Cantens v. Certain Underwriters at Lloyd’s London
2024 WL 591695, 3d DCA, 2/14/24
Judge Bokor
Topics: Retroactivity
Full Take: The trial court dismissed a property-owner’s insurance claim without prejudice after the insurer filed a motion to dismiss for failure to send the Department of Financial Services a presuit notice even though the effective date of the notice statute fell after the date on which the policy was entered.
Generally, substantive laws are presumed to apply only prospectively in the absence of clear legislative intent to the contrary, and “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” However, this presumption applies only to statutes dealing with substantive rights, as opposed to “procedural or remedial” ones, which may properly be applied retrospectively. Remedial or procedural statutes do not fall within the constitutional prohibition against retroactive legislation, and they may be held immediately applicable to pending cases. When considering whether a statute applies retroactively, courts apply a two-factor test: (1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether retroactive application is constitutional (because the statute is merely procedural or remedial).
The statute does not explicitly state, “This statute is to apply retroactively.” But the DCA held that since the statute purports to apply to “all suits arising under a residential or commercial property insurance policy,” and because subsection 627.70152(3) serves as “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 the policy date.
The presuit notice requirement is procedural, not substantive, in nature. Procedural statutes are those that do not create or define rights, but rather govern the “course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.”
The decision notes that it agrees with a similar decision in the Fourth District and that it expressly and directly conflicts with a decision of the Sixth District Court of Appeal. Thus, this issue seems destined for the Supreme Court of Florida.
