Florida/Georgia Personal Injury & Workers Compensation

...FACTS This action arises from an appeal to the United States Court of Appeals for the Eleventh Circuit wherein the plaintiff-ap-pellee and cross-appellant Chalfonte Condominium Apartments Association, Inc. (Chalfonte) appealed the dismissal of claims under section 627.701(4)(a), Florida Statutes (2009), and the denial of a motion to enforce execution of the judgment, and the defendant-appellant and cross-appellee QBE Insurance Corporation (QBE) appealed the denial of motions for a new trial and for judgment as a matter of law....

...In the district court, Chalfonte raised claims for declaratory judgment (Count I), breach of contract — failure to provide coverage (Count II), breach of contract — breach of the implied warranty of good faith and fair dealing (Count III), and violation of Fla. Stat. § 627.701 (4)(a) (Count IV). The district court dismissed Count IV of the complaint, concluding that § 627.701 does not provide a private right of action, and then held a jury trial on Chalfonte’s remaining claims....

...($2,000,000 of which was awarded for “ordinance or law” coverage) and $271,888.68 for breach of the implied warranty of good faith and fair dealing, for a total award of $8,140,099.68. The jury also concluded that the Policy did not comply with § 627.701(4)(a)....

...rial, but granted QBE’s motion to amend the judgment by applying the hurricane deductible contained in the Policy despite the jury’s conclusion that the Policy did not comply with the requirements for hurricane deductible provisions set forth in § 627.701(4)(a)....

...subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155 ? 8. May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701 (4)(a)? 4. Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701 (4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable? 5....

...Since we have answered the first certified question in the negative, the second certified question is rendered moot. Accordingly, we address the third and fourth certified questions, which both in *550 volve the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes....

...2 Chalfonte raised a claim alleging a violation of this section by QBE. The trial .court dismissed that claim, concluding that the statute does not provide a private right of action. Despite the dismissal of the claim, the jury concluded that the insurance policy did not comply with section 627.701 (4)(a)....

...Following the jury trial, the district court granted QBE’s motion to amend the judgment by applying the hurricane deductible in the policy. The application of the hurricane deductible reduced the award to Chalfonte by $1,605,653. On appeal, Chalfonte argued that the district court erred in dismissing its section 627.701(4)(a) claim....

...page. However, the notice did not comply with the statutory requirements in two ways: the font used was 16.2-point instead of 18-point, and the statement contained the word “windstorm” instead of “hurricane.” Our determination as to whether section 627.701(4)(a) creates a private cause of action for its violation is a question of statutory interpretation....

...In determining the meaning of the language used, the court must look not only to the words themselves but also to “the context in which the language lies.” Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). There is nothing in the text of section 627.701(4)(a) from which one can deduce that the Legislature intended an insured to have a private right of action against an insurer for failure to follow the notice requirements....

...Nor does the legislative history contain any guidance of whether the Legislature intended to create a private cause of action for the section’s violation. In fact, there is hardly any mention of this section in the legislative history. It was originally codified as section 627.701(3)(c), which required the notice language in reference to “windstorms.” Ch....

...e marketplace” and restructuring the insurance system to “ensure adequate hurricane catastrophe insurance at an affordable price.” Fla. S. Comm, on Banking & Ins., CS/SB 2314 (1996) Staff Analysis 1, 11 (Apr. 5, 1996). Other subsections of section 627.701 also offer clues as to the context of subsection (4)(a). Section 627.701(6)(a) expresses the legislative intent “to encourage higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in this state and as a means of limiting the impact of rapidly changing hurricane insurance premiums.” Section 627.701 (2)(a) provides that a property insurer may not issue an insurance policy containing a hurricane deductible provision unless the Department of Insurance determines that the deductible provision is clear and unambiguous....

...Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA1990)). Based upon the above, we answer the third certified question in the negative and find that an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a). Chalfonte argues that QBE’s failure to strictly comply with the notice requirements specified in section 627.701(4)(a) should render the hurricane deductible void and unenforceable. In his analysis of this issue, Judge Middlebrooks correctly noted that the Legislature did not specify any penalty or consequence for failure to comply with the requirements of section 627.701(4)(a)....

...and provisions as would have applied had such policy, rider, or endorsement been in full compliance ■with this code.”). Thus, the Insurance Code supports the conclusion that the Legislature is perfectly capable of crafting an express penalty for section 627.701(4)(a) and that there is no good reason for the courts to select one penalty over another. Chalfonte, 526 F.Supp.2d at 1257 ; see also RTG Furniture Corp. v. Indus. Risk Insurers, 616 F.Supp.2d 1258, 1267 (S.D.Fla.2008) (“[I]n the absence of an express penalty attached to this statute [section 627.701(4)(a) ] which prescribes the manner in which property insurers are to alert their insureds that the policy contains a separate hurricane deductible, the court is not at liberty to supply one.”)....

...Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989) with Prida v. Transamerica Ins. Fin. Corp., 651 So.2d 763 (Fla. 3d DCA 1995). In Roberts , the First District declared void a pokey’s coinsurance clause because it did not comply with the requirements of section 627.701(1)....

...Second, the hurricane deductible notice statute had never included a penalty provision as the coinsurance statute in Roberts did. Third, the coinsurance statute at issue in Roberts was not the coinsurance notice provision that was also included in section 627.701(4)(a)....

...comply with the terms of the aforementioned statute”). Based on the above analysis, we answer the fourth certified question in the negative and find that an insurer’s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompli-ant hurricane deductible provision in an insurance policy void and unenforceable, because the Legislature has not provided for this penalty....

...Specifically, we conclude that under Florida law (1) first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an insurer’s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompli-ant hurricane deductible provision in an insurance policy void and unenforceable as the Legislature has not provided for this penalty; and (4) a contractual provision mandating payment of benefits upo...

...All Covered Causes of Loss except as listed below Windstorm and Hail $33,712. NOTES [1] A copy of this form as it appeared in the record is included with this opinion as an appendix. [2] Insurance Service Office form number CP 00 10 06 95. [3] We note that section 627.701, Florida Statutes (1997), which places certain restrictions upon deductible provisions specific to hurricane damage subject to enforcement by the Department of Insurance, does not apply to the contract of insurance in this case....

...on Banking & Ins., CS for SB 1486 (2005) Staff Analysis and Economic Impact Statement 1-7 (Mar. 9, 2005) (on file with comm.), available at http://www.flsenate. gov/data/session/2005/Senate/bills/billtext/pdf/s1486c1.pdf (discussing statutory changes to section 627.701, Florida Statutes, in analysis performed prior to floor amendment to Senate Bill 1486 adding changes to section 627.702)....

...As pleaded, however, Farm Bureau's complaint admits the possibility that wind may have caused forty-nine per cent of the damage. At the lower end of the spectrum — where a covered peril causes only minor damage, the deductible — deductibles in "hurricane" policies are strictly regulated, see § 627.701, Fla....

...Florida Peninsula Insurance Co., 99 So.3d 502, 504 (Fla. 3d DCA 2011), the Third District Court of Appeal concluded that Florida Peninsula Insurance Company was not required by either its replacement cost homeowner’s insurance policy or the applicable provisions of section 627.7011, Florida Statutes (2008), to pay Amado Trinidad, its insured, costs for a general contractor’s overhead and profit because Trinidad did not repair or contract to repair the damage to his home....

...be required to pay costs for a general contractor’s overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property. Because section 627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer’s obligation to make payment, the insurer was not authorize...

...the policy, Florida Peninsula was required to pay only costs actually spent or costs Trinidad became contractually obligated to spend to repair the damage to his home. Id. at 504 . In addition, the Third District rejected Trinidad’s assertion that section 627.7011(3), Florida Statutes (2008), which required the insurer to pay “replacement costs without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling,” altered its analysis. Trinidad, 99 So.3d at 505 (quoting § 627.7011(3), Fla....

...se Trinidad had not actually incurred those costs. Trinidad, 99 So.3d at 505 . Trinidad contends that the Third District’s conclusion was erroneous for two principal reasons. First, he asserts that the Third District erred in its interpretation of section 627.7011, which requires payment of replacement costs without holdback of depreciation, whether or not the insured replaces or repairs the damaged property....

...tor for the repairs. We now determine if the applicable statute or policy permitted Florida Peninsula to withhold payment of those particular replacement costs until Trinidad actually incurred them. To answer this question, we first consider whether section 627.7011 provides authority to an insurer for not requiring payment of overhead and profit because those costs were not actually incurred. II. Section 627.7011 When construing a statute, this Court attempts to give effect to the Legislature’s intent, looking first to the actual language used in the statute and its plain meaning....

...“When considering the meaning of terms used in a statute, this Court looks first to the terms’ ordinary definitions^ which] ... may be derived from dictionaries.” Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 214 (Fla.2009). The 2008 version of section 627.7011, the applicable statutory provision for the period of time during which Trinidad incurred his loss, provided in relevant part as follows: (3) In the event of a loss for which a dwelling or personal property is insured on the basis of...

...bility shown on the policy declarations page; (b) The reasonable and necessary cost to repair the damaged, destroyed, or stolen covered property; or (c) The reasonable and necessary cost to replace the damaged, destroyed, or stolen covered property. § 627.7011, Fla. Stat. (2008) (emphasis added). 3 *440 Both Trinidad and Florida Peninsula assert that the plain language of section 627.7011, as it existed in 2008 at the time of Trinidad’s covered loss, is clear, but they disagree about the effect of the statute on the issue in this case. Trinidad argues that, because section 627.7011(3) states that replacement costs must be paid regardless of whether the insured actually replaces or repairs the damaged property, insurers are not permitted to hold back any portion of the replacement cost payment contingent on the insured actually incurring a particular cost....

...The statute does not require payment of profit and overhead which have not been incurred nor are likely to be incurred.”). We conclude that the Third District’s statutory construction analysis was flawed. For property “insured on the basis of replacement costs,” section 627.7011(3) has two primary objectives....

...First, the statute requires insurers to pay the replacement cost of a covered loss irrespective of whether the insured actually repairs or replaces the damaged property. Second, the statute requires that depreciation not be withheld pending the actual repair. In other words, pursuant to section 627.7011(3), it is immaterial in a replacement cost policy whether the damaged structure is replaced or repaired; that factor simply does not affect the statutory mandate as it would if payments were being made on an actual cash value basis....

...roperty if the insured decides to do so. Because we have concluded that overhead and profit are replacement costs where the insured is reasonably likely to need a general contractor for the repairs, it is clear that, as with other replacement costs, section 627.7011(3) does not permit an insurer to withhold overhead and profit pending actual repair. Requiring the insurer to pay overhead and profit regardless of whether the insured actually repairs the property is also consistent with section 627.7011(6), which provides that the insurer may limit its liability to the “reasonable and necessary cost” to repair or replace the damaged property....

...isions and construe related statutory provisions in harmony with one another.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007) (quoting Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla.2002)). Although section 627.7011(3) provides that an insurer must pay replacement costs, section 627.7011(6) provides that the insurer can limit its liability to those costs “reasonable and necessary” to the replacement or repair....

...Therefore, *441 reading these two sections together provides that costs “reasonable and necessary” to the repair are included in the replacement costs the insurer is statutorily required to pay, regardless of whether the property is repaired. Accordingly, if the insured is unlikely to incur overhead and profit, section 627.7011(6) would allow the insurer to withhold payment of those costs consistent with section 627.7011(3) because they are not “reasonable and necessary” to the repair. See § 627.7011(6), Fla....

...This logically follows because, if the insured is not reasonably likely to incur overhead and profit in repairing the damaged property, then overhead and profit are not replacement costs of the insured’s covered loss. On the other hand, if overhead and profit are going to be “reasonable and necessary” to the repair, section 627.7011(3) would mandate their payment as replacement costs....

...Simply put, overhead and profit are no different than any other costs of a repair that the insured is reasonably likely to incur, all of which are considered replacement costs and are not actually incurred until the repair is made — a requirement not imposed by section 627.7011. Such an interpretation of replacement cost insurance — that is, excluding all costs until they are actually incurred — would in actuality render the coverage meaningless. We therefore hold that the Third District erred in concluding that section 627.7011 does not require the insurer to include overhead and profit in a payment based on replacement costs simply because overhead and profit have not been incurred....

...s, was the applicable provision, Florida Peninsula would not have been required to pay Trinidad anything because Trinidad did not actually spend anything on repairs. An interpretation of the policy that permitted such an outcome would be contrary to section 627.7011, which requires payment of replacement costs regardless of whether the insured replaces or repairs the property, and would therefore be unenforceable....

...CONCLUSION For the reasons set forth above, we hold that replacement cost insurance includes overhead and profit where the insured is reasonably likely to need a general contractor for repairs. We therefore conclude that the Third District erred in determining both that the 2008 version of section 627.7011 and the insurance policy itself permitted Florida Peninsula to withhold payment of overhead and profit because Trinidad had not actually incurred those costs....

...nably likely to need a general contractor for the repairs that encompass his covered loss. It is so ordered. LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs. . The 2008 version of section 627.7011 is the applicable version in this case because that is the version of the statute that was in effect when Trinidad incurred his loss. Section 627.7011, however, has since been amended, most recently in 2011....

...United Policyholders, a nonprofit organization that provides information and advocates for insurance consumers, filed an amicus curiae brief in support of Trinidad. . Although the 2008 version of the statute is the relevant version governing our analysis in this case, section 627.7011 has since been amended to provide that the insurer must pay "at least the actual cash value of the insured loss, less any applicable deductible,” except in *440 the case of a "total loss of a dwelling,” in which case "the insurer shall pay the replacement cost coverage without reservation or holdback of any depreciation in value.” § 627.701 l(3)(a), Fla....

...dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time. In addition, we must decide whether Florida law recognizes a private right of action under Fla. Stat. § 627.701(4)(a) and whether an insurer’s failure to comply with § 627.701(4)(a) renders a hurricane deductible void and unenforceable....

...2,000,000 of which was awarded for “ordinance or law” coverage) and $271,888.68 for breach of the implied warranty of good faith and fair dealing, for a total award of $8,140,099.68. The jury also concluded that the Policy did not comply with § 627.701(4)(a). The district court entered a final judgment in favor of Chalfonte in the amount of $8,140,099.68, with post-judgment interest accruing in accordance with 4 28 U.S.C....

...l, but granted QBE’s motion to amend the judgment by applying the hurricane deductible contained in the Policy despite the jury’s conclusion that the Policy did not comply with the requirements for hurricane deductible provisions set forth in § 627.701(4)(a). Chalfonte also filed a motion to amend the final judgment....

...that certification of these questions to the Supreme Court of Florida is appropriate. 11  B. Issues Raised in Chalfonte’s Cross-Appeal Chalfonte asserts that the district court made two errors involving Fla. Stat. § 627.701(4)(a).3 Section 627.701(4)(a) provides that: Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no smaller than 18 points the following statement: “THIS POLICY CONTAINS A SEPARATE DED...

...o hurricane losses must on its face include in boldfaced type no smaller than 18 points the following statement: “THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.” Fla. Stat. § 627.701(4)(a). In Count IV of its amended complaint, Chalfonte alleged that the Policy did not comply with the requirements for hurricane deductibles or coinsurance provisions applicable to hurricane losses set forth in § 627.701(4)(a). The district court dismissed Count IV because the court concluded that § 627.701 does not 3 Chalfonte also contends that the district court erred in calculating prejudgment interest. Because the Supreme Court of Florida’s answers to our certified questions could result in a new trial, we decline to address the propriety of the prejudgment interest calculation at this time. 12 authorize a private right of action. Chalfonte argues that the district court erred in dismissing its § 627.701(4)(a) claims. In the amended final judgment, the district court applied the hurricane deductible contained in the Policy to reduce the damages awarded by the jury to Chalfonte on its breach of contract claims....

...Chalfonte contends that the district court should not have applied the Policy’s hurricane deductible to reduce the jury’s award of damages because the jury found that the Policy did not comply with the requirements for hurricane deductibles set forth in § 627.701(4)(a). Chalfonte’s cross-appeal requires us to determine what penalty an insurer must pay for noncompliance with § 627.701(4)(a) as well as what remedy an insured aggrieved by noncompliance with the statute may pursue. Resolution of both of these issues requires a determination of how the Florida Legislature intended courts to handle violations of § 627.701(4)(a) in the absence of an explicit statutory remedy provision. The parties have cited numerous Florida cases addressing similar issues in the context of various other statutory provisions, but the Supreme Court of Florida has not yet directly addressed the consequences of noncompliance with § 627.701(4)(a)....

...ifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155? (3) May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a)? 17  (4) Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable? (5) Does language in an insurance policy mandating payment of benefits upon “entry of a final judgment�...

...(Compl., 8.) Count I seeks a declaratory judgment that the Policy is valid and enforceable and that Plaintiff is entitled to property insurance coverage for its damage claim. Plaintiff further requests declaratory judgment that the co-insurance payments are void because the Policy fails to comply with Florida statutes section 627.701. Count II is a claim for breach of contract for failure to provide coverage. Count III is a claim for breach of contract for breach of implied warranty of good faith and fair dealing. Count IV is a claim for violation of Florida statutes section 627.701, alleging that the Policy fails to state in the appropriate size font that the policy contains a separate hurricane deductible, improperly uses the term "windstorm" instead of "hurricane losses," and fails to contain a separate statem...

...nd replacement, but there is no time frame for these determinations or other specific conditions about how valuations will be made or replacement cost will be determined, all of which are implied terms. Count IV is an action for violation Fla. Stat. 627.701 for failure to designate properly the coinsurance provision in the Policy....

...Thus attorney's fees were properly awarded pursuant to section 627.428. With regard to Brady's cross-appeal, we agree with the trial court that the "Loss of Use—Loss Participation Endorsement" is not a coinsurance provision, and thus it is not void because it lacks the coinsurance disclosure required by section 627.701....

...our household can maintain its normal standard of living; or b. Fair Rental Value, meaning the fair rental value of that part of the residence premises where you reside less any expenses that do not continue while the premises is not fit to live in. Section 627.701, Florida Statutes provides: 627.701....

...ACT Corp., 650 So.2d 647 (Fla. 5th DCA), rev. denied, 660 So.2d 713 (Fla.1995); Martin v. Ocean Reef Villas Ass'n, Inc., 547 So.2d 1237 (Fla. 5th DCA 1989), rev. denied, 557 So.2d 35 (Fla.1990). AFFIRMED. THOMPSON, C.J., and GRIFFIN, J., concur. NOTES [1] § 627.701, Fla....

...The case was tried from August 20 through August 29, 2007, wherein the jury found that Chalfonte had suffered $8,140,099.68. As a part of its claim, Chalfonte sought to invalidate the policy deductible of $1,605,653.00. Specifically, Chalfonte asserted that the deductible provision violated Section 627.701(4)(a) of the Florida Statutes, which states: "Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no smaller than 18 points the following statement: `THIS POLICY CONTAINS A SEPARATE DEDU...

...The jury was provided with a special interrogatory in the verdict form which read: "Did the Insurance Contract in this case include the required hurricane deductible statement, in boldface type no smaller than 18 points, pursuant to the requirements of Section 627.701(4)(a) of the Florida Statutes?" The jury answered this question "No" (DE 165). The jury made no further finding on this point. The question before me now is whether or not QBE's failure to comply with Section 627.701(4)(a) renders the policy's deductible provision void, which in turn depends on how, the statute is interpreted....

...minimum and (2) QBE used the word "windstorm" instead of "hurricane losses." Essentially, what Chalfonte appears to be arguing is that QBE violated the statute and the penalty for that violation should be voiding the entire deductible. II. Analysis Section 627.701(4)(a) does not explicitly state what constitutes a violation and what the penalty, if any, should be for such a violation....

...Tote, 311 F.3d 1077, 1079 (11th Cir. 2002)). In making this reasoned guess about what constitutes a violation and what the *1255 penalty should be for a violation, I rely on several areas of the law for guidance. In deciding whether or not QBE violated Section 627.701(4)(a), I will use some basic rules of statutory construction to determine what standard of compliance the statute requires....

...Then, in determining what penalty to apply for a violation of the statute, I will look at the statute in the context of the Insurance Code as a whole. Finally, I will turn to two Florida appellate court decisions on similar statutes to see what guidance they might provide. A. The plain meaning of the statute indicates that Section 627.701(4)(a) is mandatory. First, I will address whether or not QBE violated Section 627.701(4)(a). The jury found that QBE failed to comply with the requirements of Section 627.701(4)(a), but this failure to comply with the requirements does not necessarily mean that QBE violated the statute....

...See Salinas v. U.S., 522 U.S. 52, 118. S.Ct. 469, 139 L.Ed.2d 352 (1997). Moreover, the plain meaning of a word can usually be ascertained by reference to a dictionary. Zold v. Zold, 911 So.2d 1222, 1229 (Fla.2005). There is nothing ambiguous about Section 627.701(4)(a)....

...Dade County, 271 So.2d 118 (Fla. 1972) (holding that even though statute used mandatory words to command municipality to levy equal taxes on competitors, statute was construed as permissive so as not to violate constitutional requirements). [2] As Section 627.701(4)(a) is not directed at any public officers or entities, it is clear that the legislature, by using mandatory language, intended for the statute to be strictly complied with. Thus, QBE violated the statute by not putting the language in the proper font size and by substituting the word "windstorm" for "hurricane losses." B. There is no express penalty attached to Section 627.701(4)(a) and the Court declines to create one. While the 627.701(4)(a) clearly requires insurance companies to strictly follow its command, the legislature did not provide an express penalty for what, if anything, should happen if its command is violated....

...ntain a condition or provision which violates the [I]nsurance [C]ode"). These express penalty provisions that appear throughout the Insurance Code suggest three things: (1) that the legislature is perfectly capable of crafting an express penalty for Section 627.701(4)(a); (2) in the absence of an express penalty, the legislature may have intended for the deductible to be valid pursuant to Section 627.418(1); and (3) even if the legislature did not intend to make the deductible valid in the event...

...Thus, despite the parties' focus on whether or not to void the deductible, a perusal of the Insurance Code indicates that the penalty does not have to be voiding the deductible provision; for example, it could be some kind of monetary fine from the Department of Insurance. Thus, this Court declines to supply a penalty for Section 627.701(4)(a) where the legislature did not....

...c (1979) (stating that when a statute proscribes certain activity, but does not provide a remedy if there is a violation, it is often helpful to look at the intent of the legislative body that enacted the statute). Several paragraphs below the section at issue in this case, Section 627.701(6)(a) states that "[i]t is the intent of the Legislature to encourage the use of higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in this state and as a means of limiting t...

...he deductible, may not be in line with this stated intent. C. The Florida appellate court cases do not provide much guidance. Now I turn to the Florida appellate court cases. As I already stated, there is no Florida state court decision interpreting Section 627.701(4)(a) of the Florida Statutes....

...trictly comply, but neither expressly states what the penalty is for noncompliance. In Roberts, the First District Court of Appeal affirmed a trial court's holding that an insurance policy's coinsurance clause was void because it did not comply with Section 627.701(1). United States Fire Insurance Company v. Roberts, 541 So.2d 1297, 1298 (Fla. 1st DCA 1989). Section 627.701(1) states in part: (1) A property insurer may issue an insurance policy or contract covering either real or personal property in this state which contains provisions requiring the insured to be liable as a coinsurer with the insurer i...

...As a result, even though the statute did not expressly state it, the Roberts' Court found that the statute must be strictly complied with and that the coinsurance clause was therefore void. Id. In reaching this conclusion about the penalty, the Roberts' Court relied heavily on the legislative history of Section 627.701(1). Section 627.701(1) used to contain a statement that made the penalty for violating the statute voiding the provision....

...(the statute used to state, "any such clause or provision shall be null and void, and of no effect unless" the required statement was on the face of the policy or in an attachment). The legislative history also indicates that when the legislature amended Section 627.701(1), it did not intend for any substantive changes; it was merely attempting to clarify the statute. Id. *1259 The case before this Court can easily be distinguished from Roberts. Section 627.701(4)(a), the section addressing hurricane deductibles, unlike Section 627.701(1)(a) which addresses coinsurance, has never contained an express penalty. Thus, the Roberts' Court's stated reason for applying the penalty of voiding the entire provision does not apply to Section 627.701(4)(a). Moreover, the language in 627.701(1)(a) implies that a possible penalty for violating it would be voiding the provision because it states that insurance companies can only make the insured a coinsurer if certain requirements are met. So if the requirements are not met, it logically follows that the insurance company cannot make the insured a coinsurer. The language in Section 627.701(4)(a), on the other hand, does not imply any particular penalty for not following its requirements....

...the word "shall." Moreover, for this Court to follow the Prida ruling without being able to justify the reasons for doing so would be extremely problematic, especially in light of the fact that such a permissive standard would essentially render the Section 627.701(4)(a) meaningless....

...ion. Id. Unfortunately, the concurrence also does not explain its reasoning for relying on a substantial compliance standard. *1260 Thus, these two Florida appellate cases, despite their similarities, provide very little guidance on how to interpret Section 627.701(4)(a), as the first one is easily distinguishable, and the second one does not explain its reasoning. III. Conclusion Based on a plain meaning reading of Section 627.701(4)(a) of the Florida Statutes, the statute is mandatory and requires strict compliance....

...Under the coinsurance clause of the insurance policy, appellant invoked a penalty provision because the appellee's property was undervalued. The trial court held that the policy's coinsurance clause was void for failure of the policy to include a statement in the form required under the Florida Insurance Code, specifically Section 627.701(1), Florida Statutes (1983), which provides: 627.701 Coinsurance contracts....

...he policy. The trial court properly held that such omission rendered the coinsurance provisions of the policy void and unenforceable. Our view of the correctness of the trial court's order is based in significant part upon the legislative history of Section 627.701. Prior to the hereinafter discussed legislative amendment in 1982, the 1981 version of Section 627.701 provided as follows: 627.701 Coinsurance contracts....

...nt is not stamped on the face of the policy. Does this mean that the 1983 version of the statute should be construed to mean that a coinsurance clause which is in violation of the statute is enforceable? We believe not. When a statute is amended, as Section 627.701 was amended in 1982, one may assume, unless a contrary indication appears, that the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment. See Hall v. Oakley, 409 So.2d 93, 97 (Fla. 1st DCA 1982). In the case of Section 627.701, however, the legislative history of this change makes clear that no substantive change was intended. Specifically, the staff analysis prepared in conjunction with the house bill which became Section 627.701 (1983) provided: "This section provides the circumstances under which property insurers may issue insurance contracts with co-insurance provisions. The new language is a technical rewrite of current law to make it more readable." Staff Analysis, HB 4F, page 91. Similarly, the industry analysis prepared in conjunction with the revision of Section 627.701 commented only as follows: "A technical revision which clarifies the present language." Insurance Industry Sunset Proposal, page 1056 (emphasis added)....

..."The provisions of statutes enacted in the public interest should be given a liberal construction in favor of the public." Department of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985). The consumer protection policy embodied in Section 627.701 must be given a liberal construction in order to insure that the public interest protection intended is effectuated....

...dication of the general enforceability of the contract. Secondly, Plaintiff is seeking declaratory judgment regarding the validity of the hurricane deductible provision, which is included in the contract, due to its failure to comply with Fla. Stat. § 627.701. QBE argues that this Court should dismiss this claim because no cause of action can exist under Fla. Stat. § 627.701, citing to Chalfonte Condo....

...Apt. Ass'n v. QBE, 2007 WL 1489817 (S.D.Fla. May 18, 2007). Contrary to Defendant's assertion, however, Chalfonte has no bearing on the declaratory judgment issue. In contrast to Chalfonte, Nirvana is not asserting a claim against QBE under Fla. Stat. § 627.701....

...Dome filed an Answer, Affirmative Defenses, and Counterclaim [D4]. The counterclaim consists of four counts: Count I for Declaratory Judgment, Count II for Breach of Contract, Count III for Breach of Implied Covenant of Good Faith and Fair Dealing, and Count IV for Violation of Section 627.70131, Florida Statutes....

...QBE was the issuer of Dome's commercial property insurance policy. After Dome made its claim, a dispute arose between the parties over damages covered by the insurance policy and, thus, the claim remains unpaid. The parties have twice submitted to the mediation program offered under Florida Statutes, section 627.7015 in December 2006 and August 2007....

...Thus, QBE asserts that the entire counterclaim should be dismissed. Dome argues that QBE is not entitled to enforce the appraisal provision of the contract because QBE never notified Dome of its right to participate in the mediation program set out in section 627.7015, Florida Statutes. Section 627.7015(7) states that if the insurer fails to notify the insured of its right to participate in the mediation program, "the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property...

...However, as noted above, the parties did utilize the mediation program. Despite QBE's arguments about notice, the statute specifically states that the insurer "shall notify all first-party claimants of their right to participate in the mediation program." Fla. Stat. § 627.7015(2)....

...t of loss and damages caused by Hurricane Wilma; (5) Dome be awarded supplemental relief to fully compensate it for all of its hurricane related damages under Chapter 86, Florida Statutes; and (6) the Insurance Contract fails to comply with sections 627.701(a-b) and 627.701(4)(a), Florida Statutes, which would make the provisions concerning co-insurance and a separate hurricane deductible void and unenforceable....

...In response, Dome assets that the conditions, limitations, and exclusions contained in the policy mean that the policy currently may not be valid and enforceable. Thus, Dome argues there is an actual dispute. As to point (6), above, QBE argues that Dome has not pled a claim for declaratory relief under Florida Statutes, section 627.701. [1] Dome's counterclaim asserts that the insurance policy does not comply with the requirements of section 627.701 and thus the provisions of the policy regarding co-insurance and a separate hurricane deductible are void and unenforceable....

...See Chalfonte Condominium Apartment Association, Inc. v. QBE Insurance Corp., 526 F.Supp.2d 1251, 1256 (S.D.Fla.2007). However, Dome points out that a recent Florida trial court decision explicitly voided the deductible provision of a policy for failure to comply with section 627.701. See Racquet Club, LLC v. Citizens Property Ins. Co., No. 07-23286 CA 31 (Fla.Cir.Ct.2008). Thus, Florida courts are willing to void the deductible provision for a failure to comply with section 627.701....

..., Dome cannot state a cause of action for breach of the implied covenant of good faith and fair dealing because no such cause of action exists under Florida law. Consequently, Count III of the counterclaim should be dismissed. Count IV—Violation of § 627.70131, Florida Statutes Must be Dismissed In support of its motion to dismiss Count IV of the counterclaim, QBE asserts that section 627.70131 cannot be the basis for a claim by Dome for two reasons: (1) the statute explicitly states that "failure to comply with this subsection shall not form the sole basis for a private cause of action;" Fla. Stat. § 627.70131(5)(a); and (2) the statute was passed after the parties entered into the insurance contract....

...cause of action; and (2) the statute should be applied retroactively because it is both remedial and procedural. (emphasis added). Based on the plain language of the statute, Dome is precluded from bringing a claim that only seeks recovery based on section 627.70131....

...ve a person a right to judicial redress or relief against another." Black's Law Dictionary 221 (6th ed. 1990). In *1262 Count IV, the only facts that Dome pleads as the basis for its right to redress are the facts that would establish a violation of section 627.70131....

...Further, the statute specifically states that "except as otherwise expressly provided in this act, this act shall take effect upon becoming law." [4] 2007 Fla. Sess. Law Serv. 2007-90, § 29. Based on the plain language of the statute, Dome is precluded from bringing a separate cause of action based solely on section 627.70131, as its claims, if any, arose in 2005. Therefore, accepting all of Dome's allegations as true, it cannot state a cause of action because under section 627.70131 there is no cause of action based solely on that section of the statute....

...1st DCA 2009): [L]aw and ordinance coverage under the policy provides reimbursement for up to 25% of dwelling policy limits for increased repairs and replacement costs incurred by the insured to comply with the requirements of the applicable laws and ordinances regulating construction or repair of property. See, e.g., § 627.701 l(l)(b), Fla....

...In its amended complaint, Chalfonte asserted claims for declaratory judgment, breach of contract for failure to provide coverage, and breach of contract for the breach of the implied warranty of good faith and fair dealing. The complaint also claimed that QBE had violated Section 627.701(4)(a) of the Florida Statutes. QBE moved to dismiss that claim, and the district court granted its motion, concluding that Section 627.701(4)(a) does not create a private right of action. The remaining claims proceeded to trial....

...The jury reached a verdict for Chalfonte on all of its claims and in a special verdict form awarded Chalfonte $7,868,211 for QBE’s failure to provide coverage and $271,888.68 for breach of the implied warranty of good faith and fair dealing. The jury also found that the insurance policy did not comply with Section 627.701(4)(a) of the Florida 3 Statutes, even though Chalfonte’s claim based on that provision had been dismissed before trial. The district court entered a final judgment in favor of Chalfonte in the amount of $8,140,099.68 and post-judgment interest....

...bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155? (3) May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a)? (4) Does an insurer’s failure to comply with the language and type- size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable? (5) Does language in an insurance policy mandating payment of benefits upon “entry of a final judgment�...

...Accordingly, based on the Florida Supreme Court’s answers to our certified questions, attached hereto as an appendix, we affirm in part and reverse in part the district court’s judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s claim under Section 627.701(4)(a) of the Florida Statutes, because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision, and we instruct the district c...

...This action arises from an appeal to the United States Court of Appeals for the Eleventh Circuit wherein the plaintiff-appellee and cross-appellant Chalfonte Condominium Apartments Association, Inc. (Chalfonte) appealed the dismissal of claims under section 627.701(4)(a), Florida Statutes (2009), and the denial of a motion to enforce execution of the judgment, and the defendant-appellant and cross-appellee QBE Insurance Corporation (QBE) appealed the denial of motions for a new trial and for...

...In the district court, Chalfonte raised claims for declaratory judgment (Count I), breach of contract—failure to provide coverage (Count II), breach of contract—breach of the implied warranty of good faith and fair dealing (Count III), and violation of Fla. Stat. § 627.701(4)(a) (Count IV). The district court dismissed Count IV of the complaint, concluding that § 627.701 does not provide a private right of action, and then held a jury trial on Chalfonte’s remaining claims....

...($2,000,000 of which was awarded for “ordinance or law” coverage) and $271,888.68 for breach of the implied warranty of good faith and fair dealing, for a total award of $8,140,099.68. The jury also concluded that the Policy did not comply with § 627.701(4)(a). The district court entered a final judgment in favor of Chalfonte in the amount of $8,140,099.68, with post-judgment interest accruing in accordance with 28 U.S.C....

...trial, but granted QBE’s motion to amend the judgment by applying the hurricane deductible contained in the Policy despite the jury’s conclusion that the Policy did not comply with the requirements for hurricane deductible provisions set forth in § 627.701(4)(a). Chalfonte also filed a motion to amend the final judgment....

...same bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155? 3. May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a)? 4. Does an insurer’s failure to comply with the language and type- size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable? 5....

...Since we have answered the first certified question in the negative, the second certified question is rendered moot. Accordingly, we address the third and fourth certified questions, which both involve the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes.2 Chalfonte raised a claim alleging a violation of this section by QBE. The trial court dismissed that claim, concluding that the statute does not provide a private right of action. Despite the dismissal of the claim, the jury concluded that the insurance policy did not comply with section 627.701(4)(a). Following the jury trial, the district court granted QBE’s motion to amend the judgment by applying the hurricane deductible in the policy. The application of the hurricane deductible reduced the award to Chalfonte by 2. Section 627.701(4)(a), Florida Statutes (2009), provides in pertinent part: (4)(a) Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no smaller than 18 points the following statement: “THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.” 24 $1,605,653. On appeal, Chalfonte argued that the district court erred in dismissing its section 627.701(4)(a) claim....

...However, the notice did not comply with the statutory requirements in two ways: the font used was 16.2-point instead of 18-point, and the statement contained the word “windstorm” instead of “hurricane.” Our determination as to whether section 627.701(4)(a) creates a private cause of action for its violation is a question of statutory interpretation....

...In determining the meaning of the language used, the court must look not only to the words themselves but also to “the context in which 28 the language lies.” Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470, 472 (Fla. 1995). There is nothing in the text of section 627.701(4)(a) from which one can deduce that the Legislature intended an insured to have a private right of action against an insurer for failure to follow the notice requirements....

...Nor does the legislative history contain any guidance of whether the Legislature intended to create a private cause of action for the section’s violation. In fact, there is hardly any mention of this section in the legislative history. It was originally codified as section 627.701(3)(c), which required the notice language in reference to “windstorms.” Ch....

...to “ensure adequate hurricane catastrophe insurance at an affordable price.” Fla. S. 29 Comm. on Banking & Ins., CS/SB 2314 (1996) Staff Analysis 1, 11 (Apr. 5, 1996). Other subsections of section 627.701 also offer clues as to the context of subsection (4)(a). Section 627.701(6)(a) expresses the legislative intent “to encourage higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in this state and as a means of limiting the impact of rapidly changing hurricane insurance premiums.” Section 627.701(2)(a) provides that a property insurer may not issue an insurance policy containing a hurricane deductible provision unless the Department of Insurance determines that the deductible provision is clear and unambiguous....

...4th DCA 1990)). 30  Based upon the above, we answer the third certified question in the negative and find that an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a). Chalfonte argues that QBE’s failure to strictly comply with the notice requirements specified in section 627.701(4)(a) should render the hurricane deductible void and unenforceable. In his analysis of this issue, Judge Middlebrooks correctly noted that the Legislature did not specify any penalty or consequence for failure to comply with the requirements of section 627.701(4)(a). Chalfonte Condo....

...such conditions and provisions as would have applied had such policy, rider, or endorsement been in full compliance with this code.”). Thus, the Insurance Code supports the conclusion that the Legislature is perfectly capable of crafting an express penalty for section 627.701(4)(a) and that 32 there is no good reason for the courts to select one penalty over another. Chalfonte, 526 F. Supp. 2d at 1257; see also RTG Furniture Corp. v. Indus. Risk Insurers, 616 F. Supp. 2d 1258, 1267 (S.D. Fla. 2008) (“[I]n the absence of an express penalty attached to this statute [section 627.701(4)(a)] which prescribes the manner in which property insurers are to alert their insureds that the policy contains a separate hurricane deductible, the court is not at liberty to supply one.”). Our conclusion that courts c...

...1st DCA 1989) with Prida v. 33 Transamerica Ins. Fin. Corp., 651 So. 2d 763 (Fla. 3d DCA 1995). In Roberts, the First District declared void a policy’s coinsurance clause because it did not comply with the requirements of section 627.701(1)....

...Second, the hurricane deductible notice statute had never included a penalty provision as the coinsurance statute in Roberts did. Third, the coinsurance statute at issue in Roberts was not the coinsurance notice provision that was also included in section 627.701(4)(a)....

...fails to comply with the terms of the aforementioned statute”). Based on the above analysis, we answer the fourth certified question in the negative and find that an insurer’s failure to comply with the language and type size requirements established in section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable, because the Legislature has not provided for this penalty. The last certified question asks “whether the lan...

...Specifically, we conclude that under Florida law (1) first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes; (2) an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established by section 627.701(4)(a) of the Florida Statutes; (3) an insurer’s failure to comply with the language and type-size requirements established in section 627.701(4)(a) does not render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable as the Legislature has not provided for this penalty; and (4) a contractual provision mandating payment of benefits u...

...rupted ingress/egress, power interruptions, etc. which interrupted business at store locations which did not suffer direct physical damage. Alternatively, RTG argues that the NSO Deductible is void because it does not comply with the requirements of § 627.701(4)(a), Florida Statutes (2007) governing publication of hurricane deductibles in property insurance policies. More specifically, RTG claims the Policy NSO Deductible is unenforceable because the Policy does not, on its face, include the following language in boldface type, no smaller than 18 points, as dictated by Florida Statute § 627.701(4)(a): THIS POLICY CONTAINS A SEPRATE DEDUCTIBLE FOR HURRCANE LOSSES, WHICH MAY RSULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU. IRI admits that the Policy does not contain the wording required by Fla. Stat. § 627.701(4); however, it contends that this does not void the NSO Deductible here because: (1) this statute has no application where the language and terms of the deductible are supplied by the insured [as here, where it contends that Tio, as RTG's...

...Co., 62 N.Y.2d 916, 467 N.E.2d 887, 479 N.Y.S.2d 3 (N.Y. 1984). Because the court further finds a genuine issue of material fact on the issue of the parties' intent, it must deny both motions for summary judgment on construction of the NSO Deductible. [6] C. Validity of NSO Deductible under § 627.701(4)(a) The court has carefully reviewed the parties' respective arguments on the effect of the defendant's acknowledged failure to comply with the policy publication requirements of § 627.701(4)(a), Fla....

...Therefore, IRI's conceded violation of this mandatory statute—via its entire failure to insert the required language in the Policy—does not void the NSO Deductible as a matter of law. RTG's motion for summary judgment on the basis of the asserted § 627.701(4)(a) violation is accordingly denied....

...Chalfonte Condominium, Apartment Association, 94 So.3d 541, 545 (Fla.2012), our supreme court was presented with the following certified question: “Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701 (4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable?” It answered that question in the negative, in part because voiding the deductible provision in the policy would alter the terms of the insurance contract....

...On the other hand, Enclave contends that the deductible should be interpreted as 3% of the policy limit of $1 million, or $30,000. Additionally, Enclave argues that, even if Mt. Hawley's interpretation is correct, such a deductible provision violates Fla. Stat. § 627.701 (as applicable at the time the policy was issued), thereby voiding the deductible....

...Accordingly, because the deductible provision is unambiguous, and Mt. Hawley's interpretation is the correct one, Mt. Hawley's motion for partial summary judgment on the interpretation of windstorm deductible is GRANTED. [4] , [5] 2. THE WINDSTORM DEDUCTIBLE IS NOT VOID PURSUANT TO FLA. STAT. § 627.701 Enclave also argues that the windstorm deductible violates subsections (3)(a) and (4)(a) of Fla. Stat. § 627.701 (2004), and that, as a result, the deductible provision is void and unenforceable. In relevant part, § 627.701 provides: (3)(a) A policy of residential property insurance shall include a deductible amount applicable to hurricane or wind losses ....

...sured value with respect to any other commercial lines residential policy, if, at the time of such offer and at each renewal, the insurer also offers to the policyholder a deductible in the amount of 3 percent of the insured value. See Florida Stat. § 627.701 (2004). [6] As an initial matter, I agree with Enclave that § 627.701 applies to this policy....

...§ 626.913, the Surplus Lines Law applicable to surplus carriers such as Mt. Hawley, was amended in 2009 to provide that § 627 does not apply to surplus lines carriers, there was an exception for lawsuits filed on or before May 15, 2009. Because Enclave filed suit on May 15, 2009, § 627.701 applies to the subject policy. Turning to its specific arguments, Enclave contends that the subject insurance policy violates § 627.701(3)(a), which states that "[a] policy of residential property insurance shall include a deductible amount applicable to hurricane or wind losses ....

...." (emphasis added). Enclave argues that the windstorm deductible (which obviously provides a deductible for "wind losses") violates this subsection because it exceeds 3% of the $1 million policy limit. This, argument, however, overlooks the exception set forth in § 627.701(8), providing that notwithstanding the previous sub-sections of the statute, an insurer is authorized to offer a deductible in an amount not exceeding 5% of the insured value with respect to a condominium association, if it also offers a deductible in the amount of 3% of the insured value. This subsection applies here because Enclave's windstorm deductible is 3% of the total values at risk per building at the time of loss, which is less than the maximum deductible authorized by § 627.701(8) (5% of insured value), and meets the requirement that the insurer offer a deductible in the amount of 3% of the insured value. There is no dispute that Mt. Hawley complied with § 627.701(8), and was authorized to issue the policy with the disputed windstorm deductible. Accordingly, the deductible limitation expressed in § 627.701(3)(a) does not apply here. [7] Enclave also argues that the deductible is void because it does not include the language specified in § 627.701(4)(a) that *1292 must be included in a "separate hurricane deductible." Enclave makes this argument despite the fact that its policy does not technically contain a "separate hurricane deductible," but a deductible for "windstorm or hail" (which would encompass a hurricane). Enclave has not cited any cases where courts have held that a policy that did not contain a separate hurricane deductible, but instead included a general windstorm deductible, was required to include the language set forth in § 627.701(4)(a)....

...this subsection because, even if it was, I cannot render the deductible void and unenforceable based on Mt. Hawley's failure to comply. This is because the statute does not include a penalty provision voiding a deductible for failure to comply with § 627.701(4)(a)....

...I cannot create a penalty provision, voiding the windstorm deductible, where the legislature chose not to do so. See Chalfonte Condominium Apartment Ass., Inc. v. QBE Insurance Corp., 526 F.Supp.2d 1251, 1260 (S.D.Fla.2007) ("[I]n absence of an express penalty for . . . violation of [§ 627.701(4)(a) ], this Court declines to provide one. Therefore, the hurricane deductible is not void. . . ."). See also RTG Furniture Corp., 616 F.Supp.2d at 1267 (adopting Judge Middlebrooks' decision in Chalfonte, and concluding that the defendant's acknowledged failure to comply with § 627.701(4)(a) does not void the deductible as matter of law)....

...The fact that several other sections of § 627 do indeed provide penalties expressly declaring that "a violation of the statute results in the policy provision being rendered invalid or void," creates a strong presumption that the omission of an express penalty for violation of § 627.701 was intentional....

...have applied had such policy, rider, or endorsement been in full compliance with this code." See § 627.418(1). This language, applicable to the statute at issue, confirms that the legislature's failure to supply an express penalty for violation of § 627.701 requires that courts "assume that the policy provision is valid despite noncompliance with the Insurance Code." See Chalfonte, 526 F.Supp.2d at 1257....

...nts and submission to an EUO before filing suit; (2) Mt. Hawley's interpretation of the windstorm deductible is the correct one as a matter of law; and (3) the windstorm deductible is not void or unenforceable due to alleged violations of Fla. Stat. § 627.701....

...Hawley's interpretation of the windstorm provision. [5] Obviously, the value of the buildings damaged pursuant to Enclave's claim, and the amount of the deductible applicable to Enclave's claim, are matters to be determined by the jury. [6] The 2004 version of Florida Statute § 627.701 is applicable to Enclave's policy because it was issued before October 1, 2005, the effective date for the 2005 amendments to the relevant provisions above....

...te that the suit was filed or the accident occurred, because `the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.'") (citation omitted). [7] It should be noted that § 627.701(8) applies "only as to hurricane coverage as defined in § 627.4025," which provides that "hurricane coverage" is "coverage for loss or damage caused by the peril of windstorm during a hurricane." See §§ 627.701(8), 627.4025(2)(a)....

...The windstorm deductible contained in Enclave's policy seemingly falls within the definition of hurricane coverage. Enclave cannot dispute the application of this subsection to the policy, but then, in turn, contend that subsections (3)(a) and (4)(a) of § 627.701 apply to the windstorm deductible. [8] This also applies to Enclave's argument that the deductible is void due to the policy's failure to comply with § 627.701(3)(a). See Vision I Homeowners Ass., Inc. v. Aspen Specialty Ins. Co., 643 F.Supp.2d 1356, 1362 (S.D.Fla.2009) (denying summary judgment because legislature's omission of penalty for violation of § 627.701(8) does not permit court to void policy deductible).

...and damages caused by Hurricane Wilma to Vision I; and d) that Vision I be awarded supplemental relief to fully compensate it for all of its hurricane related damages. It also seeks a declaration that the policy fails to comply with Florida Statute Section 627.701 and therefore the provision concerning a separate hurricane deductible is unenforceable. In addition, it seeks a declaration that the provision regarding a separate "5% of TIV" deductible is ambiguous and that Aspen failed to offer it a deductible in the amount of 3% of the insured value in violation of Florida Statute Section 627.701(8)....

...at 249-50, 106 S.Ct. 2505 (citations omitted). B. Vision I's Motion 1) Arguments In its Motion for Partial Summary Judgment, Vision I seeks a declaration that the 5% of TIV Hurricane deductible is invalid because Aspen failed to offer a 3% deductible. Florida Statute § 627.701 was in effect from December 21, 2004 through May 31, 2005 and provided that: Notwithstanding the other provisions of this section or of other law, but only as to hurricane coverage as defined in s....

...the insured value with respect to any other commercial lines residential policy, if, at the time of such offer and at each renewal, the insurer also offers to the policyholder a deductible in the amount of 3 percent of the insured value. Fla. Stat. § 627.701(8)....

...Plaintiff *1360 points to the intent of the legislature to "encourage the use of higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in this state and as a means of limiting the impact of rapidly changing hurricane insurance premiums." Fla. Stat. § 627.701(6)(a) (2004 version)....

...However, it "does admit that it did not communicate an offer to the surplus lines agent to insure Vision I for a 3% windstorm deductible." According to Aspen, the Florida Surplus Lines Service Office ("FSLSO") regulates surplus lines insurers in Florida and its position has been that Section 627.701(8) do not apply to surplus lines insurers. [3] Therefore, the FSLSO has not created, adopted, or approved any forms which a surplus lines insurer could use to comply with the offers authorized by Section 627.701(8)....

...Zota, 985 So.2d 1036 (Fla.2008), finding that the exclusionary language does not apply to surplus lines insurers, was not issued until 2008, after the policy was issued. Prior to that, in a footnote, the Second District Court of Appeals of Florida had noted that "section 627.701, Florida Statutes (1997), which places certain restrictions upon deductible provisions specific to hurricane damage subject to enforcement by the Department of Insurance, does not apply to the contract of insurance [as the defendant]...

...Therefore, Aspen contends, the understanding at the time the Policy was issued was that the requirement did not apply to surplus lines insurers. 2) Analysis First, the Court is not persuaded by the opinion of the FSLSO, a "self-regulating *1361 organization," as to what the Legislature intended by Sections 627.701(8) or 627.021(2)(e)....

...of the marine exclusion in the M/V Manaure V case. Accordingly, the Court finds that the exclusion of Section 627.021(2)(e) did not apply to the entire chapter of 627 and thus surplus lines insurers were not excused from the deductible provision in Section 627.701(8) at the time the Policy was enacted....

...Zota, 985 So.2d 1036, 1040 (Fla.2008) (citing Fla. Stat. §§ 626.913-626.937 (2003)). [4] The Court would note that on March 9, 2009, the Eleventh Circuit certified the question of what remedy an insured has for noncompliance with the statutory provision at issue (Florida Statute § 627.701(4)(a)), as the consequences of noncompliance with that provision had not yet been addressed by the Florida Supreme Court....

...and damages caused by Hurricane Wilma to Vision I; and d) that Vision I be awarded supplemental relief to fully compensate it for all of its hurricane related damages. It also seeks a declaration that the policy fails to comply with Florida Statute Section 627.701 and, therefore, the provision concerning a separate hurricane deductible is unenforceable. In addition, it seeks a declaration that the provision regarding a separate "5% of TIV" deductible is ambiguous and that Aspen failed to offer it a deductible in the amount of 3% of the insured value in violation of Florida Statute Section 627.701(8)....

...aisal of property damage to condominium association property owned by the Devon Neighborhood Association, Inc. ("Devon"). Devon claimed that FIGA had waived its right to an appraisal by participating in the lawsuit and also by failing to comply with section 627.7015, Florida Statutes....

...es pursuant to the terms of the Southern policy. FIGA moved to compel an appraisal. Devon objected, both because it contended that FIGA had waived its right by participating in the lawsuit and because both Southern and FIGA had failed to comply with section 627.7015(2), Florida Statutes (2005), by not notifying Devon of the statutory mediation process available to it....

...ccordance with the statute. Ultimately, the trial court denied the motion to compel the appraisal, prompting this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). FIGA claims that it is not bound by the notice provisions of section 627.7015(2), as the amendment which would have applied the statute to the insurance contract in this case was enacted after the policy went into effect....

...Balancing the nature and extent of the impairment of contract with the state's objective goals, we conclude that the statutory amendment is constitutionally *51 permissible. See Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774 (Fla.1979). Section 627.7015 establishes a mediation alternative for the handling of property insurance claims....

...The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process. Before resorting to these procedures, insureds and insurers are encouraged to resolve claims as quickly and fairly as possible. § 627.7015(1), Fla. Stat. (2005). Upon receiving a claim, the insurer must notify the claimant of its right to mediation. § 627.7015(2), Fla....

...d to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder's claims covered by the policy." § 627.7015(7), Fla. Stat. (2005). It is undisputed that the notice provisions of section 627.7015(2) were not complied with in this case....

...lem.") (citation omitted). The regulation affects insurance, a heavily regulated industry. The contents of insurance policies and the procedures for handling claims are regulated by statutes as well as Department of Insurance regulations. See, e.g., § 627.701, Fla....

...It does not permanently and substantially change the contractual arrangements between the parties. Based upon an application of the balancing test, we find that the statutory amendment subjecting commercial residential insurance policies to the mediation provisions of section 627.7015 was not an unconstitutional impairment of the existing insurance policy....

...d claims, and, to such extent, shall have all rights, duties, defenses, and obligations of the insolvent insurer as if the insurer had not become insolvent." (Emphasis supplied). One of the duties of the insurer was compliance with the provisions of section 627.7015....

...Trianon has complied with its obligations under the Insurance Contract. (Comp. ¶ 12). QBE has failed to provide Trianon with any estimate of damages, has failed to adjust, pay and/or settle Trianon's claim for hurricane damages, despite its obligations to do so under Chapter 627.70131, Florida Statutes, and the Insurance Contract....

...is the case with a bad faith claim under Fla. Stat. § 624.155. (1) Count I, sections (e) In Count I, Declaratory Judgment Against QBE, Plaintiff seeks a declaratory judgment, in pertinent part: "(e) that the Insurance Contract fails to comply with Section 627.701(4)(a), Florida Statutes; therefore, the provisions concerning co-insurance and a separate hurricane deductible are void and unenforceable." [DE 1 at p. 7]. Coinsurance issue Count I(e) of the Complaint asks the Court to enter a declaratory judgment that the Insurance Contract's co-insurance provision is void and unenforceable for violating Section 627.701, Florida Statutes....

...See Quadomain Condo. Ass'n, Inc. v. QBE Ins. Corp., 2007 WL 1424596, *6-7 (S.D.Fla.2007) (dismissing plaintiffs claim for declaratory judgment decreeing as void the provisions of the insurance contract requiring coinsurance payments for violation of section 627.701)....

...Accordingly, QBE's motion to dismiss Count I(e) regarding the Insurance Contract's coinsurance provision is granted. Hurricane deductible issue Also in Count I(e), Plaintiff claims that the Insurance Contract's hurricane deductible is void for violating Section 627.701(4)(a), which provides in pertinent part: (4)(a) Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no smaller than 18 points the following statement: "THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU." Defendant argues that, while Section 627.701(4)(a) requires that a hurricane deductible provision be printed in a certain size and contain certain language, it does not provide for a private right of action should a policy not conform....

...Furthermore, "it is the duty of the court to interpret laws and not to make them, and we are to make no subtraction or addition to the meaning of a statute." Curry v. Lehman, 55 Fla. 847, 47 So. 18, 20 (1908). QBE submits that there is no independent cause of action for violating Section 627.701(4)(a)....

...he policy contains a separate hurricane deductible, the court is not at liberty to supply one."); Quadomain Condo. Ass'n, Inc. v. QBE Ins. Corp., 2007 WL 1424596, *6-7 (S.D.Fla.2007) (finding that no independent cause of action exists for Fla. Stat. § 627.701(4)(a)); El-Ad Residences at Miramar Condo. Ass'n, Inc. v. Mt. Hawley Ins. Co, et al., 09-60723-CIV-JODAN at p. 14 (S.D.Fla. Sept. 28, 2010) ("Even assuming that the windstorm deductible violated § 627.701, the statute does not provide any penalty provision indicating that such a deductible is void and unenforceable....

...Count I(d), (e), and (f) and Count IV of Plaintiffs Complaint [DE 14] are hereby DISMISSED in accordance with this Order. NOTES [1] The Court notes that on March 9, 2009, the Eleventh Circuit certified the question of what remedy an insured has for noncompliance with Florida Statute § 627.701(4)(a), as the consequences of noncompliance with that provision had not yet been addressed by the Florida Supreme Court....

...As such, Plaintiff alleges that it is in doubt concerning its right to have the dispute concerning the amount of its loss resolved through appraisal. Id. at ¶ 42. Finally, in count III, Plaintiff seeks a declaratory judgment establishing that the hurricane deductible in the Policies is void pursuant to Florida Statutes § 627.701(4) which requires specific disclosures to be made with certain font requirements....

...ance Code. Chalfonte Condominium Apartment Ass'n. Inc. v. QBE Ins. Corp., 526 F.Supp.2d 1251, 1257 (S.D.Fla. 2007). [5] The Court is faced with the same dilemma as Judge Middlebrooks. In QBE Judge Middlebrooks determined that QBE violated Fla. Stat. § 627.701(4) by not putting the language in the proper font size and by substituting the word "windstorm" for "hurricane loss." Id....

...transplanted the substantial compliance test from substantively different soil that is inapplicable here. In Chalfonte, the case relied upon in Pin-Pon and Fox, the Florida Supreme Court considered whether the language and type- size requirements established by section 627.701(4)(a), Florida Statutes (2009), rendered a noncompliant hurricane deductible provision in an 10 insurance policy void and unenforceable....

...preexisting conditions. As to the hurricane deductible, the Association argued that 11  USCA11 Case: 19-12716 Date Filed: 07/20/2021 Page: 12 of 29 the percentage-deductible violated Florida Statute § 627.701(2)(b), which says that an insurance policy cannot contain a deductible provision that “[s]tates the deductible as a percentage rather than as a specific amount of money” unless Florida’s Office of Insurance Regulation determines t...

...to the jury. Drawing all reasonable inferences in favor of Rockhill, the court denied the motion to strike the jury’s finding of preexisting damages. As to the hurricane deductible, the District Court found that the Association’s reliance on § 627.701 fell short because the Policy language was clear and unambiguous. The District Court thus entered an amended final judgment on August 27, 2019....

...so long as a rational basis exists for the calculation.”). 25  USCA11 Case: 19-12716 Date Filed: 07/20/2021 Page: 26 of 29 B. ROCKHILL’S FAILURE TO COMPLY WITH FLORIDA STATUTE § 627.701(2) DOES NOT RENDER THE HURRICANE DEDUCTIBLE UNENFORCEABLE The Association argues that the Policy’s 3% hurricane deductible is unenforceable because Rockhill failed to obtain approval from Florida’s Office of Insurance Regulation under Fla. Stat. § 627.701(2). The Association relies on the text of § 627.701, which says that “[u]nless the office [of insurance regulation] determines that the deductible provision is clear and unambiguous, a property insurer may not issue an insurance policy” covering real property that contains a hurricane deductible provision and sets forth the deductible “as a percentage rather than as a specific amount of money.” Fla. Stat. § 627.701(2) (emphasis added). As the Association points out, the violation of certain subsections of § 627.701 does not result in any penalty. See, e.g., Fla. Stat. § 627.701(3)(a) (stating that the failure to provide notice of offers of alternative deductible amounts does not affect the coverage provided under the policy); QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So. 3d 541, 554 (Fla. 2012) (holding that failure to comply with the language and type-size requirements in § 627.701(4)(a) does not render a hurricane deductible provision void)....

...Based on the Florida Supreme Court’s analysis in Chalfonte, we hold that Rockhill’s failure to 26  USCA11 Case: 19-12716 Date Filed: 07/20/2021 Page: 27 of 29 obtain approval of its percentage-deductible under § 627.701(2) does not render the deductible unenforceable.9 In Chalfonte, the Florida Supreme Court answered several questions certified to it by this Court, including whether an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision void and unenforceable. See 94 So. 3d at 543, 545. Unlike many other sections of Florida’s Insurance Code, § 627.701(4)(a) did not specify any penalty or consequence for the insurer’s failure to comply. Fla. Stat. § 627.701(4)(a); see also Chalfonte, 94 So....

...ss, legislatively-created penalty, the court could not provide a remedy for the insurer’s noncompliance. See id. at 553. The same logic applies here. The Florida legislature did not specify any penalty or consequence for failing to comply with § 627.701(2), so we are “not at liberty to supply one.” Id....

...at 553 (quotation marks omitted). 9 Rockhill says there is nothing for us to review because the Association did not raise the arguments it is making on appeal before the District Court. True, the Association did not specifically argue that Florida’s legislature intended § 627.701(2) to void policy provisions as the sanction for an insurer’s failure to comply with that subsection. But because the Association argued that the 3% hurricane deductible violates § 627.701(2) and should not be enforced, we think the argument is sufficiently before us. 27  USCA11 Case: 19-12716 Date Filed: 07/20/2021 Page: 28 of 29 The Association’s reliance on United States Fire Insurance Company v. Roberts, 541 So. 2d 1297 (Fla. 1st DCA 1989) (per curiam), is unpersuasive. In Roberts, the First District held that a policy’s coinsurance provision was void because it did not comply with § 627.701(1). The Roberts court looked to the history of § 627.701(1), which, before it was amended in 1982, specifically stated that “any such clause or provision shall be null and void, and of no effect” unless it complied with the coinsurance provision. See 541 So. 2d at 1298–99 (quoting Fla. Stat. § 627.701 (1981))....

...The First District did not apply the general rule that the legislature intends an amended statute to have a different meaning than its pre- amendment version, noting that the legislature intended to clarify—not substantively change—the statute. Id. at 1299. In deciding the enforceability of § 627.701(4)(a) in Chalfonte, the Florida Supreme Court found the legislative history distinguishable. Chalfonte, 94 So. 3d at 554. Section 627.701(4)(a), unlike § 627.701(1), “had never included” an express penalty provision. Id.; Roberts, 541 So. 2d at 1299 (“As can be seen from the 1983 version, there is no express statement that the coinsurance clause is null and void if the requisite statement is not stamped on the face of the policy.”). So too here with § 627.701(2)....

...� deal— it “requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” Chalfonte, 94 So. 3d at 554 (quotation marks omitted). Without indication from the Florida legislature that violating § 627.701(2) voids the offending deductible provision, we will not impose such a penalty here. V....

...is somewhere within the contract. In this case, the declarations page lists "Forms and Endorsements." In that list is "FP CGCC (03/08)." This is the warning given to the insured. By contrast, the declarations page has two issues disclosed in bold type. Section 627.7011(4), Florida Statutes (2008), required a policy to "include" a statement in bold type concerning "law and ordinance coverage." Florida Peninsula dutifully placed that warning on the declarations page. Likewise, section 627.701(4)(a), Florida Statutes, required a bold warning on the "face" of the policy that the policy contained a separate deductible for hurricane losses....

...aintiff is entitled to coverage and a determination of the total amount of all damages sustained notwithstanding Defendants' failure to timely resolve the claim. It also asks for a judgment that the insurance contract fails to comply with Fla. Stat. § 627.701(1)(a-b) and (4)(a), and therefore the coinsurance and separate hurricane deductible provisions are void and unenforceable....

...to the terms and conditions of the contract, the Plaintiff has a valid and enforceable right to coverage and to a determination of the total amount of all damages; and (c) a declaration that the insurance contract fails to comply with Fla. Stats. §§ 627.701(1)(a-b) and (4)(a), in that the coinsurance and a separate hurricane deductible provisions are void and unenforceable....