Florida/Georgia Personal Injury & Workers Compensation

...eing required to participate in the appraisal process because it had not been provided notice of the availability of mediation—a notice requirement that was imposed on commercial residential insurers, such as Southern Family, by a 2005 amendment to section 627.7015, Florida Statutes, a provision of the Florida *191 Insurance Code....

...o provide for the appeal of nonfinal orders regarding entitlement to an appraisal under an insurance policy. See In re Amendments to Fla. Rules of Appellate Procedure , 2 So.3d 89, 90 (Fla.2008). On appeal, the Fourth District affirmed, holding that section 627.7015, Florida Statutes, as amended in 2005, applied retroactively to Devon's 2004 contract of insurance, including the amendment to section 627.7015(7) barring the insurer from exercising its right to an appraisal if the insurer does not give notice of mediation under subsection (2) of the statute. Because Devon had not been given notice of the availability of mediation, the district court held that section 627.7015(7) applied to bar FIGA from availing itself of the appraisal process provided in the policy. Thus, we turn next to a discussion of the 2005 amendments to section 627.7015, Florida Statutes. Section 627.7015, Florida Statutes Section 627.7015 was first enacted in 1993. See ch. 93-410, § 20, Laws of Fla. It provided for alternative dispute resolution of claims made under homeowners' residential insurance policies before commencing the appraisal process that most homeowners' policies required. See § 627.7015(1), Fla. Stat. (1994 Supp.). From its inception, the statute required that when a first-party claim is filed, the homeowner's residential insurer shall notify the claimant of the right to participate in the mediation program provided in the statute. See § 627.7015(2), Fla. Stat. (1994 Supp.). The statute was amended in 2005 to expand its scope, for the first time, to "commercial residential insurance policies" such as Devon's condominium association policy in this case. See ch. 2005-111, § 15, Laws of Fla. [5] Section 627.7015 was also amended in 2005 to provide that an insurer—now including a commercial residential insurer—which fails to give the notice of mediation required by subsection (2) is barred from insisting that the insured participate in the appraisal process provided in the insurance policy as a precondition to suit. The pertinent provisions of the statute, with the 2005 amendment language underlined, are set forth below: Section 15. Effective July 1, 2005, subsections (1) and (7) of section 627.7015, Florida Statutes, are amended, and subsection (2) of that section is reenacted, to read: 627.7015 Alternative procedure for resolution of disputed property insurance claims.— (1) PURPOSE AND SCOPE.—This section sets forth a nonadversarial alternative dispute resolution procedure for a mediated claim resolution conference prompted by th...

...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. Ch.2005-111, § 15, at 1092, Laws of Fla. The stated effective date of the amendments to section 627.7015 was July 1, 2005. The 2005 amendments to section 627.7015 made two important changes to existing law: First, the amendments applied the preexisting mediation alternative and notice requirement, as well as the requirement that the insurer pay for mediation, to "commercial residential insuran...

...ment that if the insurer fails to give notice of mediation under subsection (2), the insured "shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action." § 627.7015(7), Fla....

...If there is an appraisal, we will still retain our right to deny the claim. FIGA *193 argued in the trial court that the 2005 amendments could not be applied retroactively to claims made under Devon's 2004 insurance policy, but the trial court disagreed, applied section 627.7015(7) as amended, and refused to enforce the appraisal provision....

...tended the 2005 amendments to apply retroactively, we quash the decision of the district court. The Decision Under Review FIGA argued in the district court that the trial court erred in not enforcing the insurance contract right to appraisal because section 627.7015, as amended in 2005, did not apply retroactively to commercial residential policies issued in 2004....

...impairment of contract. Fla. Ins. Guar. Ass'n, Inc. , 33 So.3d at 51. The Fourth District applied the balancing test set forth in Pomponio v. Claridge of Pompano Condominium, Inc. , 378 So.2d 774, 780 (Fla.1979), and held that the 2005 amendments to section 627.7015 could be applied constitutionally in a retroactive manner to the 2004 contract of insurance....

...The amendments further imposed a new penalty on both commercial residential insurers as well as homeowners' residential insurers— the loss of the right to the contractual appraisal if the insurer fails to give notice of the mediation alternative. Thus, section 627.7015 as amended in 2005 cannot be characterized as simply procedural or remedial, but was clearly substantive. Therefore, the presumption against retroactive application of the substantive amendments to section 627.7015 applies in this case....

...ing with a search for clear evidence of legislative intent for retroactivity. The Fourth District in the present case did not inquire into whether there existed clear legislative intent for retroactive application of the 2005 amendments contained in section 627.7015....

...Instead, the district court proceeded directly to the second inquiry concerning whether retroactive application would be constitutional. Because the first prong of the test for retroactivity requires the court to determine if there is clear legislative intent to apply the 2005 amendments to section 627.7015 retroactively, we examine that question next. In the present case, the text of the amendment itself is silent as to its forward or backward reach. However, the enacting law specifically states that the amendments to section 627.7015 are to be effective July 1, 2005....

...e date in a statute will always supersede the clearly expressed legislative intent that the statute be applied retroactively." Chase Federal , 737 So.2d at 502. In the present case, however, we find no "clearly expressed legislative intent" to apply section 627.7015, as amended in 2005, retroactively. Devon contends that a review of chapter 2005-111, Laws of Florida, in its entirety indicates that the amendments to section 627.7015 are intended to be retroactive....

...Olin Corp. , 107 F.3d 1506, 1513 (11th Cir.1997)). However, we disagree with Devon that anything in the language, structure, purpose, or legislative history of chapter 2005-111 provides clear evidence of legislative intent to apply the 2005 amendments to section 627.7015 retroactively. Devon argues that intent for retroactivity is shown by the fact that nothing in the act states that the amendments to section 627.7015 are inapplicable to existing contracts....

...This argument runs counter to case law that requires clear evidence of legislative intent for retroactive application of a statute. Based on our review of the language, structure, purpose, and legislative history of the enactment, we conclude that there is no clear evidence of legislative intent that the 2005 amendments to section 627.7015 are to be applied retroactively....

...y with policy conditions and the fact that loss from wear and tear was not covered. Keelean disagreed with the insurer's assessment, and demanded payment for his claim. Florida Select rejected his demand and offered to mediate the matter pursuant to section 627.7015, Florida Statutes (1995), and Rule 4-166.031 of the Florida Administrative Code....

...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)....

...State Farm responded with a demand for an appraisal pursuant to the appraisal provision in the insurance contract. Lime Bay responded that it would not participate in the appraisal process until State Farm provided proof of compliance with the mediation notification requirements of subsection 627.7015(2)1, Florida Statutes (2012). Subsection 627.7015(7) provides that the insured is not required to participate in the appraisal process until the insurer complies with subsection (2)....

...appraisal award. Therefore, State Farm did not breach the contract. The trial court denied State Farm’s motion and granted Lime Bay’s motion. The court found that State Farm failed to prove that it complied with the mediation notification requirements of section 627.7015 and that State Farm’s voluntary payment after Lime Bay filed suit was a confession 1Subsection 627.7015(2), Florida Statutes (2012) provides: “At the time a first- party claim within the scope of this section is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program u...

...before filing suit. In the trial court and on appeal, Lime Bay argues that it was not required to participate in the appraisal process because State Farm failed to prove that it notified Lime Bay of its right to mediate. As previously noted, subsection 627.7015(7) states that the insured is not required to participate in any contractual appraisal process unless the insurer complies with subsection 627.7015(2) and notifies the insured of its right to mediation. When State Farm invoked its right to appraisal, Lime Bay requested proof of State Farm’s compliance with section 627.7015’s, mediation notification requirements. State Farm filed an affidavit stating that it complied with subsection 627.7015(2)’s requirements by notifying Lime Bay of its right to mediate the claim in two different letters in March and May of 2006. 4  Lime Bay argues that the notice of mediation contained in these letters was untimely because subsection 627.7015(2) states that the insurer shall notify the claimants of their right to participate in the mediation program, “[a]t the time a first-party claim within the scope of the section is filed.” Since State Farm’s notice of the right to mediate was not sent until March 2006, five months after Lime Bay filed its claim, Lime Bay argues that State Farm did not prove that it fully complied with subsection 627.7015(2). We disagree because the subsection 627.7015(2) notice requirement does not ripen until the insurer is on notice that there is a dispute between the insurer and the policyholder relating to a material issue of fact. Subsections 627.7015(2) and (9) must be read together. Subsection 627.7015(9) provides: (9) For purposes of this section, the term “claim” refers to any dispute between an insurer and a policyholder relating to a material issue of fact other than a dispute: (a) With respect t...

...(d) With respect to which the amount in controversy is less than $500, unless the parties agree to mediate a dispute involving a lesser amount; or (e) With respect to a windstorm or hurricane loss that does not comply with s. 627.70132. § 627.7015(9), Fla. Stat. (2012) (emphasis added). The facts of this case do not meet any of the exceptions listed in subsection 627.7015(9)....

...employee clearly shows that State Farm knew there was a dispute over whether the roof needed replacement, rather than repair. We are satisfied that there are disputes of material fact as to whether there was timely compliance with the notice requirements of subsection 627.7015(2), which in turn leaves a dispute of material fact as to whether Lime Bay was compelled to file suit and whether there was a confession of judgment as a matter of law. As this case is being remanded for evidentiary findings, we...

...Citizens correctly argues that neutral evaluation, once requested, is mandatory. The trial court’s determination that neutral evaluation was waived conflicts with the express language of the statute. “Neutral evaluation is available to either party,” “supersedes the alternative dispute resolution process under s. 627.7015,” and is “mandatory if requested by either party.” § 627.7074(2), (3), (4)....

...analysis; cf. § 120.56(4)(b), Fla. Stat. (2011) (providing for stay of administrative proceedings during rulemaking process). The statute also expressly states that “[n]eutral evaluation supersedes the alternative dispute resolution process under s. 627.7015.” § 627.7074(3). Section 627.7015 discusses its “nonadversarial alternative dispute resolution procedure” as a substi *680 tute for litigation where the dispute is resolved or as a precursor to litigation where it is not. See Fla. Ins. Guar. Ass’n, Inc. v. Shadow Wood Condo. Ass’n, 26 So.3d 610, 614 (Fla. 4th DCA 2009). There would be no need for neutral evaluation to supersede section 627.7015 if the two provided the same process....

...Universal filed its answer and affirmative defenses, and, in late September 2010, filed a motion for the appointment of a neutral umpire and concurrent motion for stay (the "Motion"). Following a hearing, the trial court denied the Motion based upon Universal's failure to comply with section 627.7015, Florida Statutes (2009). We affirm. Section 627.7015 sets forth an alternative mediation procedure for resolution of disputed property insurance claims and highlights the "particular need for an informal, nonthreatening forum for helping parties ... because most homeowner's ... residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation." § 627.7015(1), Fla....

...The statute specifically provides that "[a]t the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under *1243 this section." § 627.7015(2), Fla....

...ed 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. (2009) (emphasis added). The statutory requirements are further clarified in rule 69J-166.031 of the Florida Administrative Code, which "implements Section 627.7015, F.S.[,]" and specifies that: 1....

...d be applied in a manner consistent with its plain meaning." Banton v. State Farm Mut. Auto. Ins. Co., 54 So.3d 1062, 1063 (Fla. 3d DCA 2011) (quoting Turnberry Invs., Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010)). The plain language of section 627.7015, as well as that of rule 69-166.031, clearly provide that if an insurer fails to supply written notice of the right to mediate, the insured shall not be required to engage in a contractual loss appraisal process as a prerequisite to litigation. See § 627.7015, Fla. Stat. (2009); Fla. Admin. Code R. 69-166.031. In the case before us, Universal did not send notice to the Insureds regarding the right to participate in the state mediation program as required by section 627.7015....

...However, as noted above, the parties did utilize the mediation program. Despite [the insurer'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)....

...ss. Id. at 1258 (emphasis added). We find this persuasive. Here, the Insureds provided affidavits stating that they never received the statutorily required notice from Universal. In addition, Universal, produced no evidence that it had complied with section 627.7015....

...Ass'n, Inc. v. Shadow Wood Condo. Ass'n, 26 So.3d 610, 614 (Fla. 4th DCA 2009) (holding that insured was not required to participate in a contractual loss appraisal process where the insurer's predecessor had failed to provide written notice as required by section 627.7015(2))....

...participate in the process through its conclusion. Again, no case law supports these arguments. First, the language in the Policy does not include all of the information required by rule 69J-166.031. See Fla. Admin. Code R. 69J-166.031. Furthermore, section 627.7015 clearly places the burden of notification upon the insurer and specifies that, absent proper notification, an insured cannot be required to participate in the appraisal process. See § 627.7015(2) & (7), Fla....

...Were we to follow Universal's theory of interpretation, we would be contravening the purpose of the statute as an insurance carrier could, by *1245 withholding notification, trap an uninformed insured into the very same potentially lengthy and costly appraisal process the statute was meant to guard against. See § 627.7015(1) ("This section sets forth a nonadversarial alternative dispute resolution procedure for a mediated claim resolution conference prompted by the need for effective, fair, and timely handling of property insurance claims."); Fla....

...Admin. Code R. 69J-166.031 ("The program established under this rule is prompted by the critical need for effective, fair, and timely handling of residential property claims."). Quite simply, because Universal did not comply with the requirements of section 627.7015 and rule 69J-166.031, "the [I]nsured[s] shall not be required to ... participate in [the] contractual loss appraisal process ... as a precondition to legal action." See § 627.7015(7)....

...Florida Insurance Guaranty Association, Inc. ("FIGA") timely appeals a non-final order denying its request to compel an appraisal under an insurance policy. We affirm, holding that the insolvent insurance company, FIGA's predecessor, failed to comply with the notice requirement of section 627.7015(2), Florida Statutes (2005), so that the insured was not required to submit to the loss appraisal process....

...On June 19, 2008, FIGA filed a motion to compel the appraisal process and to stay the action until it was completed. FIGA did not "wholly dispute coverage," only the "amount of covered loss." The trial court denied FIGA's motion on January 21, 2009. This case turns on the applicability of section 627.7015, Florida Statutes (2005), to the terms of the Southern Family policy....

...The appraisal is not binding and the policy places the additional expense of the appraisal process upon the insured as a condition of filing a lawsuit. It was this imposition of additional costs on an insured that the legislature sought to address in section 627.7015....

...ing adversarial appraisal process prior to litigation. 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. § 627.7015(1), Fla. Stat. (2005) (emphasis added). Subsection 627.7015(2) requires the insurer to "notify all first-party claimants of their right to participate in the mediation program under" section 627.7015 "[a]t the time a first-party claim within the scope of this section is filed." § 627.7015(2), Fla. Stat. (2005). If an insurer fails to comply with the section 627.7015(2) notice requirement, then the insured shall not be required 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). The purpose of the statute was to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims "prior to commencing the appraisal process, or commencing litigation." § 627.7015(1), Fla....

...Because the statute applies to consumer related claims—to claims arising out of "homeowner's and commercial residential insurance policies"—the statute requires the insurer to notify the consumer of the availability of the mediation. Southern Family did not give the section 627.7015 notice at the time Shadow Wood filed its claim shortly after Hurricane Wilma. FIGA is bound by Southern Family's failure to give the section 627.7015 notice, so that section 627.7015(7) applies....

...rer to the extent of its obligation on the covered 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." Reading section 631.57(1)(b) together with section 627.7015, it does not appear that the legislature intended to excuse FIGA from the notice requirement....

...This makes sense, because, in cases where an insurer's insolvency brings FIGA into the picture, there will typically have been a substantial delay since the insured experienced a loss, so that elimination of a non-binding appraisal process as a "precondition to legal action" would avoid further cost and delay. § 627.7015(7), Fla. Stat. (2005). FIGA attempts to avoid the application of section 627.7015 by citing to a line of cases where courts have refused to hold FIGA liable for the misdeeds of a defunct insurer, beyond those arising out of an insurance policy....

...5th DCA 1989), the fifth district refused to hold FIGA responsible for the negligence of an insurance agent for failing to advise the insured to obtain a different policy than the one actually issued. Williams is inapplicable here, since the application of section 627.7015 does not impose liability on FIGA, beyond the coverage of the policy, *614 for the misconduct of Southern Family....

...concerning its vicarious responsibility for the acts of the companies it succeeds"). Rather, the statute sets up a procedural mechanism affecting access to the court system. Finally, we reject FIGA's contention that the appraisal process here is not a "precondition to legal action" within the meaning of subsection 627.7015(7)....

...d not amount to a waiver of its right to an appraisal. See Fla. Ins. Guar. Ass'n v. Castilla, 18 So.3d 703, 705 (Fla. 4th DCA 2009); Wilson v. Federated Nat'l Ins. Co., 969 So.2d 1133 (Fla. 2d DCA 2007). [2] We also note that FIGA failed to give the section 627.7015 notice when it took over the claim from Southern Family....

...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....

...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....

...s of loss upon written demand by either party. Unlimited Restoration argued in its response that by State Farm participating in the mediation process it had waived its right to demand appraisal under the policy. In the view of Unlimited Restoration, section 627.7015(7), Florida Statutes (2008), rendered the appraisal provision void after an unsuccessful mediation. Section 627.7015 reads in pertinent part as follows: (2) At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section .......

...da law. The county court, agreeing -with Unlimited Restoration, denied State Farm’s motion to dismiss, and State Farm appealed to the circuit court. The circuit court affirmed the denial of the motion to dismiss or compel appraisal after examining section 627.7015 and the rule....

...t court appellate panel’s legal error. Id. at 63 ; see also Yankey v. Dep’t of Hwy. Safety and Motor Vehicles, 6 So.3d 633 (Fla. 2d DCA 2009). Using these criteria, we conclude that certiorari review is appropriate for the present case, as well. Section 627.7015 contemplates a waiver of the appraisal process by the insurer under two conditions....

...Regulation v. Salvation Ltd., Inc., 452 So.2d 65, 66 (Fla. 1st DCA 1984)). In the present case the rule, as interpreted by the lower courts, was wrong. State Farm is entitled to enforce the appraisal provisions under the contract of insurance that it issued. Section 627.7015(1), Florida Statutes, sets forth the purpose and scope of the *395 statute....

...The Subiratses had a residential property insurance policy with Fidelity. On February 19, 2010, they presented a claim for water damage to their home due to a plumbing failure. On March 5, 2010, Fidelity notified the Subiratses in writing of their right to participate in mediation, pursuant to section 627.7015, Florida Statutes (2009)....

...letion of appraisal. The Subiratses contend in granting the stay the trial court erred because Fidelity waived its right to appraisal by failing to notify them of the right to mediation within five days from the date the claim was filed, pursuant to Section 627.7015, Florida Statutes (2009), and Florida Administrative Code Rule 69J-166.031. In 1993, the Florida Legislature added section 627.7015 to the Florida Insurance Code....

...This new section of the Code authorized “a non-adversarial alternative dispute resolution procedure for mediation of insurance claims” in advance of a purportedly “[more] adversarial appraisal process,” which increasingly had found its way into property insurance contracts. The law provided in pertinent part: 627.7015....

...duling of requests for mediation. (b) Qualifications of mediators.... *1000 (c) Provisions governing who may attend mediation conferences. (d) Selection of mediators. (e) Criteria for the conduct of mediation conferences. (f) Right to legal counsel. § 627.7015, Fla. Stat. (1998). Failure to give notice excuses an insured from participating in any contractual loss appraisal process. § 627.7015(7), Fla....

...(2005). However, the case presented to us is not a case in which the insurer has failed to give notice. It merely is a case in which the insurer did not give notice before the deadline established by Department rule. That rule, adopted pursuant to section 627.7015(4), states: “Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program.” Fla....

...Save the Manatee Club, Inc., 773 So.2d 594, 599-600 (Fla. 1st DCA 2000). Moreover, an administrative rule may not modify, enlarge or contravene a statute. See State Farm Fla. Ins. Co., v. Unlimited Restoration Specialists, Inc., 84 So.3d 390 (Fla. 5th DCA 2012). The most casual perusal of section 627.7015(4) reveals the Department was not granted the authority to promulgate a deadline for notifying an insured of the right to mediation. In so doing, the Department impermissibly modified and enlarged the scope of the statute. The action of the Department also unlawfully contravened the clear statutory scheme established by the law. Section 627.7015(2) requires the insurer simply to “notify the policyholder of its right to participate in the mediation program ......

...To the contrary, the penalty specified in the rule for an insurer’s failure to give the required notice is referral to the Office of Insurance Regulation for administrative action, pursuant to section 624.15, Florida Statutes. See Rule 69J-166.031(4)(a)(4). It bears mentioning that the purpose of the notice provision in section 627.7015 was not thwarted....

...n in favor of appraisal. Once Gainey provided the sworn proof of loss statement, American requested appraisal, advising Gainey that it did not agree with her estimate. In this correspondence, American provided the statutory notice of mediation under section 627.7015, Florida Statutes (2010)....

...American moved to abate the proceedings in favor of appraisal, and the motion was initially granted. However, Gainey then moved to enjoin the appraisal and lift the stay of litigation, arguing that American had waived its right to appraisal by failing to provide timely notice of mediation under section 627.7015. Adopting Gainey’s position, a successor judge granted Gainey’s motion to enjoin appraisal, and this appeal followed. At issue in this appeal is whether the notice provision of section 627.7015(7) applies under these circumstances where the insured has commenced a cause of action against the insurance company....

...of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1000 (Fla.2003) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). Enacted in 1993, section 627.7015 provides an alternative procedure for resolution of disputed property insurance claims....

...Devon Neighborhood Ass’n, 67 So.3d 187, 191 (Fla.2011). “From its inception, the statute required that when a first-party claim is filed, the homeowner’s residential insurer shall notify the claimant of the right to participate in the mediation program provided in the statute.” Id. (citing § 627.7015(2), Fla....

...otice of mediation required by subsection (2) is barred from insisting that the insured participate in the appraisal process provided in the insurance policy as a precondition to suit.” Id. Here, Gainey sought to enforce the following provision of section 627.7015(7) to preclude American from proceeding to appraisal: If the insurer fails to comply with subsection (2) by failing to notify a first-party claimant of its right to participate in the mediation program under this section or if the in...

...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). However, the express language of section 627.7015(1) describes mediation as a viable option before an insured resorts to litigation: (1) PURPOSE AND SCOPE....

...e claims as quickly and fairly as possible. This section is available with respect to claims under personal lines and commercial residential policies for all claimants and insurers prior to commencing the appraisal process, or commencing litigation. § 627.7015(1). Stated otherwise, section 627.7015 permits insureds and insurers “to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims ‘prior to commencing the appraisal process, or commencing litigation.’” Fla. Ins. Guar. Ass’n v. Shadow Wood Condo. Ass’n, 26 So.3d 610, 613 (Fla. 4th DCA 2009) (quoting § 627.7015(1) (emphasis added)). Here, because Gainey prematurely commenced litigation against American, we conclude that the notice requirement under section 627.7015(7) does not apply....

...3d at 194 (emphasis added) (internal citations omitted). In Devon, the supreme court specifically found the amended statute it was reviewing “was clearly substantive.” Id. at 195. “Therefore, the presumption against retroactive application of the substantive amendments to section 627.7015 applies in this case.” Id....

...nclude that the safe harbor provision applies prospectively.” (alteration in original)); Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 196 (Fla. 2011) (“However, the enacting law specifically states that the amendments to section 627.7015 are to be effective July 1, 2005. See ch.2005–111, § 15, at 1092, Laws of Fla....

...policy from Appellee, Universal Property & Casualty Insurance Company (“the 1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. Insurance Company”), and sustained an alleged loss before the enactment of section 627.70152, Florida Statutes (2021). She filed her lawsuit, however, after section 627.70152’s enactment. Section 627.70152 requires an insured who desires to sue his or her property insurance carrier to file a pre-suit notice of intent to litigate with the Department of Financial Services before suing. If the insured fails to do so, section 627.70152 mandates that a court dismiss without prejudice2 any suit brought by the insured for which pre-suit notice was required. In this case, shortly after the statute’s effective date, the Insured sued the Insurance Company for breach of her property insurance policy without first filing a pre-suit notice under section 627.70152....

...y be pursued by filing a new complaint . . . .”)). We review de novo the trial court’s dismissal of the Insured’s complaint. See id. 2 Insurance Co., 35 So. 3d 873 (Fla. 2010), the Insured argues that section 627.70152 is a substantive statute that cannot apply to a claim brought under an insurance policy purchased before the statute’s enactment....

...though we might decide differently if writing on a blank slate, we conclude that we are bound by Menendez and its progeny. We therefore reverse and certify conflict with Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023). Section 627.70152, Florida Statutes (2021) When the Insured filed her lawsuit in August 2021, section 627.70152 contained eight interrelated subsections. 3 We begin by discussing the relevant provisions and their relation to each other. Section 627.70152(1) states that “[t]his section applies exclusively to all suits not brought by an assignee arising under a residential or commercial property insurance policy . . . .” Section 627.70152(3)(a) creates the pre-suit notice requirement: As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a 3 Section 627.70152 was amended in May 2022 and again in December 2022. Throughout this opinion, the Court discusses section 627.70152 as it read when the Insured filed the lawsuit below in August 2021. 3  determination of coverage under s....

...the insurer other than denial of coverage, both of the following: a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Section 627.70152(3)(b) tolls the statute of limitations, in certain circumstances, for claims subject to the pre-suit notice requirement. That subsection provides that “[s]ervice of a [pre-suit] notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period.” Section 627.70152(4) imposes a duty on insurers to create procedures to investigate and evaluate claims asserted in pre-suit notices and to respond in writing to such notices: An insurer must have a procedure for the prompt investigation, re...

...An insurer must respond in writing within 10 business days after receiving the notice specified in subsection (3). The insurer must provide the response to the claimant by e-mail if the insured has designated an e-mail address in the notice. Section 627.70152(4)(a) requires that “[i]f an insurer is responding to a notice served on the insurer following a denial of coverage by the insurer, the insurer must respond by: 1. Accepting coverage; 2. Continuing to deny coverage; or 3. Asserting the right to reinspect the damaged property.” § 627.70152(4)(a)1.–3., Fla....

...The statute then explains that “[i]f the insurer responds by asserting the right to reinspect the damaged property, it has 14 business days after the response asserting that right to reinspect the property and accept or continue to deny coverage.” § 627.70152(4)(a)3....

...95.11 are tolled during the reinspection period if such time limits expire before the end of the reinspection period. If the insurer continues to deny coverage, the claimant may file suit without providing additional notice to the insurer. Id. Section 627.70152(4)(b) requires insurers that did not completely deny coverage of an initial claim to respond to a pre-suit notice with a settlement offer or by demanding that the claimant participate in an alternative dispute resolution process:...

...te resolution process: The time limits provided in s. 95.11 are tolled as long as appraisal or other alternative dispute resolution is ongoing if such time limits expire during the appraisal process or dispute resolution process. § 627.70152(4)(b). Section 627.70152(5) imposes a penalty of dismissal without prejudice for claimants who file suit without first providing the required pre-suit notice: A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable. Section 627.70152(7) provides for yet more tolling of the statute of limitations for thirty days after the “presuit notice process”: If a claim is not resolved during the presuit notice process and if the time limits provided in s. 95.11 expire in the 30 days following the conclusion of the presuit notice process, such time limits are tolled for 30 days. 6  Section 627.70152(8) contains multiple provisions concerning a claimant’s ability to recover attorneys’ fees.4 Relevant to the pre-suit notice requirement, section 627.70152(8)(b) provides that where a claimant’s lawsuit is dismissed for failure to provide the pre-suit notice, the claimant may not recover any attorneys’ fees incurred for services rendered before the dismissal. Thus, section 627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims....

...pletely, requires insurers to make a pre- suit settlement demand. The statute mandates insurers to create and apply a new set of procedures to investigate, evaluate, and respond to pre-suit notices. The statute 4 The bill enacting section 627.70152 also amended section 627.428, Florida Statutes, which provided for awards of appellate fees to claimants who prevailed against the insurer....

...brought by assignees are no longer entitled to recover reasonable attorneys’ fees incurred in any action in which a judgment is rendered in favor of the insured, no matter the recovery. Instead, the amounts of attorneys’ fees awards in such lawsuits are governed by section 627.70152(8), which provides a specific method for determining the amount of an award of attorneys’ fees based on the amount of recovery. Because we determine that section 627.70152 is substantive and cannot be applied retroactively even without considering the changes to the method of calculating attorneys’ fees awards, we need not consider whether the change to the method of calculating attorneys’ fees awards is severable from the rest of the statutory enactment for purposes of determining retroactivity. On December 16, 2022, the Governor signed into law a bill further amending section 627.428 and deleting section 627.70152(8)....

...property insurance policy. 7 also contains four provisions altering the statute of limitations that would otherwise apply to an insured’s claim under section 95.11, Florida Statutes. Most significantly, section 627.70152 creates a safe harbor for insurance companies. Before section 627.70152’s enactment, an insurer had a single opportunity to evaluate and pay an insurance claim before being sued—when the insured made the claim....

...If an insurer wrongfully denied a claim, the insured immediately possessed a cause of action against the insurance company for breach of the insurance policy, and the insured could immediately sue the insurance company to recover damages and attorneys’ fees. After section 627.70152’s enactment, an insurer now has a second opportunity to evaluate and pay a claim and to prevent the insured from asserting a cause of action for breach of the insurance policy....

...vokes its right to reinspect the damaged property, the insurance company will have an additional 14 business days in which it can accept coverage and avoid the accrual of the insured’s cause of action for breach of the insurance policy. In sum, section 627.70152 significantly alters an 8 insurer’s obligation to pay and an insured’s right to sue under a property insurance policy. Analysis on Section 627.70152’s Retroactive Application On appeal, the Insured argues that section 627.70152 is a substantive statute that cannot apply retroactively to a claim brought under an insurance policy she purchased before the statute’s enactment....

...While these arguments have some allure, we do not decide this case on a blank slate. The Florida Supreme Court has addressed when statutes may apply retroactively and we must apply its precedent faithfully, even if we might decide the case differently as a matter of first principles. I. Applying Section 627.70152 to the Insured’s Lawsuit Would Constitute a Retroactive Application of the Statute. The parties appear to agree that the operative date for determining section 627.70152’s retroactive application is the subject policy’s issuance date....

...connection with that contract.’” Menendez, 35 So. 3d at 876 (quoting Hassen v. State Farm Mut. Auto. Ins., 674 So. 2d 106, 108 (Fla. 1996)). It is therefore clear the 9 Insurance Company seeks to apply section 627.70152 retroactively. The question remaining is whether the law allows it. II. Section 627.70152 cannot be applied retroactively. The Florida Supreme Court has set forth a two-part test to determine whether a statute enacted after an insurance policy’s issuance applies retroactively. Menendez, 35 So....

...dens, the presumption against retroactivity would still apply.” (quoting Chase Fed., 737 So. 2d at 500 n.9)). In other words, the second prong of the test determines whether the statute is substantive. (a) The Legislature did not intend for section 627.70152 to apply retroactively. Section 627.70152’s text contains no clear evidence of legislative intent for retroactive application; there is no statutory language calling for application of the statute to insurance policies issued before the statute’s effective date. In fact, section 627.70152 makes no mention at all of insurance policies issued before the statute’s enactment....

...See Devon, 67 So. 3d at 196 (“We have noted that the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law.”). And of course, the Legislature wrote section 627.70152 and included 11 the effective date against the backdrop of the Florida Supreme Court’s clear precedent mandating that courts look “at the date the insurance policy was issued and not the date that the suit was filed.” Menendez, 35 So. 3d at 876. The Insurance Company argues that the Legislature intended for section 627.70152 to apply retroactively because the statute states that it applies to “all suits arising under a residential or commercial property insurance policy.” “All suits” in section 627.70152(1), the argument goes, would include suits concerning insurance policies issued both before and after the effective date of the statute....

...Legislature declared “are remedial in nature and operate retroactively to the regulation of surplus lines insurers from October 1, 1988,” and opining that “[a] more clear expression of legislative intent could hardly be found”). Accordingly, if the Legislature intended for section 627.70152 to apply retroactively to insurance policies issued before the statute’s effective date, it knew how to say so....

...that courts would look to “the date the insurance policy was issued and not the date that the suit was filed.” Menendez, 35 So. 3d at 876. We note that the Fourth District recently opined that the Legislature did express a clear intent for section 627.70152 to apply retroactively....

...nd provides that “[a]s a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department.” § 627.70152(3)(a), Fla....

...policies does not constitute clear evidence of retroactive intent. See Devon, 67 So. 3d at 197. In short, clear evidence must consist of more than silence. 14  (b) Even if the Legislature intended section 627.70152 to apply retroactively, section 627.70152 is substantive under precedent of the Florida Supreme Court and cannot be applied retroactively. Even if we agreed with the Fourth District that section 627.70152 contains clear evidence of legislative intent to apply the statute retroactively, we would nonetheless find that the statute is substantive and therefore cannot be applied retroactively. Simply put, Menendez’s holding compels a finding that section 627.70152 is substantive in nature. Menendez involved an amendment to Florida’s “Required Personal Injury Protection” (“PIP”) statute that imposed a pre-suit notice requirement similar to the requirement imposed by section 627.70152....

...e insured’s right to institute a cause of action.” Id. Importantly, the provision implicating attorneys’ fees at issue in Menendez did not completely eliminate the insured’s right to recover attorneys’ fees. Id. Rather, just like section 627.70152, the provision simply delayed the insured’s ability to recover attorneys’ fees until after the pre-suit notice process and, if the claim was resolved during the pre-suit notice process, then prevented the insured recovering attorneys’ fees....

...rer an extra 16 days to provide benefits before incurring responsibility for attorneys’ fees a substantive statutory change. Menendez, 35 So. 3d at 879 (citing Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437, 438 (Fla. 1st DCA 2004)). Here, section 627.70152 potentially allows an insurance company an extra 24 days to pay a claim before exposure to an insured’s attorneys’ fees. 16  The Florida Supreme Court also relied on another...

...found a statute was substantive because it created a safe harbor allowing a party to avoid a claim for attorneys’ fees. Id. (citing Walker v. Cash Register Auto Ins. of Leon Cnty., Inc., 946 So. 2d 66 (Fla. 1st DCA 2006)). This is exactly what section 627.70152 does, and the Menendez Court’s conclusion applies to the Insured’s situation: [T]he 2001 statutory amendment cannot be applied retroactively because it allows an insurer to avoid an award of attorneys’ fees, whi...

...Thus, the amendment relieves the insurer of the obligation to pay fees and also constitutes a substantive change to the statute as it existed before the 2001 amendment. Menendez, 35 So. 3d at 879. Just like the amendment to the PIP statute at issue in Menendez, section 627.70152 allows an insurer to avoid an award of attorneys’ fees by paying a claim during the safe harbor period provided by the pre-suit notice process....

...ue until that time expired. Id. The supreme court found that the additional time “substantively alters an insurer’s obligation to pay and an insured’s right to sue under the contract.” Id. In this respect, the pre-suit notice provision in section 627.70152 is indistinguishable from the pre-suit notice provision at issue in Menendez. Section 627.70152 provides an insurer additional time to pay property insurance benefits, and an insured cannot sue to recover these benefits until the additional time expires....

...to sue and recover attorneys’ fees. Menendez, 35 So. 3d at 879–80 (emphasis added). Indeed, except for the words, “which requires the inclusion of additional information that the insured may not have access to,” this paragraph could have been written about section 627.70152. The Cole court distinguished Menendez on two grounds, but a subsequent unanimous Florida Supreme Court decision easily resolves these distinctions. Compare Devon, 67 So....

...In Devon, the Florida Supreme Court applied Menendez’s two-part test to a case— like this one—involving a property insurance policy. 67 So. 3d at 189. At issue in Devon were a 2004 insurance policy and 2005 statutory amendments to an insurance statute, section 627.7015, Florida Statutes....

...on. Id. at 191. Failure to notify precluded the insurer from exercising its appraisal rights. Id. Before amendment, and at the time the parties entered into the insurance contract, the statute only applied to homeowner’s insurance policies. See § 627.7015(1) & (7), Fla. Stat. (2004). The 2005 statutory amendment, however, expanded the notice obligation to commercial residential policies. See § 627.7015(1) & (7), Fla....

...a whole,” we cannot view this 21 subtle distinction as dispositive. See 35 So. 3d at 880. Even if we could, the 2005 statutory amendments in Devon applied to more than one statutory subsection. Compare § 627.7015(1) & (7), Fla. Stat. (2005), with § 627.7015(1) & (7), Fla. Stat. (2004). Therefore, bound by Menendez and its progeny, we find that section 627.70152 is substantive and cannot be applied retroactively to insurance policies issued before the statute’s effective date. CONCLUSION Florida Supreme Court precedent requires us to hold that section 627.70152 does not apply retroactively to insurance policies entered into before the statute’s effective date, both because the statute does not include clear evidence of intent for the statute to apply retroactively and because the statute is substantive and cannot constitutionally be applied retroactively....

...dial, but was clearly substantive. Therefore, the presumption against retroactive application of the substantive amendments . . . applies in this case.” Id. at 195. In this appeal, Devon requires us to determine whether the provisions of section 627.70152 at issue are substantive. Before we do so, however, we must decide which provisions are at issue. The trial court granted the Insurance Company’s motion to dismiss pursuant to section 627.70152(5) because it found that 26 the Insured totally failed to comply with section 627.70152(3)(a) and retroactive application was required by section 627.70152(1). The supreme court made clear that the two-prong test must be applied “in determining the question of retroactivity of a legislative enactment.” Devon, 67 So. 3d at 196....

...An appellate court reviews decisions on matters presented to, and ruled upon by, the lower tribunal. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 8:7 & n.1 (2023 ed.). Here, the trial court was presented with, and ruled upon, the question of retroactivity of sections 627.70152(1), (3)(a) and (5). Thus, we must confine our review to the trial court’s decision on the question of retroactivity of those provisions. Taken together, sections 627.70152(1), (3)(a) and (5) created a new duty by requiring a written notice of intent to initiate litigation as a condition precedent to filing a suit arising under a property insurance policy....

...and a new penalty (dismissal and loss of filing fee) for noncompliance with the new duty. Therefore, those provisions are substantive. See Love, 286 So. 3d at 185-86; Devon, 67 So. 3d at 194-95; Caple, 753 So. 2d at 53-54. Because sections 627.70152(1), (3)(a) and (5) are substantive, the presumption against retroactive application governs....

...analysis to inquire into whether there is clear evidence of legislative intent. Id. (citations and quotations omitted). The statutory provisions at issue in this case do not clearly state that they are to apply retroactively. However, the enacting law that created section 627.70152 states that it is to take effect on July 1, 2021....

...3d at 196. It is of no moment that the enacting law does not state that it is inapplicable to suits arising under property insurance policies issued prior to the effective date. See id. at 197. Discerning no clear evidence of legislative intent to apply sections 627.70152(1), (3)(a) and (5) retroactively, I conclude that those provisions may not 28 be utilized to dismiss the Insured’s suit that arose under the policy that was issued by the Insurance Company before July 1, 2021....

...That order is the subject of this appeal. We reverse the trial court’s order staying the lawsuit pending the completion of the appraisal process. Gassman argues that the trial court erred in granting the stay because State Farm failed to comply with the requirement in section 627.7015, Florida Statutes (2007), of notifying her of her right to participate in mediation when an insured files a first party claim for the property damage. State Farm argues that it did not violate section 627.7015 because there was never a “dispute between an insurer and an insured relating to a material issue of fact.” § 627.7015(9), Fla. Stat. (2007). We agree with Gassman. This court reviews de novo a trial court’s order compelling an appraisal under an insurance policy. Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 130 (Fla. 4th DCA 2010). Section 627.7015 provides for an alternative procedure for resolution of disputed property insurance claims....

...procedure to resolve their claims disputes because most homeowner’s and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation.” § 627.7015(1), Fla....

...shall notify all first-party claimants of their right to participate in the mediation program under this section. The department shall prepare a consumer information pamphlet for distribution to persons participating in mediation under this section. § 627.7015(2), Fla....

...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....

...The insurer answered and filed its affirmative defenses. Thereafter, the insurer filed a motion for stay and a motion for appointment of a neutral umpire as set forth in the policy. After a hearing, the trial court denied the motion because the insurer failed to comply with section 627.7015. On appeal, the district court cites to the subsections of section 627.7015 set out above and Florida Administrative Code Rule 69J-166.03K1) & (4)(a). The rule implements section 627.7015 and specifies that: 1....

...Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program. Fla. Admin. Code R. 69J-166.031(4)(a)l. The Third District concluded: The plain language of section 627.7015, as well as that of rule 69-166.031, clearly provide that if an insurer fails to supply written notice of the right to mediate, the insured shall not be required to engage in a contractual loss appraisal process as a prerequisite to litigation....

...Ass’n, Inc. v. Shadow Wood Condo. Ass’n, 26 So.3d 610 (Fla. 4th DCA 2009) (insurer’s failure to notify condominium association of its right to participate in presuit mediation relieved association of the obligation to participate in appraisal process). Section 627.7015(9), Florida Statutes, provides: (9) For purposes of this section, the term “claim” refers to any dispute between an insurer and an insured relating to a material issue of fact other than a dispute: (a) With respect to which the i...

...e entire request for payment of a loss has been denied on the basis of the material misrepresentation; or (d) With respect to which the amount in controversy is less than $500, unless the parties agree to mediate a dispute involving a lesser amount. § 627.7015(9), Fla....

...State Farm responded with a demand for an appraisal pursuant to the appraisal provision in the insurance contract. Lime Bay responded that it would not participate in the appraisal process until State Farm provided proof of compliance with the mediation notification requirements of section 627.7015(2), Florida Statutes (2012). Section 627.7015(7) provides that the insured is not required to participate in the appraisal process until the insurer complies with subsection (2)....

...appraisal award. Therefore, State Farm did not breach the contract. The trial court denied State Farm’s motion and granted Lime Bay’s motion. The court found that State Farm failed to prove that it complied with the mediation notification requirements of section 627.7015 and that State Farm’s voluntary payment after Lime Bay filed suit was a confession of judgment as a matter of law. The standard of review for an order granting summary judgment is de novo....

...precedent to filing suit. In the trial court and on appeal, Lime Bay argues that it was not required to participate in the appraisal process because State Farm failed to prove that it notified Lime Bay of its right to mediate. As previously noted, subsection 627.7015(7) states that the insured is not required to participate in any contractual appraisal process unless the insurer complies with subsection 627.7015(2) and notifies the insured of its right to mediation. When State Farm invoked its right to appraisal, Lime Bay requested proof of State Farm’s compliance with section 627.7015’s, mediation notification requirements. State Farm filed an affidavit stating that it complied with subsection 627.7015(2)’s requirements by notifying Lime Bay of its right to mediate the claim in two different letters in March and May of 2006. Lime Bay argues that the notice of mediation contained in these letters was untimely because subsection 627.7015(2) states that the insurer shall notify the claimants of their right to participate in the mediation program, “[a]t the time a first-party claim within the scope of the section is filed.” Since State Farm’s notice of the right to mediate was not sent until March 2006, five months after Lime Bay filed its claim, Lime Bay argues that State Farm did not prove that it fully complied with subsection 4 627.7015(2). We agree. Despite the March and May 2006 letters, notifying Lime Bay of its right to mediate any dispute, State Farm did not fully comply with section 627.7015(2). State Farm failed to prove that it provided Lime Bay with notification of its right to mediate, at the time Lime Bay filed its claim. Along with finding that State Farm did not comply with section 627.7015(2), the trial court found that State Farm’s voluntary payment of the appraisal award was a confession of judgment....

...It also renewed a prior motion to compel an appraisal and alleged that the parties’ dispute was not related to coverage but rather to the cause and amount of damage. Schneider responded with its own motion for summary judgment on its claim for declaratory relief asserting that under section 627.7015(7), Florida Statutes (2005), and Florida Administrative Code Rule 69J-2.003(10) (2005) 2 , it was not required to participate in an appraisal because only an insured can choose appraisal after an unsuccessful mediation. The trial court agreed with Schneider’s interpretation of section 627.7015 and rule 69J-2.003(10) and denied FPIC’s amended motion for summary judgment and renewed motion to compel an appraisal....

...On appeal, FPIC argues that in granting Schneider declaratory relief, the trial court erred by relying on an administrative rule that not only improperly expands the express language of the statute but deprives it of its right to an appraisal under the contract. We agree. Section 627.7015 provides an alternative procedure for resolution of disputed property insurance claims. Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187 (Fla.2011). The purpose of the statute is to use mediation to resolve insurance claim disputes before resorting to the appraisal process or litigation. § 627.7015(1)....

...Under the version of the statute in effect when the parties entered into the contract, the insured was not required to submit to an appraisal before suing the insurer if the insurer requested mediation and the results of the mediation were rejected by either party. § 627.7015(7)....

...pt the reasoning of the Fifth District in State Farm Florida Insurance Co. v. Unlimited Restoration Specialists, Inc., 84 So.3d 390 (Fla. 5th DCA 2012), that reliance on such an administrative rule is error in that it improperly modifies and expands section 627.7015 by providing the insured with an option to resolve disputed property insurance claims not envisioned by the statute. See id. at 394-95 (holding that section 627.7015 only contemplates a waiver of an appraisal when an insurer fails to notify its insured of the right to mediation or when the insurer itself requests mediation and the mediation is unsuccessful); see also Johnson v....

...ranting People’s Trust Insurance Company’s motion to abate and compel appraisal. The Grnjas argue that People’s Trust waived its right to appraisal by failing to give timely notice of the Grnjas’ right to participate in mediation pursuant to section 627.7015, Florida Statutes (2021)....

...Enclosed for your review, please find the FDFS Mediation Brochure which details the program’s guidelines and contact information. (Emphasis omitted). The accompanying brochure provided more information regarding mediation pursuant to section 627.7015 to resolve claim disputes....

...nd compel an appraisal regarding the amount of loss and scope of repairs. In response, the Grnjas argued, inter alia, that People’s Trust waived its right to invoke an appraisal by People’s Trust’s “failure to strictly comply with Fla. Stat. §627.7015.” Specifically, the Grnjas argued that People’s Trust waived its right to appraisal because (1) it provided notice of the right to participate in mediation pursuant to section 627.7015 prior to a dispute arising between the parties, and (2) it failed to send such notice after the Grnjas submitted the executed sworn proof of loss and their own estimate of damages. The lower court held a hearing on the motion, an...

...People’s Trust acknowledged that the Grnjas’ sworn proof of loss and 2 estimate put it on notice of a dispute over the scope of repairs but argued no precedent required an insurer to send a second mediation statement under section 627.7015....

...eviewed de novo.” Fla. Ins. Guar. Ass’n v. Waters, 157 So. 3d 437, 439-40 (Fla. 2d DCA 2015) (citing Fla. Ins. Guar. Ass’n v. Castilla, 18 So. 3d 703, 704 (Fla. 4th DCA 2009)). To the extent the issues raised in this appeal involve analysis of section 627.7015, Florida Statutes (2021), “[t]he interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.” Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006). As they did below, the Grnjas argue that People’s Trust waived its right to appraisal by failing to strictly comply with section 627.7015. The statute “sets forth a nonadversarial alternative dispute resolution procedure for a mediated claim resolution conference prompted by the need for effective, fair, and timely handling of property insurance claims.” § 627.7015(1), Fla....

...ution of insurance claims prior to commencing the appraisal process, or commencing litigation.” Fla. Ins. Guar. Ass’n v. Shadow Wood Condo. Ass’n, 26 So. 3d 610, 613 (Fla. 4th DCA 2009) (citation and internal quotation marks omitted); see also § 627.7015(1) (“There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner and commercial residential insurance policies obligate policyholders to participate in a potentially expensive and time-consuming adversarial appraisal process before litigation.”). Section 627.7015(2) provides that “[a]t the time of issuance and renewal of a policy or at the time a first-party claim within the scope of this section 3 is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program under this section.” § 627.7015(2), Fla. Stat. (2021). Section 627.7015(9) provides that, for purposes of the statute, “the term ‘claim’ refers to any dispute between an insurer and a policyholder relating to a material issue of fact” excepting five dispute types not applicable to this case. § 627.7015(9), Fla. Stat. (2021). The legislature amended section 627.7015(2) in 2019 to add the “[a]t the time of issuance and renewal of a policy” language. Ch. 19-108, § 15, Laws of Fla. Prior to amendment, an insurer could comply with the statute by providing the required notice only at the time of a dispute between the parties relating to a material issue of fact. See generally § 627.7015(2), (9), Fla. Stat. (2018). An insurer’s failure to comply with section 627.7015(2) results in a waiver of the right to compel appraisal. See § 627.7015(7), Fla....

...3d 932 (Fla. 4th DCA 2016), and the Third District’s opinion in People’s Trust Insurance Co. v. Lavadie, 306 So. 3d 285 (Fla. 3d DCA 2020). In Lime Bay, the insurer sent the mediation notice five months after the claim was filed. 187 So. 3d at 936. The policyholder argued that because section 627.7015(2) required such notice “[a]t the time a first-party claim within the scope of the section is filed,” the notice was untimely and therefore the insurer did not comply with the statute. Id. at 935-36. This Court disagreed, noting that sections 627.7015(2) and (9) “must be read together,” and concluded “that the requirement for giving notice of the right to participate in mediation regarding a claim does not ripen until the insurer is put on notice that there is a dispute that relates to a material issue of fact.” Id....

...3d DCA 2013) (quoting Universal Prop. & Cas. Ins. Co. v. Colosimo, 61 So. 3d 1241, 1245 (Fla. 3d DCA 2011)). While providing late notice contravenes this purpose, providing early notice does not. Furthermore, both Lime Bay and Lavadie analyzed section 627.7015 before the statute’s 2019 amendment....

...5 requirements “[a]t the time of issuance and renewal of a policy” not only at the time of a “claim,” i.e., at the time of a dispute between the parties relating to a material issue of fact, like the predecessor statute. See § 627.7015(2). Both Lime Bay and Lavadie addressed the pre-amendment version of section 627.7015. See Lime Bay, 187 So. 3d at 936 (citing § 627.7015, Fla. Stat. (2012)); Lavadie, 306 So. 3d at 288 (citing § 627.7015, Fla....

...Stat. (2016)). 1 Like the trial court, we conclude that People’s Trust did not waive its right to appraisal simply by providing the required statutory notice before a dispute arose between the parties. Under the Grnjas’ interpretation of section 627.7015, an insurer would comply with the statute if the insurer sent the mediation notice when a policy was issued or renewed—when no claim or dispute even existed— but an insurer would not comply with the statute if the insurer sent the statutory notice after a claim was filed but before a dispute arose....

...the required notice but nonetheless sought to compel appraisal. See Colosimo, 61 So. 3d at 1243 (“In the case before us, Universal did not send notice to the Insureds regarding the right to participate in the state mediation program as required by section 627.7015.”); QBE Ins....

...written demand for appraisal pursuant to the insurance policy. Frontline’s demand, however, was delivered to the Kennedys before Frontline provided its written statutory notice to the Kennedys of their right to mediate, as mandated by Section 627.7015, Florida Statutes (2018)....

...eir claim. The Kennedys filed suit on July 26, 2018, and Frontline immediately moved to compel appraisal. The trial court granted the motion, and the Kennedys filed this appeal following the denial of their motion for reconsideration Section 627.7015 sets forth an alternative mediation procedure for the resolution of disputed property insurance claims....

...fact.” The statute’s mandatory language places the burden of notification squarely on the insurer and provides that, absent proper notification of the right to mediate, an insured cannot be required to participate in the appraisal process. See, § 627.7015 (2) & (7); see also, Universal Prop....

...Notwithstanding this, Frontline chose to wait until June 2018 – after making its demand for appraisal – to notify the Kennedys of their statutory right to participate in mediation. Frontline’s actions are in derogation of the salutary purpose of section 627.7015, i.e., to expeditiously bring the parties together for a mediation without any of the trappings of an adversarial process. See Colosimo, 61 So. 3d at 1245. As we stated in Colosimo, section 627.7015 furthers the “particular need for an informal, nonthreatening forum for helping parties ....

...residential insurance policies obligate [the] insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation.” Id. at 1242. We hold that once a dispute has arisen, an insurer may not demand appraisal under the policy and pursuant to section 627.7015, prior to providing the insured with notice of the right to mediate....

..._____________________________ Appeal from the County Court for Hendry County. Darrell R. Hill, Judge. January 8, 2024 PER CURIAM. This case concerns Section 627.70152, Florida Statutes, which was enacted by the Florida Legislature in 2021.1 The Appellants, John Sulzer and Jeanette Roberts Sulzer (“the Insureds”), purchased a property insurance policy from Appellee, American Integrity Insurance Company of Florida (“the Insurance Company”), prior to the enactment of Section 627.70152....

...Both the policy’s coverage period and the Insureds’ alleged loss happened before the statute’s enactment. After the statute’s effective date, the Insureds filed a lawsuit against the Insurance Company for breach of their insurance policy without first filing a pre-suit notice under Section 627.70152....

...2d at 1284; Chase Fed., 737 So. 2d at 499; Menendez, 35 So. 3d at 877. In Florida Insurance Guaranty Ass’n Inc. v. Devon Neighborhood Ass’n Inc., 67 So. 3d 187 (Fla. 2011), the Florida Supreme Court addressed the potential retroactive effect of a modification to section 627.7015, Fla....

...The amendments further imposed a new penalty on both commercial residential insurers as well as homeowners’ residential insurers—the loss of the right to the contractual appraisal if the insurer fails to give notice of the mediation alternative. Thus, section 627.7015 as amended in 2005 cannot be characterized as simply procedural or remedial, but was clearly substantive. Therefore, the presumption against retroactive application of the substantive amendments to section 627.7015 applies in this case. Id....

...Universal Property & Casualty Insurance Co., 6D23-296, 2023 WL 8108671 (Fla. 6th DCA Nov. 22, 2023), engages, at least implicitly if not expressly, in a threshold inquiry as required by Devon prior to engaging in the two-prong test. Under the portion of the Hughes opinion with the heading “Section 627.70152, Florida Statutes (2021),” the majority performs a detailed analysis of the statute and its potential substantive effect. Id. The majority concludes, “In sum, section 627.70152 significantly alters an insurer's obligation to pay and an insured’s right to sue under a property insurance policy.” 2023 WL 8108671 at *4....

... The Hughes majority then continues with the two-prong inquiry, starting with prong one, the search for a clearly expressed legislative intent for retroactive application. I concur entirely with section II(a) of Hughes, that being the court’s analysis and conclusion that section 627.70152 lacks such a clear expression. I divert from the majority in Hughes when, after concluding there is no clear legislative intent for retroactivity, the court continues with an analysis of the second prong....

...reached this conclusion under prong one of the two-prong test, we need not address whether retroactive application of the amendments would be constitutional. See Old Port Cove, 986 So. 2d at 1284.” Devon, 67 So. 3d at 197. Whether a statute such as section 627.70152 could be applied retroactively without violating any constitutional principles is a question to be left for another day. _____________________________ MIZE, J., concurring. I fully agree with this Court’s recent opinion in Hughes v. Universal Property & Casualty Ins. Co., No. 6D23-296, 2023 WL 8108671 (Fla. 6th DCA Nov. 22, 2023). I write to address an additional aspect by which the pre-suit notice process set forth Section 627.70152(3), Florida Statutes (2021), presents a substantive change to an insured’s legal rights under a property insurance policy, at least under 6 Third District precedent that was binding statewide until the enactment of Section 627.70152. Prior to the enactment of Section 627.70152, recovery of attorneys’ fees in claims brought under insurance policies, including property insurance policies, was governed by Section 627.428, Florida Statutes (2019)....

...any action in which a judgment was rendered in favor of the insured, without regard to the amount of recovery. 2 Applying Section 627.428, the Third District held that a claimant could recover attorneys’ fees 2 The bill enacting Section 627.70152 also amended Section 627.428 such that claimants in suits arising under property insurance policies not brought by assignees are no longer entitled to recover reasonable attorneys’ fees incurred in any action in which a judgment is rendered in favor of the insured, without regard to the amount of recovery. Instead, the amounts of attorneys’ fees awards in such lawsuits are governed by Section 627.70152(8), which provides a specific method for determining the amount of an award of attorneys’ fees based on the amount of recovery. As noted in Hughes, the change to the method of calculating awards of attorneys’ fees may be severable from the pre-suit notice requirement of Section 627.70152(3) for purposes of determining retroactivity....

...2023 WL 8108671 at *3 n.4. However, the subject of this concurrence, which is the complete elimination of a claim for pre-litigation attorneys’ fees under U.S. Fidelity & Guaranty Co. v. Rosado, 606 So. 2d 628, 629 (Fla. 3d DCA 1992), is directly caused by the pre-suit notice process created by Section 627.70152 and cannot be severed therefrom. On December 16, 2022, the Governor signed into law a bill further amending Section 627.428 and removing completely subsection (8) of Section 627.70152....

...These amendments eliminated completely an insured’s statutory right to recover attorneys’ fees in an action brought under a residential or commercial property insurance policy. This concurrence addresses the law as it stood at the time that Appellants filed their lawsuit below, which was after the enactment of Section 627.70152 but prior to the removal of subsection (8). 7 incurred prior to litigation only if the attorneys’ fees resulted from an insurer’s unreasonable conduct....

...Therefore, the Third District’s holding on this matter was binding on all trial courts in the state. 4 See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”). Thus, prior to the enactment of Section 627.70152, where a claimant’s insurer acted unreasonably prior to litigation, the claimant possessed a claim against the insurer for attorneys’ fees incurred both prior to litigation and during the litigation. As to attorneys’ fees incurred during litigation, the pre-suit notice requirement of Section 627.70152 merely delays a claimant’s ability to seek attorneys’ fees and, if the claim is resolved during the pre-suit notice process, the attorneys’ fees incurred during litigation will never be incurred because there will be no litigation....

...However, as to an insured’s claim for pre-litigation attorneys’ fees incurred pursuant to Rosado 3 While Rosado concerned PIP insurance rather than property insurance, Section 627.428 governed awards of attorneys’ fees for all claims brought under insurance contacts prior to the enactment of Section 627.70152, so Rosado was equally applicable to cases involving property insurance policies. 4 I express no opinion as to whether Rosado was correctly decided....

...pre-suit notice process despite the fact that the attorneys’ fees may have already been incurred. Consider an insured that makes a claim on the insured’s property insurance policy. If the insurer acts unreasonably, prior to the enactment of Section 627.70152, an insured that hired an attorney to handle the claim accrued a claim for pre-litigation attorneys’ fees which the insured could recover once the insured brought suit against the insurer for breach of the insurance policy. After the enactment of Section 627.70152, that insured will now have to file a pre-suit notice prior to filing suit against the insurer that acted unreasonably and thereby caused the insured to accrue pre-litigation attorneys’ fees....

The court concluded that the amendments to “section 627.7015 as amended in 2005 cannot be characterized

...s the Court to stay these proceedings pending the resolution of the appraisal process. In response, Plaintiffs take the position that Defendant has waived its right to enforce the appraisal process against them by failing to abide by Florida Statute § 627.7015(2)....

...ribed by Florida Law. See DE 4 & 5. These Affidavits are unrefuted by Defendant. Therefore, it stands as established that Defendant failed to abide by Florida Law on this issue, and it has waived its ability to invoke the appraisal process. Fla. St. § 627.7015(2)....

...Defendant previously moved to dismiss the suit or in the alternative to have the case stayed while a formal appraisal took place. See DE 2. In response, Plaintiffs argued that Defendant had waived its right to enforce the appraisal process against them by failing to abide by Florida Statutes § 627.7015(2)....

...If this information is not turned over, the "insured shall not be required 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." Fla. Stat. § 627.7015(7)....

...to seek an appraisal. Based on Plaintiffs' argument, the statute, and the un-refuted Affidavits, the Court found that "Defendant failed to abide by Florida Law on this issue, and it has waived its ability to invoke the appraisal process. Fla. Stat. § 627.7015(2)." DE 11, p....

...provide the Court with a verified copy of the policy at issue. Id. Defendant now moves the Court to reconsider its prior Order on the basis that Plaintiffs' policy is a commercial policy and therefore it is excluded from the provisions of Fla. Stat. § 627.7015(2)....

...(quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294 (M.D.Fla.1993)); see also Socialist Workers Party v. Leahy, 957 F.Supp. 1262, 1263 (S.D.Fla.1997). Defendant argues that in clear error the Court misapplied the waiver provision of Fla. Stat. § 627.7015(7) and that manifest injustice would result by letting it stand. The Court disagrees. Defendant may be correct that commercial policies are excluded from the waiver provision of Fla. Stat. § 627.7015(1), but that issue was not raised in response to Plaintiffs' Response....

...e. Imprecise arguments of this sort put the Court in an awkward position: without clear briefing of the issues, the Court may rend in an inaccurate decision. Defendant has the burden to establish that the policy at issue is excluded under Fla. Stat. § 627.7015(1)....