa. v. Estate of Guzman,
421 So.2d 597, 601 (Fla. 4th DCA 1982). For section
627.7073(l)(c), Florida Statutes (2005), the statute at issue, the Legislature certainly knew how to create a burden shifting presumption pursuant to section
90.304, but chose not to do so. Finally, it should be noted that this Court has applied section
90.304 to judicially created presumptions under very limited factual circumstances....
...ies as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship. The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created....
...Beal did not involve the interpretation of a statutorily created presumption; rather, it involved the interpretation in a common law approach in banking relationships that would impact the stability of the banking industry and accounts. The application of section 90.304 to a presumption in banking relationships is not applicable here....
...The Court noted that the presumption in banking relationships in question was an ex *62 pression of social policy, and therefore should affect the burden of proof. Legislative History of Section
627.7073(l)(c) Universal asserts that section
627.7073(l)(c) is an expression of social policy and should therefore be governed by section
90.304. Specifically, Universal asserts that applying section
90.304 to the sinkhole statutes furthers two policy goals: (1) the reduction of the number of disputed sinkhole claims in Florida; and (2) the reduction of the overall costs associated with sinkhole losses in Florida....
...hole statutes, and the legislation is specifically designed to protect the public during the claims process, we find this argument to be without merit. Even if the sinkhole statutes did advance social policies, they do not warrant the application of section 90.304....
...ing of a statute, it did not do so here. See, e.g., ch. 93-401, § 1, Laws of Fla. Indeed, the Legislature did not provide such language in the bill, the statute, or even the staff analyses associated with the bill. Section
90.106 The application of section
90.304 to section
627.7073(l)(c), as articulated at trial, was also inconsistent with section
90.106 Florida Statutes (2005), which provides that “[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence,...
...for intelligent review on appeal.” See also Aills v. Boemi,
29 So.3d 1105, 1109 (Fla.2010) (citing Castor); Williams v. State,
414 So.2d 509, 511 (Fla.1982) (citing Castor). Here, Universal filed a pretrial motion to establish the applicability of section
90.304 and War-fel filed a response and objected to that position. At a pretrial hearing, Warfel articulated his opposition to the application of section
90.304 to this case, and explicitly urged the court to adopt section
90.303. The trial judge ultimately ruled in favor of Universal with regard to the application of section
90.304....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 6572, 2010 WL 1874367
...Universal contended that the 2005 amendments and enactments did not impair existing contract rights or obligations. Alternatively, Universal argued that any impairment was overridden by the State's interest in resolving a sinkhole insurance claim crisis. Universal also asked the trial court to determine that section
90.304, Florida Statutes (2007), allowed a jury instruction based on section
627.7073(1)(c) as a rebuttable presumption affecting the burden of proof....
...[3] Universal retained its experts under section
627.707(2) to conduct the testing required by section
627.7072 and to issue a *138 report in accordance with section
627.7073. This report bears the presumption of correctness. Universal also contended that section
627.7073(1)(c) created a section
90.304 presumption because it implemented public policy relating to a sinkhole insurance crisis....
...See Wallach v. Rosenberg,
527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988). We must assume that the legislature *139 was aware of this fact when it enacted section
627.7073(1)(c). Moreover, the legislature knows how to create burden-shifting presumptions under section
90.304....
...n v. Williams,
566 So.2d 9, 11 (Fla. 3d DCA 1990) (explaining that the statutory presumption of paternity under section
742.12(1), Florida Statutes (1989), is a rebuttable presumption and the legislature specifically provided that it was governed by section
90.304 of the evidence code)....
...In contrast, the legislature has not declared that the presumption in section
627.7073(1)(c) is a public policy-related presumption. Nor did the legislature specifically provide that section
627.7073(1)(c) was to operate as a burden-shifting presumption under sections
90.302(2) or
90.304....
...However, because our ruling may affect insurance claims for sinkhole losses throughout Florida, we certify the following question to the supreme court as one of great public importance: DOES THE LANGUAGE OF SECTION
627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION
90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION
90.303....
...a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. (Emphasis added.) Section
90.304 then provides: Presumption affecting the burden of proof defined.In civil actions, all rebuttable presumptions which are not defined in s.
90.303 are presumptions affecting the burden of proof. (Emphasis added.) Section
90.304 applies to presumptions implementing public policy and, therefore, applies in this case....
...(holding that presumption could be overcome only by clear and convincing evidence and that, in the absence of such cogent proof, public policy must be given effect). The majority points out that the legislature knows how to expressly create burden-shifting presumptions under section 90.304....
...lve an issue of retroactivity. Although Mr. Warfel takes issue with the latter ruling, we find no error and discuss the matter no further. [3] The legislature made minor changes to section
627.7073(1)(c) in 2006, none of which are relevant here. [4]
90.304 Presumption affecting the burden of proof defined.In civil actions, all rebuttable presumptions which are not defined in s....
