Florida/Georgia Personal Injury & Workers Compensation

notice requirement in section 627.70152(3), Florida Statutes (2021). See § 627.70152(3)(a) ("As a condition

with the presuit notice requirements of section 627.70152 of the Florida Statutes. For the following

her complaint for failing to comply with section 627.70152(3), Florida Statutes. Based on our recent

...When the Smiths sustained damage to their property in November 2000, they filed a claim with Universal. After Universal denied payment of the claim, the Smiths filed a lawsuit in April 2022. In July 2021, approximately nine months before the Smiths’ lawsuit was filed, section 627.70152, Florida Statutes (2021), was enacted, requiring insureds to send a pre-suit notice of their intent to initiate litigation against an insurer. Relying upon the then recent opinion in Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023), which held that section 627.70152 applies retroactively, Universal moved for summary judgment below. The Smiths conceded that they did not serve a pre-suit notice upon Universal, but argued that the statutory requirement could not be applied retroactively to their claim. The trial court, relying on Cole, disagreed, found that section 627.70152 should be applied retroactively, and because the Smiths did not comply with the statute, the court granted Universal’s motion for summary judgment....

...3d 187, 196 (Fla. 2011) (“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.”)). Hughes further noted that “the Legislature wrote section 627.70152 and included 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.’” Id....

...3d 873, 876 (Fla. 2010)). Following the Sixth District’s holding in Hughes, the Third District Court of Appeal held in Cantens v. Certain Underwriters 2 at Lloyd’s London, 388 So. 3d 242 (Fla. 3d DCA 2024), that section 627.70152 is procedural in nature and applies to all insurance policies, regardless of the date of inception....

...complaint and certified conflict with Hughes. Finally, the Second District Court of Appeal, in Buis v. Universal Property & Casualty Insurance Co., 49 Fla. L. Weekly D1850 (Fla. 2d DCA Sept. 6, 2024), reversed the dismissal of an insured’s complaint under section 627.70152, concluding that the statute should not be applied retroactively. We adopt the rationale and reasoning of our sister courts from the Second and Sixth Districts and, for the reasons relied upon in these opinions, hold that it was error to apply section 627.70152 retroactively to the Smiths’ policy in this case....

...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....

...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....

...Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellee. LEVINE, J. Appellant filed suit against his homeowner’s insurance company, appellee, for breach of contract. The month before appellant filed suit, the legislature enacted section 627.70152, Florida Statutes (2021), which included a required presuit notice of intent to litigate as a condition precedent to filing suit....

...In November 2020, appellant sustained damage to his property and submitted a claim to appellee under his existing insurance policy. In August 2021, appellant filed suit against appellee for breach of contract. After appellant submitted his claim, but before appellant filed suit, the legislature enacted section 627.70152, Florida Statutes, with an effective date of July 1, 2021....

...a substantive change that could not be applied retroactively to policies issued before the amendment’s effective date. The trial court granted the motion to dismiss without prejudice due to appellant’s failure to comply with the presuit requirements of section 627.70152. The trial court found that Menendez was “distinguishable and section 627.70152 is clear on its face.” The trial court dismissed the complaint and directed the clerk to close the file....

...1999)). Appellant argues that the statute would not apply since it would be a retroactive application to a previously issued insurance policy already in existence. Based upon application of the two-part test annunciated in Menendez, we disagree. The legislature enacted section 627.70152 with an effective date of July 1, 2021. Ch. 2021-77, § 12, Laws of Florida. The statute begins by stating: “This section applies exclusively to all suits . . . arising under a residential or commercial property insurance policy . . . .” § 627.70152(1), Fla....

...form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. . . . § 627.70152(3)(a), Fla....

...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. Id. An insurer has 10 business days to respond to the notice. § 627.70152(4), Fla. Stat. (2021). If the insurer is responding to a notice served following a denial of coverage, the insurer must accept coverage, continue to deny coverage, or assert the right to reinspect the damaged property. § 627.70152(4)(a), Fla....

...If the insurer is responding to a notice “alleging an act or omission by the insurer other than a denial of coverage, the insurer must respond by making a settlement offer or requiring the claimant to participate in appraisal or another method of alternative dispute resolution.” § 627.70152(4)(b), Fla. Stat....

...comply with the notice provisions results in dismissal without prejudice: “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 . . . .” § 627.70152(5), Fla. Stat. (2021). Additionally, the statute provides a formula for the calculation of attorney’s fees based on the amount obtained by the claimant and the presuit settlement offer. § 627.70152(8), Fla....

...award to the claimant any incurred attorney fees for services rendered before the dismissal of the suit.” Id. We find that the trial court did not err in dismissing appellant’s complaint for failure to comply with the presuit notice requirements of section 627.70152(3). In section 627.70152, the legislature expressed a clear intent for the statute to apply retroactively. The statute, which went into effect on July 1, 2021, stated that this statute “applies exclusively to all suits . . . arising under a residential or commercial property insurance policy . . . .” § 627.70152(1), Fla....

...Thus, the statute applies to all suits. The statute goes further and 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....

...In this case, the trial court correctly found that this presuit notice requirement was retroactive and procedural in nature and that it did not affect any substantive rights. Appellant’s rights and obligations are unchanged by the addition of the presuit notice provision in section 627.70152....

...h a party enforces substantive rights or obtains redress for their invasion.” Kirian, 579 So. 2d at 732 (citation omitted); see also Art Deco 1924 Inc. v. Scottsdale Ins. Co., No. 21-62212-CIV, 2022 WL 706708 (S.D. Fla. Mar. 9, 2022) (finding that section 627.70152 was procedural and therefore applied retroactively). Appellant complains about a litany of notification requirements, all of which merely add up to provisions related to process and procedure. Appellant complains about the presuit notification provisions in section 627.70152(3), Florida Statutes (2021). Additionally, appellant complains that the insurer must respond within 10 business days. § 627.7152(4), Fla. Stat. (2021). If requested, the insurer is afforded 14 business days to reinspect the property. § 627.70152(4)(a), Fla. Stat. (2021). If the insurer requests appraisal or alternate dispute resolution, the insurer is afforded an additional 90 days. § 627.70152(4)(b), Fla. Stat. (2021). None of these 5 procedural provisions limits the potential recovery or remedy in any way. Appellant also points to the subsection that modifies the attorney’s fees statutory provision, section 627.70152(8), Florida Statutes (2021). 1 Before the enactment of this statute, section 627.428(1), Florida Statutes (2020), provided for an award of reasonable attorney’s fees following a judgment against the insurer and in favor of the insured. Appellant argues that because 627.70152(8) changed the manner attorney’s fees are awarded, the statute in its entirety impairs substantive rights. Although “the statutory right to attorneys’ fees is not a procedural right, 1 Section 627.7052(8), Florida Statutes (2...

...“problematic” substantive changes—those which “(1) impose a penalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action.” Id. In contrast, section 627.70152(3) does not contain any of the same problematic characteristics, but requires only a perfunctory presuit notice requirement....

...t, and to require motor vehicle insurance securing such benefits.” Id. at 876- 87 (quoting § 627.731, Fla. Stat. (2006)). The same considerations are not implicated in the instant statute. In summary, because the presuit notice requirement of section 627.70152 applies retroactively as a procedural provision, it applies to existing policies in effect at the time of enactment....

...Brown and Ms. Moreno's argument that the trial court erred by failing to equitably toll the statute of limitations. And in accordance with the reasoning in this court's recent decision in Buis v. Universal Property & Casualty Insurance Co., 394 So. 3d 738 (Fla. 2d DCA 2024), we also reject their argument that section 627.70152(3), Florida Statutes (2022), retroactively applied to their 2017 insurance policy and tolled the statute of limitations....

...riae. Before SCALES, LINDSEY, and GORDO, JJ. PER CURIAM. Affirmed. See Cantens v. Certain Underwriters at Lloyd’s London, 49 Fla. L. Weekly D360, D362 (Fla. 3d DCA February 14, 2024) (“[B]ecause the presuit notice requirement of section 627.70152(3), taken in context, is procedural in nature, and applies to all policies, regardless of date of inception, the trial court correctly dismissed the action without prejudice pursuant to section 627.70152(5).”); Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089, 1095 (Fla. 4th DCA 2023) (“[B]ecause the presuit notice requirement of section 627.70152 applies retroactively as a procedural provision, it applies to existing policies in effect at the time of enactment.”). But see Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023) (“[W]e find that section 627.70152 is substantive and cannot be applied retroactively to insurance policies issued before the statute’s effective date.”). 2  Alma Sanchez, et al., v....

...concur in the result reached in this case, but I write to express my disagreement with Cantens, which followed the Fourth District’s decision in Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023). I. Section 627.70152 The issue in this case, as it was in Cantens and Cole, is whether the Legislature’s new statutory condition precedent to an insured’s right to sue the property insurer for an alleged breach of the insurance contract may...

...prior panel. See Nat’l Med. Imaging, LLC v. Lyon Fin. Servs., 347 So. 3d 63, 64 (Fla. 3d DCA 2020). 3 prohibition on impairment with contracts.2 In 2021, the Legislature enacted the new condition precedent, section 627.70152 of the Florida Statutes, which, among other things, requires that, at least ten days prior to filing suit against the insurer, an insured must provide notice to the Florida Department of Financial Services of the insured’s intent to initiate litigation against the insurer. The insured’s notice must state, with specificity, all of the following information: 1. That the notice is provided pursuant to section 627.70152. 2....

...A legislative enactment cannot be applied retroactively “if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.” See Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010); Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023) (holding that section 627.70152 does not apply retroactively “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”). 4  3....

...If the notice is provided following acts or omissions by 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. § 627.70152(3)(a), Fla....

...(2021). Under the new legislation, a trial court is required to dismiss any first- party lawsuit filed by an insured who has not complied with the notice requirement, which means that a plaintiff’s noncompliance cannot be cured by compliance, followed by amending the plaintiff’s lawsuit. § 627.70152(5), Fla. Stat. (2021).3 II. Retroactive Application of Section 627.70152 3 Indeed, it is because of section 627.70152(5)’s dismissal penalty that we have appellate jurisdiction to review the subject order....

...expensive pre-suit burden on an insured trying to enforce contractual rights. The new statute also imposes a new penalty – dismissal of the insured’s lawsuit – for noncompliance with the statute’s notice requirement. As mentioned earlier, section 627.70152(5)’s mandatory dismissal penalty requires the trial court to dismiss the lawsuit without prejudice; the statute does not allow a trial court the discretion to dismiss a complaint, with leave 7 to amend following compliance with the new statute. Hence, in order to sue his insurer, a policyholder whose lawsuit has been dismissed under section 627.70152(5), must comply with the statute’s notice requirements and then re-file his lawsuit (paying the associated filing fees) and again serve process on the insurer (paying those associated costs)....

...a. L. Weekly at D362. But Cantens’s conclusory holding in this regard provides little solace to a low- income policyholder forced to again incur filing and service of process fees, or worse, to a policyholder whose lawsuit has suffered section 627.70152(5)’s mandatory suit dismissal after the expiration of the statute of limitations, and therefore, cannot re-file....

...It would seem that the remedies available to such a policyholder are nonexistent. III. Conclusion 8  It bears noting that virtually every pre-Cole federal case4 and, most recently, our sister court’s Hughes case,5 hold that section 627.70152’s new notice requirement cannot, consistent with Florida’s prohibition on contract impairment, be applied to existing insurance contracts. While the statute’s new requirements may very well be good public policy, I agree with the reasoning uniformly expressed in those pre-Cole opinions and by the Hughes Court: section 627.70152’s notice requirements impose new substantive burdens on policyholders, and therefore, cannot be constitutionally applied to existing insurance policies. 4 See e.g., Oceana III Condo. Ass’n v. Westchester Surplus Lines Ins. Co., 658 F. Supp. 3d 1177,1183 (S.D. Fla. 2023) (holding that section 627.70152 cannot be applied retroactively because it “substantively alters an insurer’s obligation to pay and an insured’s right to sue under contract”) (quoting Rosario v....

...ithout a hearing. 1 The motion had also requested, in the alternative, a more definite statement. See Fla. R. Civ. P. 1.140(e). 2 Frontline also argued in its motion that dismissal was proper because Zabriskie’s pre-suit notice under section 627.70152, Florida Statutes (2021), of his intent to initiate litigation against Frontline was defective....

..._____________________________ 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....

...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....

...6  As to irreparable harm, we find that a claimant’s failure to comply with the presuit notice of claim requirement of section 558.004 is analogous to that of an insured’s failure to comply with the notice requirements set forth in section 627.70152, Florida Statutes, and a litigant’s failure to meet the mandatory presuit procedures in chapter 766, Florida Statutes. See, e.g., Citizens Prop. Ins. Corp. v. Walden, 395 So. 3d 216, 217–18 (Fla. 3d DCA 2024) (analogizing insured’s failure to comply with presuit notice requirements of section 627.70152 to litigant’s failure to comply with chapter 766’s presuit notice procedures in medical malpractice cases and holding that order denying insurer’s motion to dismiss for insured’s failure to comply with section 627.70152 met jurisdictional requirements for certiorari relief). Just as an insured’s failure to provide presuit notice under section 627.70152 constitutes irreparable harm for certiorari purposes, see id., here, Peterson’s failure to comply with section 558.004 cannot be remedied on postjudgment appeal because the purpose of a claimant’s giving notice of an alleged...

...and Ana Marie Cantens, appeal the dismissal without prejudice of their complaint against their insurer due to failure to plead that they provided a written presuit notice of intent to initiate litigation to the Division of Financial Services, as required by section 627.70152(3), Florida Statutes....

...on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. § 627.70152(3)(a), Fla....

...3 Id. (1). These provisions became effective on July 1, 2021. See Ch. 2021- 17, § 15, Laws of Fla. The policy at issue became effective on March 13, 2019. The insureds here do not dispute failing to provide notice as required by section 627.70152(3)....

...e statutory enactment. The Fourth District has recently addressed this same issue in Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023), which affirmed a dismissal for failure to provide presuit notice under section 627.70152(3) as to an action founded on a policy that became effective prior to enactment of the statute....

...t of the insured, so the statute could properly be applied retroactively. Id. at 1093–95; see also Art Deco 1924 Inc. v. Scottsdale Ins. Co., 29 Fla. L. Weekly Fed. D 97, at *2 (S.D. Fla. Mar. 9, 2022) (evaluating same statute and agreeing that section 627.70152(3) “is a procedural law that ‘concerns the means and methods to apply and enforce ....

...certifying conflict with Cole); Sulzer v. Am. Integrity Ins. Co. of Fla., No. 6D23-391, 2024 WL 79882 (Fla. 6th DCA Jan. 8, 2024) (same); Williams v. Foremost Prop. & Cas. Ins. Co., 619 F. Supp. 3d 1161, 1166 (M.D. Fla. 2022) (disagreeing with Art Deco and concluding that because section 627.70152 penalizes insureds who do not comply with presuit notice and provides insurers additional time to accept coverage, the statute was substantive in nature and could not be applied retroactively); Dozois v....

...Thus, the statute allows the insurer additional time to pay the claim and affects the insured's right to sue and recover attorneys’ fees.”). We agree with Cole that Menendez is distinguishable from the statute at hand. Preliminarily, we agree that because subsection 627.70152(1), applies the statute to “all suits arising under a residential or commercial property insurance policy,” and because subsection 627.70152(3) serves as 6 “a condition precedent to filing a suit under a property insurance policy,” the statute contains a clear legislative intent to apply retroactively to all claims, regardless of when the policy was incepted. Cole, 363 So. 3d at 1093 (emphasis added). Moreover, we agree that the presuit notice requirement of section 627.70152(3) is procedural, not substantive, in nature....

...ss for their invasion.” Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (quoting In re Fla. Rules of Crim. Proc., 272 So. 2d 65, 66 (Fla. 1972) (Adkins, J., concurring)). Here, unlike the statute at issue in Menendez, section 627.70152(3)’s notice requirement does not give an insurer additional time to make a coverage decision, as it applies only after a coverage determination has already been made. Compare § 627.70152(3)(a), Fla....

...627.70131.”), with § 627.736(10)(a), Fla. Stat. (“Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim 7 pursuant to paragraph (4)(b).”). Section 627.70152(3) also does not impose any new punishments or penalties that substantively impact an insured’s ability to recover, as the action may be refiled even if dismissed without prejudice under section 627.70152(5) for failure to provide presuit notice. Moreover, section 627.70152(3) itself does not implicate an insured’s ability to recover attorneys’ fees, except insofar as it imposes a procedural notice requirement prior to bringing an action. 1 1 At the time of this action, section 627.70152 contained the now-repealed subsection 627.70152(8), which limited an insured’s ability to recover attorneys’ fees and costs if their action is dismissed under subsection (5). See § 627.70152(8)(b), Fla....

...As Menendez noted, “the statutory right to attorneys’ fees is not a procedural right, but rather a substantive right.” 35 So. 3d at 878. However, as in Cole, we conclude that this attorney fee provision is not before us on this appeal, nor is it implicated by the presuit notice requirements of section 627.70152(3), but even if it were, it is severable from the procedural aspects of the statute and does not impact our conclusion that subsection 627.70152(3) is procedural in nature....

...Ultimately, should the Florida Supreme Court accept jurisdiction, it will be able to determine whether Menendez should apply, and if so, which is the correct application. 9 repealed attorney’s fees provision formerly contained within 627.70152, are not before us. See supra note 1. Accordingly, because the presuit notice requirement of section 627.70152(3), taken in context, is procedural in nature, and applies to all policies, regardless of date of inception, the trial court correctly dismissed the action without prejudice pursuant to section 627.70152(5)....

...the 2021 version of section 627.428, Florida Statutes—the version of the statute in effect at the time her policy issued. The 2021 version of the statute provided that insureds who recover against their insurer are entitled to attorney’s fees pursuant to section 627.70152, Florida Statutes (2021). See § 627.428, Fla. Stat. (2021). Section 627.70152, in turn, contained a formulaic approach to calculate an award of attorney’s fees. See § 627.70152(8), Fla. Stat. (2021). During the time between Blumberg’s covered loss and the initiation of her action against Security First, the Florida Legislature enacted multiple amendments to and repeals of sections 627.428 and 627.70152, ultimately eliminating an insured’s right to attorney’s fees in litigation over the denial of benefits under a property insurance policy. See § 627.428(4), Fla. Stat. (2022) (adding a statement that fees were unavailable in suits arising under residential or commercial property insurance policies); § 627.428, Fla. Stat. (2023) (repealing the section completely); § 627.70152, Fla....

...The Florida Supreme Court ultimately decided that the pre-suit notice provisions could not be applied retroactively, in part because they implicated the substantive right to attorney’s fees by delaying the ability to recover them. Id. at 878–80. Application of Menendez to section 627.70152’s property insurance pre-suit notice provisions resulted in an inter-district split....

...Universal Prop. & Cas. Ins., 363 So. 3d 1089, 1093–95 (Fla. 4th DCA 2023), with Hughes v. Universal Prop. & Cas. Ins., 374 So. 3d 900, 905–10 (Fla. 6th DCA 2023). In deciding that pre-suit notice was required even though the relevant policy issued before section 627.70152 took effect, the Fourth District Court of Appeal determined that the Legislature intended that the statute apply retroactively, and it distinguished the rights at issue under the property insurance scheme with those at issue under the personal injury protection scheme in Menendez. Cole, 363 So. 3d at 1093–95. The Sixth District Court of Appeal reached a conflicting decision on similar facts when it decided that the amended section 627.70152 did not demonstrate retroactive intent under the first Menendez prong and was a substantive statute under the second prong....

...That law amended section 627.428 by adding subsection (4), which provided that “[i]n a suit arising under a residential or commercial property insurance policy, there is no right to attorney fees under this section.” Ch. 2022-271, § 13, Laws of Fla. That enactment also amended section 627.70152 by eliminating subsection (8), which described the formula for awarding attorney’s fees, and two other references to attorney’s fees in that subsection....

...to be evidence rebutting intent for retroactive application of a law[,]” see Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 196 (Fla. 2011), the exclusion of a specific date is mere silence. The repeal of section 627.428 and the deletion of subsection 627.70152(8) are also silence, as there was no text to consider....

...insurance contract, this act applies to an insurance contract issued or renewed after the effective date of this act.” Id. The text of the statutes also provides little evidence regarding retroactivity other than a statement in the pre-suit notice provisions of section 627.70152(1). That subsection notes that the statute applies to all suits arising under property insurance policies. § 627.70152(1), Fla. Stat. Smith held that section 627.70152(1)’s “application to ‘all suits’” did not “indicat[e] clear legislative intent for retroactive application.” Smith, 396 So....