Motion-Secondary: COOPER, TERRIE V CYPRESS PROPERTY AND CASUALTY INSURANCE COMPANY

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                                Filing # 139029255 E-Filed 11/22/2021 06:39:29 PM

IN THE COUNTY COURT OF THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION

TERRIE COOPER,
Plaintiff, CASE NO.: 502021CA009913XXXXMB
v.

CYPRESS PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO
STATE A CAUSE OF ACTION
COMES NOW, Plaintiff, TERRIE COOPER (hereinafter “Plaintiff’), by and through
undersigned counsel and files this instant Response in Opposition to Defendant’s, CYPRESS
PROPERTY & CASUALTY INSURANCE COMPANY, (hereinafter “Defendant”), Motion to

Dismiss Plaintiff's Complaint, and in support thereof, Plaintiff states as follows:

STATEMENT OF RELEVANT FACTS

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Luis Cas¢ arises Out G1 ain Wisuraice Crain Uispute TGiaung w UeiCiualt 5 lanurE Ww

pay insurance benefits to Plaintiff for damages sustained at Plaintiff's property in connection with
claim number CFL200094885 (hereinafter the “Claim”), a covered loss under the insured’s
property insurance Policy #FYR 1302011 05 81 (hereinafter the “Policy”) with a policy period of
October 19, 2016 to October 19, 2017 (hereinafter the “Policy Period”).

2. The Plaintiff sustained damages to the subject property on September 10, 2017,
caused by hurricane damage at 869 Orchid Drive, Royal Palm Beach, Florida 33411-3454
(hereinafter the “Property”). At all times material hereto, Plaintiff's Policy was in full force and

effect.

Page 1 of 10

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property insurance statute, Florida Statute §627.70152 (“the Statute”). This statute took effect on

July 1, 2021.
5. The new statute provides in pertinent part:

(3) NOTICE.-
(a) 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
determination of coverage under s. 627.70131. Notice to the insurer must be provided by
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§627.70152, Fla. Stat. (2021).

6. On September 9, 2021, Defendant filed its Motion to Dismiss Plaintiffs Complaint
for Failure to State a Cause of Action erroneously asserting that this instant action should be
dismissed because this newly enacted statute retroactively applied to policies dated, prior to the
July 1, 2021 effective date.

7. Accordingly, Defendant alleges that the Plaintiff did not comply with the notice of
intent to litigate section of the newly enacted statute.

8. Plaintiff maintains the position that they were under no obligation to comply with
the requirements of Fla. Stat. § 627.70152 because said statute was not in existence at the time the
Plaintiffs Policy went into effect on October 16, 2016.

9. Further, Defendant’s Motion to Dismiss is itself inappropriate because it contains
allegations that address topics outside of the four corners of the Complaint.

10. This response follows.

Page 2 of 10ARGUMENT

=

DETENNANTIO MATION COATT DN DE NENIDN AC TOT ADEDATIVET NATE
WAL SIWUIIUN SUUULY DL UE A 1s UNA

TO CONSIDER IS THE DATE THE INSURANCE POLICY CAME INTO EFFECT
RATHER THAN THE STATUTE’S EFFECTIVE DATE

    

11. | To support Defendant’s position that the new statute should apply to this instant
claim the Defendant relies solely on, July 1, 2021, the date Fla. Stat. §627.70152 became effective.
12. The Supreme Court of Florida has clearly stated that a statutory change cannot be
applied retroactively if it impacts a substantive right. Procraft Exteriors, Inc. a/a/o John Noer v.

Metropolitan Casualty Ins. Co., No. 2:19-cv-883-FtM-38MRM, 2020 WL 5943845, at *2 (M.D.

 

13. The relevant date is the date the policy was issued, not the date the suit or damage
occurred because “the statute in effect at the time the insurance contract is executed governs
substantive issues arising in connection with that contract.’” Menendez v. Progressive Express Ins.
Co., 35 So. 3d 873, 876 (Fla. 2010) (quoting Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d
106, 108 (Fla. 1996). See Procrafi Exteriors, Inc. a/a/o John Noer v. Metropolitan Casualty Ins.
Co. (holding that because Fla. Stat. §627.428 was the statute in effect at the time when the
insurance policy was issued in this case, Fla. Stat. §627.428 controls any substantive issues
arising out of the contract) (emphasis added); see also, Lumbermens Mut. Cas. Co. v. Ceballos,
440 So.2d 612, 613 (Fla. 3d DCA 1983) (holding that a liability policy is governed by the law in
effect at the time the policy is issued, not the law in effect at the time a claim arises).

14. The Court in Menendez, 35 So. 3d 873, (Fla. 2010), found that the operative date
relies upon the date the insurance policy was enacted, and not the date the statute was enacted. See
also JPJ Cos, LLC, No. 9:19-cv-81696, 2020 WL 264673, at *1 (S.D. Fla. Jan. 17, 2020), (holding

that the operative date is the date the insurance policy was issued, not the date the suit was filed as

defendant contends, and not the date the assignment agreement was entered into, as Plaintiff

Page 3 of 10contends).

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ae PEP GNWANL 9 IMWUILUIN SEU U Dy UA UA A

SUBSTANTIVE RIGHTS CANNOT BE APPLIED RETROACTIVELY.
15. The Supreme Court of Florida in Menendez v. Progressive Exp. Ins. Co., Inc., 35

So. 3d 873 (Fla. 2010), outlined a two-prong test as to whether a statute enacted after the issuance

af an inenrance nolicew chanid annly retraactively (1\ Whether the leciclature intended tha ctatnte
Oh Gin HOU GION PUMUY GHUULG GPPZy FRUPUGUUYCAY. (Ay THARRHIOL LER IG ROGUE LOWRERCGE LRU GEGULELS

to apply retroactively; and (2) Whether application would violate any constitutional principles. See
also Patronis v. United Ins. Co. of America, 299 So.3d 1152, 1159 (Fla. Ist DCA 2020) (“If
statutory amendments are deemed substantive, two factors come into play in deciding whether
they apply retroactively: (1) whether the statute expresses intent to apply retroactively; and, if so,
(2) whether retroactive application is constitutional.”) (alteration in original) (quoting Old Port
Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, Inc., 986 So. 2d 1279, 1284 (Fla. 2008).

16. In Menendez, a statute was enacted after the date of Menendez’s automobile
accident (referred to as the statutory pre-suit provision) that placed additional requirements on an
injured person seeking to recover personal injury protection (PIP) benefits before filing suit.
Menendez filed suit against Progressive for overdue benefits. After several years of litigation, the
issue turned on not whether Progressive owed the benefits, but on whether the statutory pre-suit
provision was applicable.

17. In order to resolve the issue, the court first considered the purpose of the newly
exacted provision and explored the overall statutory scheme of Florida’s Motor Vehicle No-Fault
Law. The main purpose of the newly enacted pre-suit provision was the requirement of filing a
notice of intent to litigate, which such notice could not be sent until benefits were overdue. Further,
the No-Fault Law is to “provide for medical, surgical, funeral, and disability insurance benefits
without regard to fault, and to require motor vehicle insurance securing such benefits.” Menendez,

35 So. 3d 873, 876-77, (Fla. 2010) (quoting § 627.731, Fla. Stat. (2006)).

Page 4 of 1018. The court went on to set out the standard of the two-prong test. Under the first

  
    

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that the Legislature intended for the statutory pre-suit notice provision to be applied retroactively.
19. The Menendez court then considered the second prong of the test: whether
application would violate any constitutional principles.
20. The Menendez court relied on its decision in Laforet, namely: “The Court will reject
such a [retroactive] application if the statute impairs a vested right, creates a new obligation, or
imposes a new penalty. State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995).

21. To answer the second prong, the court had to comnare the statute “a

 

ed at
the time the insureds’ insurance policy was issued with the 2001 amendment.” Menendez, 35 So.
3d 873, 877-78, (Fla. 2010).

22. The court noted that it “has generally held that statutes with provisions that impose
additional penalties for noncompliance or limitations on the right to recover attorneys' fees
do not apply retroactively.” /d. at 878 (emphasis added).

23. Specifically, the court held that the 2001 amendment, even with the intent of
retroactive application, could not apply in this case because it allowed the insurer to avoid an award
of attorneys’ fees, which ultimately caused a substantive change to the statute that was in place at
the time the insureds’ insurance policy was issued. See Metro. Dade Cty. V. Chase Fed. Hous.
Corp., 737 So. 2d, 494, 503 (Fla. 1999) (Even if the Legislature intended for retroactive
application, a court must reject such an application because “retroactive abolition of substantive
vested rights is prohibited by constitutional due process considerations.”).

24. The Menendez court also found that the 2001 amendment allowed insurers

additional time to meet their obligations, and that a claim for benefits could not be initiated

until the additional time expired. Jd. at 878 (emphasis added).

Page 5 of 1025. Therefore, “the statute substantively alters an insurer's obligation to pay and

 

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(emphasis added).

26. Ultimately, the court held that the pre-suit notice provision could not be
retroactively applied to insurance policies issued before the effective date of the amendment. See
Fleeman v. Case, 342 So.2d 815, 818 (Fla. 1976) (“Even were we to conclude that the Legislature
intended retroactive application of this statute, we would be compelled to hold it invalid as

impairing the obligation of contract under Article I, Section 10 of both the United States and

 

(Fla.1975)).

27. The Menendez holding clearly applies to this instant case, where an analysis of the
two-prong test shows that the Statute does not retroactively apply to policies written prior to the
effective date of Fla. Stat. §627.70152.

28. Looking to the first prong, whether the legislature intended the statute to apply
retroactively, we see that from a plain reading of the Statute that there is no retroactive application.

29. The first section of the new statute states as follows:

APPLICATION.-This section applies exclusively to all suits not
brought by an assignee arising under a residential or commercial
property insurance policy, including a residential or commercial

property insurance policy issued by an eligible surplus lines
insurer.

§627.70152(1)
30. Courts traditionally rely upon the language of the statute when it is clear and
unambiguous. Robert Bennett v. St. Vincent’s Medical Center, Inc., 71 So.3d 828 (Fla. 2011).

31. Here the statutory language is clear and unambiguous that the intent of the Florida

Legislature was not to have §627.70152 apply retroactively.

Page 6 of 1032. Despite the clear intent of the Legislature, if this Court surmises that §627.70152
Was intended to be applicd retroactively, an anatysis of the second prong of the Menendez test,
shows that retroactive applicability violates substantial constitutional principles as the application
of the statute impairs a vested right, creates new obligations, and imposes a new penalty.

33. When looking to the second prong, there is no prior statute to compare §627.70152.
However, §627.70152 substantively alters an insurer's obligation to pay and an insured's

right to sue under the contract.” Menendez, 35 So.3d at 879 (emphasis added).

34. Not only does the Statute create an elevated barrier to entry of litigation and will

 

new obligations, and imposes a new penalty by: 1) Calling for a notice of intent to litigate

requirement; 2) calling for excessive requirements in that notice of intent to litigate; 3) allowing
for multiple inspections for denied claims, wherein it is likely that an inspection already occurred;
4) allowing for dismissal or abate of a case if notice was not received; and 5) limits an insured
right to recover attorney fees.

35. Clearly under the Menendez holding and other established case law §627.70152
does not apply retroactively as this Statute infringes on a multitude of Homeowner’s rights and
creates obligations which Homeowners were previously not faced with.

Ii. A MOTION TO DISMISS IS INAPPROPRIATE IF IT ALLEGES FACTS NOT
WITHIN THE FOUR CORNERS OF THE COMPLAINT.

36. “A complaint should not be dismissed for failure to state a cause of action unless
the movant can establish beyond any doubt that the claimant could prove no set of facts whatsoever
in support of his claim.” Inglasbe v. Stewart Agency, Inc., 869 So. 2d 30, 35 (Fla. 4th DCA 2004).

37. A motion to dismiss must be decided on questions of law, only, and matters not

shown on the face of the complaint cannot be properly raised on a motion to dismiss. Poulos v.

Vordermeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976) (citing 25 Fla. Jur., Pleadings § 127).

Page 7 of 1038. A court may not properly go beyond the four corners of the allegations of the
complaint wien considering a motion to dismiss it. See Dawson v. Blue Crass Association, 293
So.2d 90 (Fla. lst DCA 1974); See also Thompson v. City of Jacksonville, 130 So.2d 105 (Fla. 1st
DCA 1961).

39. The Plaintiff's Complaint addresses: 1) the damages in the home that were
sustained as a result of the loss; 2) that the loss was a covered loss under the policy; 3) that the
Defendant investigated the claim; 4) that the subject property sustained damage greater than those

acknowledged by the Defendant; 5) and that as a result the Defendant breach the policy of

 

try #3)

40. The facts alleged in Defendant’s Motion to Dismiss are not within the four corners
of the Complaint; mainly, Plaintiffs failure to comply with section 627.70152(3).

41. These facts will remain outside of the four corners of Plaintiff's Complaint because
Plaintiff was under no obligation to comply with Fla. Stat. § 627.70152, as it came into effect after
the date the insurance policy became effective on October 19, 2016, which is the operative date in
this case.

42. Therefore, Defendant has not established beyond any doubt that the Plaintiff can
prove no set of facts whatsoever in support of its claim given the disputed issue of the operative
date, which can affect Plaintiff's substantive rights.

CONCLUSION

43. Defendant has wrongfully assumed that the date on which the assignment
agreement was signed is the operative date that requires Plaintiff to comply with new obligations
set out in Fla. Stat. §627.70152. Florida courts have held that a policy is governed by the law in

effect at the time the policy is issued, not the law in effect at the time a claim arises.

44. — Inthis case, Plaintiff’s Policy came into effect on October 19, 2016, well before the

Page 8 of 10effective date of §627.70152.

 
  

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retroactively from the plain language of the statute.

46. | However, even if this Court proposes it does, such application must be denied by
this Court because it would impair Plaintiff's substantive rights.

47. Plaintiff is under no obligation to comply with the new requirements imposed by
Fla. Stat. § 627.70152 enacted on July 1, 2021.

48. Furthermore, Defendant’s Motion to Dismiss is improper because it alleges facts

not within the four corners of the Complaint. Therefore, Defendant’s motion should be denied.

WHEREFORE, Plaintiff, TERRIE COOPER, respectfully requests this Honorable Court
enter an order denying Defendant’s Motion to Dismiss and estopping Defendant from using this

Motion or its contents as a basis to refuse to litigate or otherwise comply with this Court’s

deadlines and the Florida Rules of Civil Procedure.

(Certificate of Service on Following Page)

Page 9 of 10CERTIFICATE OF SERVICE

TUDDEDV CEDTICV that a AF tha farannin, fad vin tha Tlarida Qaneta
TULADDY CORI 4, lial a tue Copy O1 ule loregoilg Was Seivea Via tie 1 1Oriaa Courts

e-filing portal and email on November 22, 2021, to all counsel of record.

Respectfully submitted,

THE PROPERTY ADVOCATES, P.A.

Attarnay far Dlaintiff
gxworuey 101 a rau

255 South Orange Avenue, Suite 750

Orlando, Florida 32801

Telephone: (321) 234-3600

Facsimile: (321) 256-5367

Primary E-Service: pleadings@thepropertyadvocates.com.
Secondary E-Service: cst oes nace com

 
      

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ST com

By: __¢ ) a5
GRANT AVGRIMES, ESQUIRE

FLORIDA BAR NO.:0124709
NESTOR M. IVANOR, ESQUIRE

FLORIDA BAR NO.: 1003018

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