CopyCited 103 times | Published | Supreme Court of Florida | 2005 WL 1580606
...surance by October 1, 1995. FIGA further argued that pursuant to the statute of limitations contained in the FIGA Act, Jones was required to file any action against FIGA within one year of filing a claim with the receiver, or by October 1, 1996. See § 631.68, Fla....
...as a named defendant, which was a necessary precursor to initiating any action against Dealers (or FIGA) under Florida's nonjoinder of insurers statute and satisfying the limitation period now asserted by FIGA. See §
627.4136(1), Fla. Stat. (1995); §
631.68, Fla....
...line for filing claims. The statutes cannot be held to apply to a cause of action which had not yet accrued, and such argument is contrary to the terms of the statute, which requires the action to be filed against the insured or the association. See § 631.68, Fla....
CopyCited 5 times | Published | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 73, 1991 Fla. LEXIS 101, 1991 WL 6555
...Scott Kirk of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Weschler, Orlando, for respondent. McDONALD, Justice. We review Blizzard v. W.H. Roof Co.,
556 So.2d 1237 (Fla. 5th DCA 1990), because the district court ruled on the constitutionality of sections
95.11(5)(d) and
631.68, Florida Statutes (1987), insofar as the one-year limitation contained therein operates to shorten the four-year statute of limitations for a negligence action against an insured whose insurer has become insolvent....
...[1] It also safeguarded those who had sought to protect themselves by purchasing insurance policies. To effectuate its intentions, the legislature found it necessary to limit the time for filing claims. In 1983 the legislature added the phrase "and the insured" to section
631.68, thereby extending the one-year time limit to actions against insureds and added subsection
95.11(5)(d) to the statutes....
...er review. Because we find the district court's analysis correct and adequately comprehensive, we feel it unnecessary to restate and discuss it here. Instead, we adopt the opinion under review as our own. [2] *335 We declare sections
95.11(5)(d) and
631.68, Florida Statutes (1987), constitutional and approve the decision under review, which affirmed the summary judgment entered for W.H....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1990 WL 15388
...Lee Dorough of Whitaker, Dorough & Whitaker, Orlando, for appellants. Arturo Borbolla and Sharon L. Stedman of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, A Professional Ass'n, Orlando, for appellee. COBB, Judge. The issue on appeal is the constitutionality of sections
95.11(5)(d) and
631.68, Florida Statutes (1987), insofar as the one-year limitation contained therein operates to shorten the four-year statute of limitations for a negligence action against an insured whose insurer has become insolvent. *1238 Section
95.11(5)(d) provides for a one-year limitation period for an action against any guaranty association and its insured, with the period running from the date of the deadline for filing claims in the order of liquidation. Section
631.68 provides that a claim covered by Florida Insurance Guaranty Association (FIGA), in regard to which no suit is instituted within one year after the deadline for filing claims with the receiver of an insolvent insurer, is barred as a claim against the association and the insured....
...Jacksonville Electric Authority,
399 So.2d 396, 398 (Fla. 1st DCA), review denied,
411 So.2d 383 (Fla. 1981). See also Fernandez v. Florida Insurance Guaranty Association, Inc.,
383 So.2d 974, 976 (Fla. 3d DCA), review denied,
389 So.2d 1109 (Fla. 1980). In the instant case, sections
95.11(5)(d) and
631.68 represent a reasonable restriction on Blizzard's rights pursuant to article I, section 21, of the Florida Constitution....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2017 WL 543427, 2017 Fla. App. LEXIS 1648
...1 §§
631.50-.70, Fla. Stat. (2011).
their insurers have become insolvent. §
631.51(1), Fla. Stat. (2011). The FIGA Act is
administered by the Florida Insurance Guaranty Association, Inc. (“FIGA”), and contains
a statute of limitations found in section
631.68, Florida Statutes (2011)....
...Thereafter,
FIGA notified Morrison it had been reassigned her claim due to the insolvency of
Homewise.
When Morrison subsequently filed the motions to amend her complaint and for
substitution of parties to name FIGA as a defendant in her pending lawsuit, the time
limitation provided in sections
95.11(5)(d) and
631.68 had expired....
...If FIGA does encounter difficulties emanating from our
construction of the FIGA Act, and we do not believe it will, FIGA’s recourse is amendment
through the legislative process rather than judicial rewriting of the pertinent statutory
provisions. See id.
We conclude that section
631.68 and section
95.11(5)(d) do not apply to first-party
actions filed against the insurer prior to its insolvency....
...he instant case, the Third District Court
came to the same conclusion. In affirming the trial court’s order granting the insured’s
motion to substitute FIGA as a defendant in the pending first-party action, the court
explained:
Section
631.68 must be read in harmony with section
631.67,
and all other related provisions of chapter 631, in order that
the objectives of each of the chapter’s provisions not be
sacrificed....
...We must construe related statutes in harmony with
each other. Vill. of Doral Place Ass’n v. RU4 Real, Inc.,
22
So. 3d 627, 631 (Fla. 3d DCA 2009). Against this backdrop,
we conclude that the limitations period in section
631.68 is
inapplicable to first-party lawsuits pending against the insurer
when the insurer is declared insolvent.
193 So....
...If FIGA does encounter difficulties emanating from our
construction of the FIGA Act, and we do not believe it will, FIGA’s recourse is amendment
through the legislative process rather than judicial rewriting of the pertinent statutory
provisions. See id.
We conclude that section
631.68 and section
95.11(5)(d) do not apply to first-party
actions filed against the insurer prior to its insolvency....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2016 WL 1445424, 2016 Fla. App. LEXIS 5583
...appeal determined that the trial court could exercise personal jurisdiction over
FIGA. Therefore, the order is appealable as a non-final order pursuant to rule
9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure.
5 FIGA asserts that the applicable statute of limitations is section 631.68, which
reads, in its entirety, as follows:
Limitation; certain actions....
...The trial court correctly concluded that, pursuant to the
statutory scheme governing insolvent insurers, and the role of FIGA in that
scheme, it was not necessary for Mendoza to obtain separate service of process on
FIGA within the limitations period described in section 631.68.
A....
...Pursuant to, and subject to the
limitations of, section
631.57, FIGA is obligated to pay “covered claims.”6
year after the deadline for filing claims, or any extension thereof, with
the receiver of the insolvent insurer shall thenceforth be barred as a
claim against the association and the insured.
§
631.68, Fla....
...olvent.
C. FIGA’s Suggested Statutory Construction is Inconsistent with Express
Statutory Scheme
FIGA’s assertions that Mendoza was required to serve FIGA with separate
process and that Mendoza’s claim is somehow time-barred by section
631.68 are
undermined by the relevant provisions within chapter 631 that expressly govern
pending lawsuits against insurers later declared insolvent.
Section
631.68 bars suits that have not yet been filed (in other words, non-
pending lawsuits) from being filed more than one year beyond the deadline for
filing claims with the receiver for the insolvent insurer. FIGA’s interpretation of
section
631.68 would impair those specific statutes that address pending cases.
For example, section
631.67 authorizes FIGA to request waiver,
enlargement or shortening of the six-month automatic stay; and section
631.67 also
7 Obviously, th...
...Nothing in section
631.67 suggests any
requirement that FIGA need be separately added and served as a prerequisite to
FIGA defending such pending claims.
10
Also, FIGA’s proposed interpretation of section
631.68 would treat first-
party claimants fundamentally differently from third-party claimants....
...in effect service of
process on the lawsuit’s defendant. Nothing in the statutory scheme of chapter 631
requires Mendoza to leap such additional hurdles in order to ensure that FIGA
performs its statutorily required duties in this case.
Section
631.68 must be read in harmony with section
631.67, and all other
related provisions of chapter 631, in order that the objectives of each of the
chapter’s provisions not be sacrificed. We must construe related statutes in
harmony with each other. Vill. of Doral Place Ass’n v. RU4 Real, Inc.,
22 So. 3d
627, 631 (Fla. 3d DCA 2009). Against this backdrop, we conclude that the
limitations period in section
631.68 is inapplicable to first-party lawsuits pending
against the insurer when the insurer is declared insolvent.
IV....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 15858, 2014 WL 5092909
...The
trial court determined that the applicable statutes of limitation barred the Homeowners'
action against FIGA for breach of contract and declaratory judgment regarding a
sinkhole loss. Because the action is time barred under sections
95.11(5)(d) and
631.68,
Florida Statutes (2009), we affirm the final summary judgment.
The Homeowners sustained a sinkhole loss on December 15, 2009....
...assert that the parties had agreed to any extension of time.
The trial court properly determined on FIGA's motion for summary
judgment that the Homeowners' lawsuit was barred by the one-year statutes of limitation
set forth in sections
95.11(5)(d) and
631.68. Section
95.11(5)(d) requires the
commencement of suit within one year for "[a]n action against any guaranty association
and its insured, with the period running from the date of the deadline for filing claims in
the order of liquidation." Section
631.68 provides as follows:
A covered claim as defined herein with respect to which
settlement is not effected and suit is not instituted against
the insured of an insolvent insurer or the associatio...
...2d 684, 685 (Fla.
2d DCA 1993); Webb v. Chambly,
584 So. 2d 216, 216-17 (Fla. 4th DCA 1991);
Montano v. Fla. Ins. Guar. Ass'n,
535 So. 2d 658, 659 (Fla. 3d DCA 1988); see also Fla.
Ins. Guar. Ass'n v. Jones,
802 So. 2d 483, 483 (Fla. 3d DCA 2001) (citing section
631.68 and stating that a declaratory action was "barred under the one-year limitations
period for actions against either the insured or the guaranty association").
In opposition to summary judgment, there was nothing to cont...
...exists after all reasonable inferences have been drawn in favor of the nonmovant").
Because the action against FIGA was untimely, we affirm the final summary judgment.
Finally, we observe that the one-year statutes of limitations contained in
sections
95.11(5)(d) and
631.68 may compel claimants to file lawsuits against FIGA
before FIGA has completed the processing of their claims and made satisfactory
payments....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1989 WL 151453
...[1] Later in May 1988, Queen filed this case against McInnis and Clearwater Electric, which included allegations of punitive damages. Both Clearwater Electric and McInnis answered Queen's complaint and raised the one-year limitations period contained in sections
95.11(5)(d) and
631.68, Florida Statutes (1983), as an affirmative defense....
... Actions other than for recovery of real property shall be commenced as follows: ... . (5) WITHIN ONE YEAR. ... . (d) An action against any guaranty association and its insured, with the period running from the date of the deadline for filing claims in the order of liquidation. Section 631.68, Florida Statutes (1983) provides: Limitation; certain actions....
...The question then remains whether by the application of the preceding statutes Queen is barred from proceeding against Clearwater Electric and McInnis to the extent of the $1,250,000 coverage. We conclude that he is so barred. Subsection (d) was added to section
95.11(5) in conjunction with a 1983 amendment to section
631.68, [2] whose effect was to apply also the one-year bar to claims filed against the insured through FIGA. Ch. 83-38, Laws of Fla. Previously, section
631.68 had established a one-year limitations period only upon claims filed against the insolvent insurer through FIGA....
...appropriate. Nales v. State Farm Mut. Auto Ins. Co.,
398 So.2d 455 (Fla. 2d DCA 1981), review denied,
408 So.2d 1092 (Fla. 1981). Queen further argues that by shortening the statute of limitations from four years to one year under sections
95.11 and
631.68, the legislature has effectively denied his constitutional right to have access to the courts under Article I, section 21 of the Florida Constitution....
...is opinion. Reversed and remanded with directions. FRANK, A.C.J., and ALTENBERND, J., concur. NOTES [1] Ken Marks Ford remained a party in the original lawsuit, which proceeded in the trial court. [2] The legislative history of the 1983 amendment to section
631.68 indicates that the statute of limitations section
95.11 is also amended to reflect this amendment....
...[3] We note in passing that certain exceptions exist to the nonjoinder provisions which would allow a claim or action to be maintained against both the insurer and the insured. In those few instances, the term and as it is used in sections
95.11(5)(d) and
631.68 could be given its conjunctive meaning....
CopyPublished | Florida 3rd District Court of Appeal
...assigned from Mairo de Leon, who was insured by the now-defunct
Windhaven Insurance Company. Appellee, the Florida Insurance Guaranty
Association (FIGA), moved to dismiss on the basis that the action was not
timely filed within one year of the claims deadline, as required by section
631.68, Florida Statutes.1 The trial court agreed....
...ing, Inc. v.
C & H Clothing, Inc.,
652 So. 2d 893 (Fla. 3d DCA 1995) (same).
3
places Ray Medical Center’s deadline for suing FIGA to recover as an
assignee of Mr. de Leon on or before January 6, 2022. See §
631.68, Fla.
Stat....
...ims, or
any extension thereof, with the receiver of the insolvent insurer shall
thenceforth be barred as a claim against the association and the insured.”);
Jones v. Fla. Ins. Guar. Ass’n, Inc.,
908 So. 2d 435, 451 (Fla. 2005)
(agreeing that section
631.68 requires actions be brought within one year of
the claims deadline)....
...notice required by this subsection.”). However, this statute operates only to
toll the “statute of limitation for an action under this section.” Id. (emphasis
added). The applicable statute of limitations for an action against FIGA
derives from section 631.68, not the No-Fault Law....
... Homewise Preferred Ins. Co.,
209 So. 3d 682, 683 (Fla. 5th DCA 2017) (“If
a first-party suit is not filed against the insurer before insolvency occurs, the
insured is required to file its action against FIGA before the limitation periods
in sections
95.11(5)(d) and
631.68 expire.” (citing Betancourt v....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 603317, 2017 Fla. App. LEXIS 1958
...by
[FIGA]." During the stay, FIGA notified Gonzalez and Perdomo that it had assumed
their claim and had assigned it to an adjuster. FIGA also advised them that the
deadline for filing suit against it was the one-year statutory period set forth in section
631.68....
...mo
for instituting a new lawsuit against it expired without their effecting service upon FIGA.
FIGA's counsel then made a limited appearance and filed a motion to dismiss this
action. The trial court granted FIGA's motion to dismiss, interpreting section 631.68 to
require that when FIGA assumes the defense of a covered claim, an insured who has
already filed a timely lawsuit against its homeowner's insurance carrier must file a new
-2-
lawsuit against FIGA within section 631.68's one-year filing period or be forever barred.
This appeal ensued.
On appeal, Gonzalez and Perdomo argue that the trial court erred in
granting FIGA's motion to dismiss for lack of jurisdiction because section 631.68 only
applies to new lawsuits filed against FIGA after an insurer is declared insolvent....
...ndant by operation of
statute and there is no need for the filing of a new lawsuit against FIGA or for FIGA to
be separately served in the pending lawsuit.
We therefore must conclude that the reliance by FIGA and the trial court
on section 631.68 as a bar to the instant action is misplaced. Section 631.68 is entitled
"Limitation; certain actions" and states as follows:
A covered claim as defined herein with respect to which
settlement is not effected and suit is not instituted against
the insu...
...ated purpose of permitting a proper defense
by FIGA of all pending causes of action on covered claims and that the statute "allows
FIGA to request from the trial court that the stay be enlarged, shortened[,] or waived."
Id. Noting that "[s]ection
631.68 must be read in harmony with section
631.67, and all
other related provisions of chapter 631, in order that the objectives of each of the
chapter's provisions not be sacrificed," id. at 945, the Third District concluded that
"FIGA's interpretation of section
631.68 would impair those specific [sections of chapter
-5-
631] that address pending cases," id. at 944. The court therefore concluded that
"[s]ection
631.68 bars suits that have not yet been filed (in other words, non-pending
[sic] lawsuits) from being filed more than one year beyond the deadline for filing claims
with the receiver for the insolvent insurer." Id.
We agree with the...
CopyPublished | Florida 4th District Court of Appeal
...ar contractual limitation and
the five-year statutory time limit in sections
95.11(2)(b) and (2)(e)
(applicable to breach of contract actions). FIGA argued sections
95.11(2)(b) and (2)(e) did not conflict with the one-year limit in sections
631.68 and
95.11(5)(d), Florida Statutes (2020), which Golf Villas had
claimed applied specifically to actions against FIGA. FIGA argued the
purpose of sections
631.68 and
95.11(5)(d) is to shorten the time limit to
file suit on FIGA claims as an additional protection against FIGA’s financial
responsibility to resolve claims against an insolvent insurer....
...Statutes (2020), to rely on all defenses available to Insolvent Insurer,
including the statute of limitations.
Golf Villas opposed summary judgment. Golf Villas argued the
applicable statute of limitations was the one-year period provided by
sections
631.68 and
95.11(5)(d)....
..., to grant
FIGA’s summary judgment motion and dismiss the case for a statute of
limitations violation. More specifically, Golf Villas argues the solely
applicable statutes of limitation for FIGA’s alleged violation of statutory
duty are sections
631.68 and
95.11(5)(d), 2 Florida Statutes (2020).
At oral argument, the parties agreed our resolution focuses on whether
the trial court applied the correct statutes in determining Golf Villas’ suit
against FIGA was time-barred....
...have all rights, duties, defenses, and obligations of the insolvent insurer
as if the insurer had not become insolvent.” §
631.57(1)(b), Fla. Stat.
(2020) (emphasis and bold emphasis added).
The Parties’ Statutes of Limitations Arguments
Golf Villas argues sections
631.68 and
95.11(5)(d) are the solely
applicable statutes of limitations controlling its statutory violation claim
against FIGA. Section
631.68 provides:
A covered claim as defined herein with respect to which
settlement is not effected and suit is not instituted against the
insured of an insolvent insurer or the association within 1
year after the deadline for filing claims, or any extension
thereof, with the receiver of the insolvent insurer shall
thenceforth be barred as a claim against the association and
the insured.
§
631.68, Fla....
...5
guaranty association and its insured, with the period running from the
date of the deadline for filing claims in the order of liquidation.”
§
95.11(5)(d), Fla. Stat. (2020) (emphasis added).
FIGA acknowledges sections
631.68 and
95.11(5)(d), but disagrees
those are the only two statutes of limitation applicable to this case.
Instead, FIGA argues that sections
95.11(2)(b) and (2)(e), Florida Statutes
(2020), control this case’s outcome....
...(e) Notwithstanding paragraph (b), an action for breach of a
property insurance contract, with the period running from the
date of loss.
§
95.11(2), Fla. Stat. (2020) (emphasis added).
FIGA additionally argues that sections
631.68 and
95.11(5)(d) were
enacted to provide additional protections against FIGA’s financial liabilities
by offering even shorter limitations periods than might apply to parties
other than FIGA, such as the five-year statute of limitation in sections
95.11(2)(b) and (2)(e)....
...Applicable Caselaw and Statutory Interpretation
“If a first-party suit is not filed against the insurer before insolvency
occurs, the insured is required to file its action against FIGA before the
limitation periods in sections
95.11(5)(d) and
631.68 expire.” Morrison v.
Homewise Preferred Ins. Co.,
209 So. 3d 682, 683, (Fla. 5th DCA 2017). In
contrast, “the limitations period in section
631.68 is inapplicable to first-
party lawsuits pending against the insurer when the insurer is declared
insolvent.” Fla....
...3 In this case, the
parties do not dispute that Golf Villas did not sue Insolvent Insurer before
the insurer became insolvent. The parties also do not dispute that Golf
Villas sued FIGA within the one-year period for claims to be filed pursuant
to the insolvency order. Thus, arguably, sections
95.11(5)(d) and
631.68
apply to this case.
The question we confront is whether sections
95.11(5)(d) and
631.68
control this case as Golf Villas argues, or sections
95.11(2)(b) and (2)(e)
and
631.57(1)(b) control as FIGA argues.
We begin with the principle that courts must look to the text itself when
interpreting statutes....
...FDH Infrastructure Serv., LLC,
364 So. 3d 1082,
1084 (Fla. 3d DCA 2023) (citations omitted). Because the third tenet is
applied “if a doubt arises,” we explore whether a doubt arises after
considering the first two tenets.
3 Morrison also concluded neither section
631.68 nor section
95.11(5)(d) applies
to suits filed before the insurer went insolvent.
209 So. 3d at 685.
7
Sections
631.68 and
95.11(5)(d) both address actions against any
guaranty association and its insured. Section
95.11(2)(e) address actions
for breach of a property insurance contract. Under a “specific versus
general” statute analysis, sections
631.68 and
95.11(5)(d) preempt section
95.11(2)(e), because section
95.11(2)(e) addresses a more general subject.
However, under a “later versus earlier” analysis, section
95.11(2)(e) clearly
preempts.
Section
631.68 was initially enacted in 1971 and amended in 1977 and
1983....
...May 16, 1983). Section
95.11(2)(e) was enacted in 2011. Ch. 11-39, § 1, Laws of Fla. (eff. May 17,
2011). Thus, under the principle that a later statute is given effect over
an earlier statute, section
95.11(2)(e) is more controlling than sections
631.68 and
95.11(5)(d).
In the context of suits against FIGA, we determine the more recent
pronouncement of legislative intent standard controls over the specific
versus general standard because of the duty to harmonize Chapter 631’s
provisions.
We agree with the Third District that “[s]ection
631.68 must be read in
harmony with ....
...ction
631.54(4) defines as “an unpaid
claim . . . which arises out of, and is within the coverage [of] the applicable
limits of an insurance policy to which this part applies[.]” We also agree
with FIGA’s argument that sections
95.11(5)(d) and
631.68 were intended
to provide protections against FIGA’s financial liability for claims in
addition to other limitation provisions that might apply under section
95.11....
