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Filing # 123646288 E-Filed 03/24/2021 08:31:37 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
MASSEY CONSTRUCTION GROUP, INC. CIVIL ACTION NO: 20-000315-CA
a/alo MARGARET PUCKETT and
MAX PUCKETT,
Plaintiff,
AMERICAN INTEGRITY INSURANCE
COMPANY OF FLORIDA,
Defendant.
/
PLAINTIFF’S RESPONSE AND INCORPORATED
LAW IN OPPOSITION TO DEFENDANT’S MOTION TO
STRIKE PLAINTIFF’S REQUEST FOR ATTORNEY’S FEES
Plaintiff, MASSEY CONSTRUCTION GROUP, INC. (“MCGI”), responds in opposition
to Defendant’s, UNITED PROPERTY & CASUALTY INSURANCE (“AMERICAN
INTEGRITY”), motion to strike MCGI’s request for attorney’s fees and says:
I FACTUAL AND PROCEDURAL BACKGROUND.
MCGI filed a complaint asserting a cause of action for breach of contract based on an
insurance contract entered in 2016-2017 between AMERICAN INTEGRITY and _ the
homeowners, Margret Puckett and Max Puckett. MCGI is a contractual assignee of the
homeowner’s insurance post-loss money claim. In the complaint, MCGI asserted entitlement to
attorney’s fees pursuant to the insurance contract, § 627.428, Fla. Stat. and § 626.9373, Fla. Stat.
AMERICAN INTEGRITY asserts in its motion that § 627.428 and § 626.9373 have been
superseded by § 627.7152 (10), Fla. Stat. (2019), which was enacted into law and made effective
July 1, 2019, and then later was amended to bring Section (10) forward in time to be effective as
of May 24, 2019. However, MCGI argues that based on the well-established and binding case law
of the Florida Supreme Court, § 627.7152 affects a substantive contractual or statutory right related
to an insurance contract and, therefore, cannot apply retroactively to an insurance contract incepted
prior to the effective date of the new statute.
IL. ANALYSIS.
A. The Law Applicable To A Dispute Relating To An Insurance Contract Is The
Law Existing At The Time The Parties Executed The Insurance Contract.
Pursuant to the binding law of the Florida Supreme Court, the statutes in effect at the time
an insurance contract is executed govern substantive contractual or statutory rights related to the
insurance contract. In Hassen v. State Farm Mut. Aut. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996),
the Florida Supreme Court held that “... the statute in effect at the time an insurance contract is
executed governs substantive issues arising in connection with that contract.’”” In Menendez v.
Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010), the Florida Supreme Court reiterated
the Hassen holding and further stating that “Under Florida law, this Court look[s] at the date the
insurance policy was issued and not the date that the suit was filed or the accident occurred...”
Menendez, at 876 (emphasis supplied).
In the instant case, the insurance contract at issue was executed in 2016-2017. Any
assignment of the contractual rights of the policy are transfers of rights created by the executed
insurance contract. The assignee of those rights receives all substantive contractual and statutory
rights related to the insurance policy and any claims arising therefrom, including a claim for
attorney’s fees incurred to enforce the claim. An assignment contract is merely a transfer of the
pre-existing contractual and statutory rights related to the post-loss money claim. The statutes in
effect at that time governing entitlement to an award of attorney’s fees relating to insurance
contracts were § 627.48 and § 626.9373, Fla. Stat.; those statutes are the statutes applicable to
those insurance policies, assignments of those policies and any attorney’s fees issues in this case
arising from those policies and claims.
B. Laws Affecting Entitlement To Attorney’s Fees Are Substantive Rather
Than Procedural And Can Be Applied Prospectively Only.
The laws in effect at the time of execution of the policy affect only substantive rights
relating to the insurance contract. Therefore, the question is whether entitlement to attorney’s fees
is a substantive right under Florida law. The answer is “Yes.”
The Florida Supreme Court clearly and unequivocally established under Florida law that
an entitlement to attorney’s fees by statute, and procedures relating to obtaining an entitlement to
attorney’s fees, are substantive issues or rights. See Menendez; Moser v. Barron Chase Sec., Inc.,
783 So. 2d 231, 236 (Fla. 2001); Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985); and L. Ross,
Inc. v. R. W. Roberts Const. Co., Inc., 481 So. 2d 484, 485 (Fla. 1986). In Menendez, the Florida
Supreme Court reiterated that attorney’s fees are substantive issues/rights and that statutes
affecting the procedure or entitlement to attorney’s fees are substantive, saying:
..-[W]e have previously held that the statutory right to attorney’s fees is not
a procedural right, but rather a substantive right. Moser v. Barron Chase Sec., Inc.,
783 So.2d 231, 236 (Fla. 2001). For example, in Young v. Altenhaus, 472 So.2d
1152 (Fla. 1985), we held that section 768.56, Florida Statutes (1981), which
permitted a reasonable attorney’s fee award to the party that prevailed in a
malpractice cause of action, was a substantive statute in light of the prior
obligations under the American Rule adopted in Florida, which required each party
to pay its own fees unless otherwise directed by statute or an agreement between
the parties. Jd. at 1153-54. In addition, our district courts have concluded that
statutes that limit the ability to seek attorney’s fees are substantive in nature.
Under the holdings of these cases, the 2001 statutory amendment cannot be
applied retroactively because it allows an insurer to avoid an award of attorney’s
fees, which constitutes a substantive change to the statute in effect at the time the
insureds’ insurance policy was issued.
Menendez, 35 So. 3d at 878-879. The Florida Supreme Court reasoned that the new 2001 version
of the statute at issue as a whole was a substantive statute. The Menendez Court asserted that
multiple provisions of the statute made the entire statute substantive saying the multiple provisions
had four substantive effects as follows:
In agreeing with the insureds that the statute cannot be applied retroactively, we
conclude that the most problematic provisions of the statute are those which (1)
impose a penalty, (2) implicate attorney’s fees, (3) grant an insurer additional time
to pay benefits, and (4) delay the insured’s right to institute a cause of action.
Id, The Menendez Court found that the amended statute created new pre-suit procedures, created
additional time for the insurer to avoid or to negate exposure to fees which did not exist at the time
the insurance policy was executed and created a procedural barrier to filing suit.
In the instant case, multiple provisions of § 627.7152 have the identical effects and suffer
from the identical problems as the statute modifying the right to attorney’s fees in Menendez.
Section 627.7152, Fla. Stat. (2019) sets up a new statutory scheme that directly affects entitlement
to attorney’s fees. First, it imposes a penalty. The assignee cannot file suit immediately upon the
insurer denying full payment of a claim or failing to adjust a claim within 90 days of notice of first
notice of the claim. It creates new obligations for an assignee to obtain an award of attorney’s
fees, namely the codified proposal for settlement provisions awarding attorney’s fees based on a
percentage award calculation. § 627.7152 (4)(d)(e) and (10)(a)(b), Fla. Stat. (2019). It also
subjects the assignee to a potential attorney fees shift based on the schedule for awarding attorney’s
fees to one of the parties as set forth in section 10 of the statute. § 627.7152 (10(a)(b), Fla. Stat.
(2019). Second, the new statute implicates attorney’s fees; it creates a new right for attorney’s
fees in favor of the insurer under certain statutory conditions. Jd. Third, the new statute grants
an insurer additional time to pay benefits. It creates a new substantive rather than procedural pre-
suit notice procedure acting as a condition precedent to access to courts. § 627.7152 (9)(a)(b), Fla.
Stat. (2019). See Menendez, 35 So. 3d at 879-880 (holding that a pre-suit notice requirement is
substantive rather than procedural). Fourth, the new statute delays the insured’s/assignee’s right to
institute a cause of action by imposing the condition precedent of the 10-day notice of intent prior
to filing suit.
Without question, § 627.7152 is a substantive statute that affects substantive rights pre-
existing the insurance contract executed between the insurer and the insured.
Cc Section 627.7152 Fails Florida’s Two-Pronged Test To Determine Whether
A Law Affecting A Substantive Right Can Be Applied Retroactively.
It is a well-established rule of statutory construction that a new statute or an amended
statute is presumed not to apply retroactively. See Arrow Air, Inc. v. Walsh, 644 So. 2d 422, 425
(Fla. 1994) and Hassan, 674 So, 2d at 108. Florida uses a two-pronged test to determine whether
an enacted law relating to prior-executed insurance contracts can be applied retroactively to affect
a substantive right, as follows: (1) whether the Legislature intended the enactment to operate
retroactively; and (2) whether the enactment would violate any constitutional principles.
Menendez, 35 So. 3d at 877 citing Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d
494, 499 (Fla. 1999). Section 627.7152 fails both prongs of the test.
1 Prong 1.
Section 627.7152 fails the first prong of the test. Section 627.7152 does not clearly express
an intent to apply retroactively. First, in fact, it expresses the intent to apply prospectively to
agreements entered into after July 1, 2019. See § 627.7152 (13). The Courts Jurisdictional Bill,
House Bill 337 at Section 23, the amendment to the newly-enacted statutory scheme, attempted to
advance only a portion, but not all of the new statute, by advancing § 627.7152 (10) to be effective
as to suits filed as of May 24, 2019, saying “...Section 23. Notwithstanding subsection (13) of
section 627.7152, as created by [§ 627.7152], subsection (10) of that section is effective upon
becoming a law.”). The Legislature only advanced the litigation/attorney fee portion of the
statutory scheme to apply the new attorney fee provisions fo the date of filing of a suit rather than
to the date of execution of the insurance contract and creation of the rights related thereto at the
time the insurance contract was entered into between the insurer and the insured. This is
impermissible as stated by the Menendez Court, which stated “Under Florida law, this Court
look[s] at the date the insurance policy was issued and not the date that the suit was filed or the
accident occurred...”. Menendez, 35 So. 3d at 876. Even the new section advancing the effective
date of a part of the statute does not express clearly an intent to operate retroactively to affect
vested contractual rights. Consequently, by its express language and by operation of the well-
established law applying to insurance contracts, § 627.7152 is inapplicable to insurance contracts
retroactively as the Legislature failed to indicate that the statutory section was enacted expressly
to apply retroactively to affect substantive rights. Therefore, § 627.7152 fails the first prong of
the test.
2. Prong 2.
Even if this Court somehow finds that the Legislature clearly expressed the intent for
retroactive application in the wording of the statute, the Court, nonetheless, must deny retroactive
application because the statute fails the second prong of the test. Even if the Legislature intends a
newly-enacted law to apply retroactively and clearly expresses that intent, the Legislature may not
enact “expo facto” laws affecting a vested contractual right or established substantive right by
creating new obligations or imposing a new penalty. Menendez at 877-878. In Menendez, the
Florida Supreme Court cited its prior rulings and reiterated the limits on the Legislature in enacting
laws affecting certain rights as follows:
However, even where the Legislature has expressly stated that a statute will have
etroactive application, this Court will reject such _an application if the statute
impairs a vested right, creates a new obligation, or imposes a new penalty. See
State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995). Therefore,
the central focus of this Court’s inquiry is whether retroactive application of the
statute “attaches new legal consequences to events completed before its
enactment.” Metro. Dade County, 737 So.2d at 499 (quoting Landgrafv. USI Film
Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). In order to
answer this question, we compare section 627.736 as it existed at the time the
insureds’ insurance policy was issued with the 2001 amendment. (Emphasis
supplied).
Menendez, 35 So. 3d at 877-878. The Court must determine whether the statues creates “...new
legal consequences to acts before enactment.” See Memorial Hospital -West Volusia, Inc. v. News
Journal Corporation, 784 So. 2d 438, 440-441 (Fla. 2001). Clearly as set forth above, the new
statute attached new attorney fee obligations and bars to access to court to antecedent actions,
claims arising under the prior policies in existence prior to enactment of the new statute.
Additionally, as argued below the new statute affects pre-existing statutory and contractual rights
of both the assignee and the insured.
Finally, even if retroactive application of the statute may be in-line with or might vindicate
the statute’s stated or intended purpose, vindication of a statutory purpose for enactment does not
rebut the presumption against retroactive application of the statute against substantive rights. See
Hassan, 674 So. 2d at 109-110.
Section 627.7152 creates new procedures, creates new obligations and rights and affects
established substantive statutory and contractual rights based on acts committed prior to enactment
of the statute. Consequently, § 627.7152 cannot apply retroactively regardless of the Legislature’:
intent.
D. The Date of Execution of An Assignment Of Benefits Does Not Affect
Whether The New Statute Can Apply Retroactively To An Insurance Policy
Incepted Prior To Enactment Of The New Statute.
AMERICAN INTEGRITY asserts that the statute is actually prospectively to be applied
because the subject AOB was executed after July 1, 2019, the effective date of the new statute as
to new assignments of benefits contracts. However, an assignment contract does not create a claim
or any rights under the subject insurance policy. An assignment of a post-loss money claim is
merely a transfer of rights created by the executed insurance policy and occurrence of a covered
claim during the effective policy period. The assignee of an accrued post-loss claim under a policy
receives all rights relating to enforcement and collection of the assigned post-loss money claim,
including the right to collect attorney’s fees incurred in collection of the post-loss money claim.
The rights are created by the insurance policy and the attorney fee statutes in existence at the time
of inception of the policy. The assignment contract is merely a transfer of the pre-exiting
contractual rights and statutory rights relating to a post-loss money claim under the policy. An
assignment of benefits creates no claim, rights or obligations under the applicable insurance policy
or the statutes in effect at the time of inception of the policy. The statutes governing entitlement
to an award of attorney’s fees relating to an accrued claim for the instant case at bar were § 627.48
and § 626.9373, Fla. Stat. Therefore, those statutes are the statutes applicable to those insurance
policies, assignments of those policies and any attorney’s fees issues in this case arising from the
policy.
Additionally, the new requirements for a new an AOB contract entered into after July 1,
2019 affect pre-existing substantive contractual and statutory rights of both the insured and the
assignee, thereby prohibiting retroactive application of the new AOB requirements to policies
incepted before the effective date of that portion of the statute.
First, post-loss claims are freely assignable without the consent of the insurer.
Bioscience West, Inc. v. Gulfstream Property and Cas. Ins. Co., 185 So. 3d 638, 641 (Fla. 2d DCA
2016) and Start to Finish Restoration, LLC v. Homeowners Choice..., 192 So. 3d 1275 (Fla. 2d
DCA 2016). Additionally, the rights and obligations of an insurance policy do not automatically
travel with an assignment of a post-loss claim. See Bioscience West, Inc., 185 So. 3d 638, 641.
Section 627.7152 imposes conditions and specific contractual terms on an insured’s ability to
transfer a post-loss money claim and relieves the insured of multiple obligations that it places on
an assignee. Prior to the enactment of the provision of the new statute, an assignee that accepted
assignment of an insurance claim did not assume the rights, obligations and duties of the
insured under the policy unless the assignee specifically and voluntarily assumed those rights,
duties and obligations. Shaw v. State Farm Casualty Co., 37 So. 3d 329, 332-334 (Fla. 5th
DCA 2010); Citizens Property v. Ifergane, 114 So. 3d 190, 197 (Fla. 3d DCA 2012); Marlin
Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469 (Fla 3rd DCA 2004). Now, an
assignee must accept these conditions and the owner cannot freely contract to assign the claim
without these additional obligations imposed on the assignee.
Second, the new statute imposes on an assignee the requirement that it must take assignment
of certain of the insured’s duties under the insured’s insurance policy. Specifically, the statute
requires an assignee to conduct an examination under oath with the insurer at the insurer’s request.
This imposes a statutory obligation and condition of assignment that was not a prior obligation of
an assignee under established law. For instance, prior to enactment of the new statute, an assignee
had no legal or contractual duty to participate in an EUO under the policy unless the assignee
contractually assented to accept the duty of the insured. See Shaw v. State Farm Casualty Co.,
37 So. 3d 329, 332-334 (Fla. Sth DCA 2010); Citizens Property v. Ifergane, 114 So. 3d 190,
197 (Fla. 3d DCA 2012); Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469
(Fla 3rd DCA 2004).
Third, the new assignment of benefits requirements deprives an assignee of multiple
contractual and statutory rights that the assignee had prior to enactment of the statute. For instance,
the assignee suffers the obligation to pay attorney fee awards and costs in the litigation and loses
its right to enforce claims for its works against the owner through contract actions or lien actions.
All of these rights were available to an assignee under the laws existing prior to enactment of the
new statute.
Therefore, regardless of whether this Court determines that § 627.7152 is substantive as
a whole and, therefore, inapplicable in its entirety, the new assignment of benefits provisions when
viewed as a distinct part of the statute are substantive and not applicable retroactively to the pre-
existing claim and insurance contract in this case.
il. CONCLUSION.
Based on the argument above, this Court should deny AMERICAN INTEGRITY’s motion
and rule that § 627.7152 and the new AOB requirements set forth thereunder affect substantive
statutory and contractual rights and that it cannot be applied retroactively to the insurance contract,
or the assignment of benefits contract relating to a claim under a policy incepted before enactment
of the new statute.
FROMANG & FINCH P.A.
/s/ G. Steve Kerestes
G. Steve Kerestes, Esquire
FBN.: 26305
steve@fromangfinch.com
Alex Finch, Esquire
FBN.: 0994220
4767 New Broad Street
Orlando, FL 32814
Tel: (407) 999-9739
Email: alex@fromangfinch.com
2nd Email: afinchlegal@gmail.com
Mark A. Fromang, Esquire
FBN.: 712620
Email: mark@fromangfinch.com
10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of March, 2021 a true and correct copy of
the foregoing was served on all counsel of record via Florida E-Portal e-service.
FROMANG & FINCH P.A.
/s/ G. Steve Kerestes
G. Steve Kerestes, Esquire
FBN.: 26305
steve@fromangfinch.com
4767 New Broad Street
Orlando, FL 32814
Tel: (407) 999-9739
11
Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994)
10 IER Cases 84, 19 Fla. L. Weekly S592
KeyCite Yellow Flag - Negative Treatment a Statutes
Not Followed as Dicta Hernandez v. Motorola Mobility, Inc., S.D.Fla., \“=Effect on substantive rights
January 14, 2013 Statutes
645 So.2d 422 ‘Imposition of liabilities, penalties, duties,
Supreme Court of Florida. obligations, or disabilities
ARROW AIR, INC., Petitioner,
Presumption exists against retroactive
Michael WALSH, Respondent.
application of law that affects substantive rights,
liabilities, or duties.
No. 83,014.
| 32 Cases that cite this headnote
Nov. 17, 1994.
Synopsis
Flight engineer filed wrongful discharge action against
Attorneys and Law Firms
airline. The Circuit Court, Dade County, Jon I. Gordon, J.
dismissed for failure to state cause of action. Engineer
*422 Kathleen M. O’Connor of Thornton, David, Murray,
appealed. The District Court of Appeal, Ferguson, J., 629
Davis, Thornton & Sreenan, P.A., Miami, for petitioner.
So.2d 144, reversed. Airline appealed. The Supreme
Court, Kogan, J., held that private sector whistle-blowers Kelly B. Gelb of Krupnick, Campbell, Malone, Roselli,
statute would not be applied retroactively, since it created Buser & Slama, Fort Lauderdale, and Barbara Green of
new cause of action and affected substantive rights and Barbara Green, P.A., Coral Gables, for respondent.
liabilities.
Opinion
Decision quashed; remanded.
KOGAN, Justice.
West Headnotes (2) We have for review Walsh v. Arrow Air, Inc., 629 So.2d
144 (Fla. 3d DCA 1993), because of conflict with various
decisions from this Court addressing the retroactive
a Labor and Employment application of new legislation. We have jurisdiction. Art.
=Retroactive application V, § 3(b)(3), Fla. Const.
Private sector whistle-blower’s statute would not *423 The private sector Whistle—-Blower’s Act,' which
be applied retroactively; statute created new became effective June 7, 1991, prohibits private sector
cause of action and affected substantive rights employers from taking retaliatory personnel action?
and liabilities in light of fact that common-law against employees who “blow the whistle” on employers
tort for retaliatory discharge had never been who violate the law or against employees who refuse to
recognized in state, and mere fact that participate in violations of the law> and provides
retroactive application of statute would vindicate employees a civil cause of action for such retaliation.‘
its purpose more fully was not sufficient to rebut This case presents the question of whether the Act should
presumption against retroactivity. West’s F.S.A. be applied to impose liability for a termination that
§§ 448.101-448.105. occurred prior to its effective date.
This controversy began when Michael Walsh filed a
65 Cases that cite this headnote complaint against his former employer, Arrow Air, Inc.,
for wrongful discharge. Walsh is a Florida resident who
Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994)
10 IER Cases 84, 19 Fla. L. Weekly S592
was employed as a flight engineer by Arrow Air, a Orlando v. Desjardins, 493 So.2d 1027 (Fla.1986).
Florida corporation with its principal place of business in However, we have never classified a statute that
Dade County, Florida. Walsh alleges that he was fired on accomplishes a remedial purpose by creating substantive
May 15, 1989, in retaliation for delaying a flight new rights or imposing new legal burdens as the type of
scheduled for departure from John F. Kennedy Airport in “remedial” legislation that should be presumptively
New York and for reporting safety violations in applied in pending cases. See L. Ross, Inc. v. R.W.
connection with the flight. According to the complaint, Roberts Const. Co., Inc., 481 So.2d 484 (Fla.1986)
Walsh insisted on delaying the flight for five hours until (statute creating right to attorney’s fees could not be
proper repairs to the plane’s hydraulic system could be applied retroactively); City of Lakeland v. Catinella, 129
made and then reported the problems. Walsh’s actions So.2d 133, 136 (only statutes that do not create new or
were not well received by the maintenance director who take away vested rights are exempt from the general rule
protested entry of the report in the log book. Walsh was against retrospective application.) Our decision in Martin
fired approximately three weeks later. The action was County cannot support a contrary conclusion because we
brought in a Florida court under New York Labor Law were not addressing the retroactive application of the
section 740 (McKinney 1989). After determining that the statute at issue there. Rather, we were addressing whether
action was governed by Florida Law and that a cause of under the 1987 version of section 112.3187 an
action for retaliatory discharge was not recognized within employee's participation in the wrongdoing he disclosed
this state, the trial court granted Arrow Air’s motion to could serve as an absolute shield from liability under the
dismiss for failure to state a cause of action. statute. In that context, we determined that in light of its
“remedial” purpose—“to encourage the elimination of
Walsh appealed. The Third District Court of Appeal public corruption by protecting public employees who
originally affirmed. However, while the court was ‘blow the whistle’ ”—the statute should be liberally
considering Walsh’s motion *424 for rehearing, the construed in favor of granting access to the remedy. 609
private sector Whistle-Blower’s Act became effective. So.2d at 29.
After asking for supplemental briefs on the applicability
of the new law, the district court vacated its prior decision The district court is correct that the private sector
and reversed the dismissal of Walsh’s complaint. The Whistle-Blower’s Act serves a similar purpose—to
district court determined that because Florida has the most protect private employees who report or refuse to assist
significant relationship to the case,’ the trial court employers who violate laws enacted to protect the public.
correctly ruled that Florida law governs. It then held that However, the Act accomplishes this purpose by creating a
the “remedial” act should be applied to pending cases and new cause of action and thereby directly affects
remanded for a determination of whether Walsh’s substantive rights and liabilities. Such is the clear effect of
complaint states or can be amended to state a cause of the act because a common law tort for retaliatory
action under the new law. 629 So.2d at 149. discharge has never been recognized within this state. See
Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla.1990)
The district court acknowledged that as a general rule, in (Florida does not recognize common law tort for
the absence of clear legislative intent to the contrary, a retaliatory discharge); Smith v. Piezo Technology &
law affecting substantive rights is presumed to apply Professional Admrs., 427 So.2d 182, 184 (Fla.1983)
prospectively. See Alamo Rent-A-Car, Inc. v. Mancusi, (same); DeMarco v. Publix Super Markets, Inc., 384
632 So.2d 1352, 1358 (Fla.1994); State v. Lavazzoli, 434 So.2d 1253 (Fla.1980) (when term of employment is for
So.2d 321, 323 (Fla.1983); Florida Department of indefinite period, either party may terminate the
Revenue v. Zuckerman—Vernon Corp., 354 So.2d 353, 358 employment at any time and for any reason, without
(Fla.1977). However, looking to our recent decision in incurring liability).
Martin County y. Edenfield, 609 So.2d 27, 29 (Fla.1992),
the court determined that like the public sector The United States Supreme Court has recently refused to
Whistle—Blower’s Act,® the private sector act is give a similar enactment retroactive effect. In *425
“remedial.” Thus, an intent that the new law be applied to Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct.
pending cases should be presumed. 629 So.2d at 148. 1483, 128 L.Ed.2d 229 (1994), the Court was presented
with the question of whether certain provisions of the
"1 We have recognized that the presumption in favor of Civil Rights Act of 19917 apply to cases that were
prospective application generally does not apply to pending when the law was enacted. In holding that they
“remedial” legislation; rather, whenever possible, such do not, the Court recognized that the act was designed to
legislation should be applied to pending cases in order to serve a remedial purpose—“to respond to recent decisions
fully effectuate the legislation’s intended purpose. City of of the Supreme Court by expanding the scope of relevant
Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994)
10 IER Cases 84, 19 Fla. L. Weekly S592
civil rights statutes in order to provide adequate protection reach of statutes, and has the
to victims of discrimination.” 511 U.S. at ——, 114 S.Ct. additional virtue of giving
at 1489. However, because application of the 1991 Act legislators a predictable
would attach new legal consequences to events completed. background rule against which to
before its enactment, the Court refused to apply it to legislate.
pending cases, absent clear congressional intent favoring
retroactive application. Id. at —— - —, 114 S.Ct. at
1505-08.
511 U.S. at ——, 114 S.Ct. at 1501. We also agree that
the mere fact that “retroactive application of a new statute
1 The presumption against retroactive application of a
law that affects substantive rights, liabilities, or duties is a
would vindicate its purpose more fully ... is not sufficient
well established rule of statutory construction. See Young to rebut the presumption against retroactivity,” in a case
v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985); Walker & like this. Jd. at —————, 114 S.Ct. at 1507-08.
LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977);
Zuckerman—Vernon Corp., 354 So.2d at 358. As noted by There can be no question that application of the private
the United States Supreme Court, it is an appropriate
sector Whistle-Blower’s Act on these facts would give
default rule which comes into play in the absence of an
the employee a substantive right that he did not have at
express statement of legislative intent. the time he was discharged and would subject the
employer to new liability for its past conduct. Thus,
because we find no clear evidence of legislative intent to
rebut the presumption against such retroactive
Because it accords with widely application, we quash the decision under review and
held intuitions about how statutes remand for further proceedings consistent with this
ordinarily operate, a presumption opinion.*
against retroactivity will generally
coincide with legislative and public It is so ordered.
expectations. Requiring clear intent
assures that [the legislature] itself
has affirmatively considered the
potential unfairness of retroactive
application and determined that it is GRIMES, C.J., and OVERTON, SHAW, HARDING,
an acceptable price to pay for the WELLS and ANSTEAD, JJ., concur.
countervailing benefits. Such a
All Citations
requirement allocates to [the
legislature] responsibility for 645 So.2d 422, 10 IER Cases 84, 19 Fla. L. Weekly $592
fundamental policy judgments
concerning the proper temporal
Footnotes
1 Ch, 91-285, §§ 4-8, Laws of Fla., codified at §§ 448.101-.105, Fla.Stat. (1993).
Section 448.101(5), Florida Statutes (1993), defines “retaliatory personnel action” as “the discharge, suspension, or demotion by
an employer of an employee or any other adverse employment action taken by an employer against an employee in the terms
and conditions of employment.”
Section 448.102, Florida Statutes (1993), provides:
Prohibitions.—An employer may not take any retaliatory personnel action against an employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy,
or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless
the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and
has afforded the employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an
investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer.
(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law,
Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994)
10 IER Cases 84, 19 Fla. L. Weekly S592
rule, or regulation.
4 Section 448.103, Florida Statutes (1993), provides:
Employee’s remedy; relief—
(1)(a) An employee who has been the object of a retaliatory personnel action in violation of this act may institute a civil
action in a court of competent jurisdiction for relief as set forth in subsection (2) within 2 years after discovering that the
alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier.
(b) Any civil action authorized under this section may be brought in the county in which the alleged retaliatory personnel
action occurred, in which the complainant resides, or in which the employer has its principal place of business.
(c) An employee may not recover in any action brought pursuant to this subsection if he failed to notify the employer about
the illegal activity, policy, or practice as required by s. 448.102(1) or if the retaliatory personnel action was predicated upon
a ground other than the employee’s exercise of a right protected by this act.
(2) In any action brought pursuant to subsection (1), the court may order relief as follows:
(a) An injunction restraining continued violation of this act.
(b) Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent
position.
(c) Reinstatement of full fringe benefits and seniority rights.
(d) Compensation for lost wages, benefits, and other remuneration.
(e) Any other compensatory damages allowable at law.
Section 448.104, Florida Statutes (1993), provides for attorney’s fees to be awarded to the prevailing party.
The court determined that Florida has the most significant relationship because both parties are Florida residents and the actual
termination occurred in Florida. Although the complaint does not allege where the alleged wrongful termination occurred, Walsh
conceded before the district court that he was discharged in Florida.
Codified at section 112.3187, Florida Statutes (1993).
The relevant provisions, which are found in section 102 of the Act, create a right to recover compensatory and punitive damages
for certain violations of Title VII of the Civil Rights Act of 1964, provide for a jury trial if such damages are claimed, and have the
effect of creating a new cause of action for some forms of workplace discrimination that would not previously have been
actionable under Title VII. 114 S.Ct. at 1488-91.
Because we have construed the statute to apply prospectively and thus not to apply in this case, we need not address Arrow Air’s
due process claim. We also decline to address the other issues raised by the parties.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (1996)
21 Fla. L. Weekly S102
vindication could not serve to rebut presumption
against retroactive application, and no clear
KeyCite Yellow Flag - Negative Treatment evidence of legislative intent existed to rebut
Distinguished by de la Fuente v. Florida Ins. Guar. Ass*n, Fla., October presumption against retroactive application.
20, 2016 West’s F.S.A. § 627.727(6).
674 So.2d 106
Supreme Court of Florida.
18 Cases that cite this headnote
Diane S. HASSEN, et al., Petitioners,
v,
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, Respondent.
a Statutes
No. 85300. \=Effect on substantive rights
| Statutes
March 7, 1996. '=Imposition of liabilities, penalties, duties,
obligations, or disabilities
Rehearing Denied May 20, 1996.
In absence of express legislative statement to
contrary, enactment that affects substantive
Synopsis rights or creates new obligations or liabilities is
Insureds sought declaratory judgment that they were presumed to apply prospectively.
entitled to underinsured motorist (UIM) benefits after
settling with tort-feasor’s liability insurer without
19 Cases that cite this headnote
permission of UIM carrier. The Circuit Court, Pinellas
County, John S. Andrews, J., ruled in favor of insureds.
Carrier appealed. The District Court of Appeal, 650 So.2d
128, Lazzara, J., found subrogation statute to be
unconstitutional, reversed and remanded, and certified BI Constitutional Law
question as of great public importance. Review was '=Retroactivity in general
granted. The Supreme Court, Kogan, J., held that statute
requiring carrier to pay amount of offer from liability Supreme Court will not divine intent that new
insurer within 30 days in order to preserve subrogation law be applied to disturb existing contractual
claim was substantive amendment operating rights or duties when there is no express
prospectively, not retroactively. indication that such is legislature’s intent.
District Court of Appeal approved, and case remanded.
8 Cases that cite this headnote
West Headnotes (4)
41 Insurance
‘Regulation in General
a Insurance
‘Settlement of Tort Actions It is generally accepted that statute in effect at
time insurance contract is executed governs
Statute requiring underinsured motorist (UIM) substantive issues arising in connection with
carrier to pay amount of offer from liability contract.
insurer within 30 days in order to preserve
subrogation claim was substantive amendment
operating prospectively, not retroactively; 24 Cases that cite this headnote
although purpose of amendment likely would be
furthered by retroactive application, such
Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (1996)
21 Fla. L. Weekly S102
650 So.2d at 141-42. We have jurisdiction. Art. V, §
3(b)(1), (4), Fla. Const. For the reasons expressed below,
we decline to answer the certified question. Rather, we
*107 Application for Review of the Decision of the hold that section 627.727(6), Florida Statutes
District Court of
Preview
Filing # 123646288 E-Filed 03/24/2021 08:31:37 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MASSEY CONSTRUCTION GROUP, INC. CIVIL ACTION NO: 20-000315-CA a/alo MARGARET PUCKETT and MAX PUCKETT, Plaintiff, AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Defendant. / PLAINTIFF’S RESPONSE AND INCORPORATED LAW IN OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S REQUEST FOR ATTORNEY’S FEES Plaintiff, MASSEY CONSTRUCTION GROUP, INC. (“MCGI”), responds in opposition to Defendant’s, UNITED PROPERTY & CASUALTY INSURANCE (“AMERICAN INTEGRITY”), motion to strike MCGI’s request for attorney’s fees and says: I FACTUAL AND PROCEDURAL BACKGROUND. MCGI filed a complaint asserting a cause of action for breach of contract based on an insurance contract entered in 2016-2017 between AMERICAN INTEGRITY and _ the homeowners, Margret Puckett and Max Puckett. MCGI is a contractual assignee of the homeowner’s insurance post-loss money claim. In the complaint, MCGI asserted entitlement to attorney’s fees pursuant to the insurance contract, § 627.428, Fla. Stat. and § 626.9373, Fla. Stat. AMERICAN INTEGRITY asserts in its motion that § 627.428 and § 626.9373 have been superseded by § 627.7152 (10), Fla. Stat. (2019), which was enacted into law and made effective July 1, 2019, and then later was amended to bring Section (10) forward in time to be effective as of May 24, 2019. However, MCGI argues that based on the well-established and binding case law of the Florida Supreme Court, § 627.7152 affects a substantive contractual or statutory right related to an insurance contract and, therefore, cannot apply retroactively to an insurance contract incepted prior to the effective date of the new statute. IL. ANALYSIS. A. The Law Applicable To A Dispute Relating To An Insurance Contract Is The Law Existing At The Time The Parties Executed The Insurance Contract. Pursuant to the binding law of the Florida Supreme Court, the statutes in effect at the time an insurance contract is executed govern substantive contractual or statutory rights related to the insurance contract. In Hassen v. State Farm Mut. Aut. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996), the Florida Supreme Court held that “... the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’”” In Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010), the Florida Supreme Court reiterated the Hassen holding and further stating that “Under Florida law, this Court look[s] at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred...” Menendez, at 876 (emphasis supplied). In the instant case, the insurance contract at issue was executed in 2016-2017. Any assignment of the contractual rights of the policy are transfers of rights created by the executed insurance contract. The assignee of those rights receives all substantive contractual and statutory rights related to the insurance policy and any claims arising therefrom, including a claim for attorney’s fees incurred to enforce the claim. An assignment contract is merely a transfer of the pre-existing contractual and statutory rights related to the post-loss money claim. The statutes in effect at that time governing entitlement to an award of attorney’s fees relating to insurance contracts were § 627.48 and § 626.9373, Fla. Stat.; those statutes are the statutes applicable to those insurance policies, assignments of those policies and any attorney’s fees issues in this case arising from those policies and claims. B. Laws Affecting Entitlement To Attorney’s Fees Are Substantive Rather Than Procedural And Can Be Applied Prospectively Only. The laws in effect at the time of execution of the policy affect only substantive rights relating to the insurance contract. Therefore, the question is whether entitlement to attorney’s fees is a substantive right under Florida law. The answer is “Yes.” The Florida Supreme Court clearly and unequivocally established under Florida law that an entitlement to attorney’s fees by statute, and procedures relating to obtaining an entitlement to attorney’s fees, are substantive issues or rights. See Menendez; Moser v. Barron Chase Sec., Inc., 783 So. 2d 231, 236 (Fla. 2001); Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985); and L. Ross, Inc. v. R. W. Roberts Const. Co., Inc., 481 So. 2d 484, 485 (Fla. 1986). In Menendez, the Florida Supreme Court reiterated that attorney’s fees are substantive issues/rights and that statutes affecting the procedure or entitlement to attorney’s fees are substantive, saying: ..-[W]e have previously held that the statutory right to attorney’s fees is not a procedural right, but rather a substantive right. Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla. 2001). For example, in Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985), we held that section 768.56, Florida Statutes (1981), which permitted a reasonable attorney’s fee award to the party that prevailed in a malpractice cause of action, was a substantive statute in light of the prior obligations under the American Rule adopted in Florida, which required each party to pay its own fees unless otherwise directed by statute or an agreement between the parties. Jd. at 1153-54. In addition, our district courts have concluded that statutes that limit the ability to seek attorney’s fees are substantive in nature. Under the holdings of these cases, the 2001 statutory amendment cannot be applied retroactively because it allows an insurer to avoid an award of attorney’s fees, which constitutes a substantive change to the statute in effect at the time the insureds’ insurance policy was issued. Menendez, 35 So. 3d at 878-879. The Florida Supreme Court reasoned that the new 2001 version of the statute at issue as a whole was a substantive statute. The Menendez Court asserted that multiple provisions of the statute made the entire statute substantive saying the multiple provisions had four substantive effects as follows: In agreeing with the insureds that the statute cannot be applied retroactively, we conclude that the most problematic provisions of the statute are those which (1) impose a penalty, (2) implicate attorney’s fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action. Id, The Menendez Court found that the amended statute created new pre-suit procedures, created additional time for the insurer to avoid or to negate exposure to fees which did not exist at the time the insurance policy was executed and created a procedural barrier to filing suit. In the instant case, multiple provisions of § 627.7152 have the identical effects and suffer from the identical problems as the statute modifying the right to attorney’s fees in Menendez. Section 627.7152, Fla. Stat. (2019) sets up a new statutory scheme that directly affects entitlement to attorney’s fees. First, it imposes a penalty. The assignee cannot file suit immediately upon the insurer denying full payment of a claim or failing to adjust a claim within 90 days of notice of first notice of the claim. It creates new obligations for an assignee to obtain an award of attorney’s fees, namely the codified proposal for settlement provisions awarding attorney’s fees based on a percentage award calculation. § 627.7152 (4)(d)(e) and (10)(a)(b), Fla. Stat. (2019). It also subjects the assignee to a potential attorney fees shift based on the schedule for awarding attorney’s fees to one of the parties as set forth in section 10 of the statute. § 627.7152 (10(a)(b), Fla. Stat. (2019). Second, the new statute implicates attorney’s fees; it creates a new right for attorney’s fees in favor of the insurer under certain statutory conditions. Jd. Third, the new statute grants an insurer additional time to pay benefits. It creates a new substantive rather than procedural pre- suit notice procedure acting as a condition precedent to access to courts. § 627.7152 (9)(a)(b), Fla. Stat. (2019). See Menendez, 35 So. 3d at 879-880 (holding that a pre-suit notice requirement is substantive rather than procedural). Fourth, the new statute delays the insured’s/assignee’s right to institute a cause of action by imposing the condition precedent of the 10-day notice of intent prior to filing suit. Without question, § 627.7152 is a substantive statute that affects substantive rights pre- existing the insurance contract executed between the insurer and the insured. Cc Section 627.7152 Fails Florida’s Two-Pronged Test To Determine Whether A Law Affecting A Substantive Right Can Be Applied Retroactively. It is a well-established rule of statutory construction that a new statute or an amended statute is presumed not to apply retroactively. See Arrow Air, Inc. v. Walsh, 644 So. 2d 422, 425 (Fla. 1994) and Hassan, 674 So, 2d at 108. Florida uses a two-pronged test to determine whether an enacted law relating to prior-executed insurance contracts can be applied retroactively to affect a substantive right, as follows: (1) whether the Legislature intended the enactment to operate retroactively; and (2) whether the enactment would violate any constitutional principles. Menendez, 35 So. 3d at 877 citing Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). Section 627.7152 fails both prongs of the test. 1 Prong 1. Section 627.7152 fails the first prong of the test. Section 627.7152 does not clearly express an intent to apply retroactively. First, in fact, it expresses the intent to apply prospectively to agreements entered into after July 1, 2019. See § 627.7152 (13). The Courts Jurisdictional Bill, House Bill 337 at Section 23, the amendment to the newly-enacted statutory scheme, attempted to advance only a portion, but not all of the new statute, by advancing § 627.7152 (10) to be effective as to suits filed as of May 24, 2019, saying “...Section 23. Notwithstanding subsection (13) of section 627.7152, as created by [§ 627.7152], subsection (10) of that section is effective upon becoming a law.”). The Legislature only advanced the litigation/attorney fee portion of the statutory scheme to apply the new attorney fee provisions fo the date of filing of a suit rather than to the date of execution of the insurance contract and creation of the rights related thereto at the time the insurance contract was entered into between the insurer and the insured. This is impermissible as stated by the Menendez Court, which stated “Under Florida law, this Court look[s] at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred...”. Menendez, 35 So. 3d at 876. Even the new section advancing the effective date of a part of the statute does not express clearly an intent to operate retroactively to affect vested contractual rights. Consequently, by its express language and by operation of the well- established law applying to insurance contracts, § 627.7152 is inapplicable to insurance contracts retroactively as the Legislature failed to indicate that the statutory section was enacted expressly to apply retroactively to affect substantive rights. Therefore, § 627.7152 fails the first prong of the test. 2. Prong 2. Even if this Court somehow finds that the Legislature clearly expressed the intent for retroactive application in the wording of the statute, the Court, nonetheless, must deny retroactive application because the statute fails the second prong of the test. Even if the Legislature intends a newly-enacted law to apply retroactively and clearly expresses that intent, the Legislature may not enact “expo facto” laws affecting a vested contractual right or established substantive right by creating new obligations or imposing a new penalty. Menendez at 877-878. In Menendez, the Florida Supreme Court cited its prior rulings and reiterated the limits on the Legislature in enacting laws affecting certain rights as follows: However, even where the Legislature has expressly stated that a statute will have etroactive application, this Court will reject such _an application if the statute impairs a vested right, creates a new obligation, or imposes a new penalty. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla. 1995). Therefore, the central focus of this Court’s inquiry is whether retroactive application of the statute “attaches new legal consequences to events completed before its enactment.” Metro. Dade County, 737 So.2d at 499 (quoting Landgrafv. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). In order to answer this question, we compare section 627.736 as it existed at the time the insureds’ insurance policy was issued with the 2001 amendment. (Emphasis supplied). Menendez, 35 So. 3d at 877-878. The Court must determine whether the statues creates “...new legal consequences to acts before enactment.” See Memorial Hospital -West Volusia, Inc. v. News Journal Corporation, 784 So. 2d 438, 440-441 (Fla. 2001). Clearly as set forth above, the new statute attached new attorney fee obligations and bars to access to court to antecedent actions, claims arising under the prior policies in existence prior to enactment of the new statute. Additionally, as argued below the new statute affects pre-existing statutory and contractual rights of both the assignee and the insured. Finally, even if retroactive application of the statute may be in-line with or might vindicate the statute’s stated or intended purpose, vindication of a statutory purpose for enactment does not rebut the presumption against retroactive application of the statute against substantive rights. See Hassan, 674 So. 2d at 109-110. Section 627.7152 creates new procedures, creates new obligations and rights and affects established substantive statutory and contractual rights based on acts committed prior to enactment of the statute. Consequently, § 627.7152 cannot apply retroactively regardless of the Legislature’: intent. D. The Date of Execution of An Assignment Of Benefits Does Not Affect Whether The New Statute Can Apply Retroactively To An Insurance Policy Incepted Prior To Enactment Of The New Statute. AMERICAN INTEGRITY asserts that the statute is actually prospectively to be applied because the subject AOB was executed after July 1, 2019, the effective date of the new statute as to new assignments of benefits contracts. However, an assignment contract does not create a claim or any rights under the subject insurance policy. An assignment of a post-loss money claim is merely a transfer of rights created by the executed insurance policy and occurrence of a covered claim during the effective policy period. The assignee of an accrued post-loss claim under a policy receives all rights relating to enforcement and collection of the assigned post-loss money claim, including the right to collect attorney’s fees incurred in collection of the post-loss money claim. The rights are created by the insurance policy and the attorney fee statutes in existence at the time of inception of the policy. The assignment contract is merely a transfer of the pre-exiting contractual rights and statutory rights relating to a post-loss money claim under the policy. An assignment of benefits creates no claim, rights or obligations under the applicable insurance policy or the statutes in effect at the time of inception of the policy. The statutes governing entitlement to an award of attorney’s fees relating to an accrued claim for the instant case at bar were § 627.48 and § 626.9373, Fla. Stat. Therefore, those statutes are the statutes applicable to those insurance policies, assignments of those policies and any attorney’s fees issues in this case arising from the policy. Additionally, the new requirements for a new an AOB contract entered into after July 1, 2019 affect pre-existing substantive contractual and statutory rights of both the insured and the assignee, thereby prohibiting retroactive application of the new AOB requirements to policies incepted before the effective date of that portion of the statute. First, post-loss claims are freely assignable without the consent of the insurer. Bioscience West, Inc. v. Gulfstream Property and Cas. Ins. Co., 185 So. 3d 638, 641 (Fla. 2d DCA 2016) and Start to Finish Restoration, LLC v. Homeowners Choice..., 192 So. 3d 1275 (Fla. 2d DCA 2016). Additionally, the rights and obligations of an insurance policy do not automatically travel with an assignment of a post-loss claim. See Bioscience West, Inc., 185 So. 3d 638, 641. Section 627.7152 imposes conditions and specific contractual terms on an insured’s ability to transfer a post-loss money claim and relieves the insured of multiple obligations that it places on an assignee. Prior to the enactment of the provision of the new statute, an assignee that accepted assignment of an insurance claim did not assume the rights, obligations and duties of the insured under the policy unless the assignee specifically and voluntarily assumed those rights, duties and obligations. Shaw v. State Farm Casualty Co., 37 So. 3d 329, 332-334 (Fla. 5th DCA 2010); Citizens Property v. Ifergane, 114 So. 3d 190, 197 (Fla. 3d DCA 2012); Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469 (Fla 3rd DCA 2004). Now, an assignee must accept these conditions and the owner cannot freely contract to assign the claim without these additional obligations imposed on the assignee. Second, the new statute imposes on an assignee the requirement that it must take assignment of certain of the insured’s duties under the insured’s insurance policy. Specifically, the statute requires an assignee to conduct an examination under oath with the insurer at the insurer’s request. This imposes a statutory obligation and condition of assignment that was not a prior obligation of an assignee under established law. For instance, prior to enactment of the new statute, an assignee had no legal or contractual duty to participate in an EUO under the policy unless the assignee contractually assented to accept the duty of the insured. See Shaw v. State Farm Casualty Co., 37 So. 3d 329, 332-334 (Fla. Sth DCA 2010); Citizens Property v. Ifergane, 114 So. 3d 190, 197 (Fla. 3d DCA 2012); Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 469 (Fla 3rd DCA 2004). Third, the new assignment of benefits requirements deprives an assignee of multiple contractual and statutory rights that the assignee had prior to enactment of the statute. For instance, the assignee suffers the obligation to pay attorney fee awards and costs in the litigation and loses its right to enforce claims for its works against the owner through contract actions or lien actions. All of these rights were available to an assignee under the laws existing prior to enactment of the new statute. Therefore, regardless of whether this Court determines that § 627.7152 is substantive as a whole and, therefore, inapplicable in its entirety, the new assignment of benefits provisions when viewed as a distinct part of the statute are substantive and not applicable retroactively to the pre- existing claim and insurance contract in this case. il. CONCLUSION. Based on the argument above, this Court should deny AMERICAN INTEGRITY’s motion and rule that § 627.7152 and the new AOB requirements set forth thereunder affect substantive statutory and contractual rights and that it cannot be applied retroactively to the insurance contract, or the assignment of benefits contract relating to a claim under a policy incepted before enactment of the new statute. FROMANG & FINCH P.A. /s/ G. Steve Kerestes G. Steve Kerestes, Esquire FBN.: 26305 steve@fromangfinch.com Alex Finch, Esquire FBN.: 0994220 4767 New Broad Street Orlando, FL 32814 Tel: (407) 999-9739 Email: alex@fromangfinch.com 2nd Email: afinchlegal@gmail.com Mark A. Fromang, Esquire FBN.: 712620 Email: mark@fromangfinch.com 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of March, 2021 a true and correct copy of the foregoing was served on all counsel of record via Florida E-Portal e-service. FROMANG & FINCH P.A. /s/ G. Steve Kerestes G. Steve Kerestes, Esquire FBN.: 26305 steve@fromangfinch.com 4767 New Broad Street Orlando, FL 32814 Tel: (407) 999-9739 11 Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994) 10 IER Cases 84, 19 Fla. L. Weekly S592 KeyCite Yellow Flag - Negative Treatment a Statutes Not Followed as Dicta Hernandez v. Motorola Mobility, Inc., S.D.Fla., \“=Effect on substantive rights January 14, 2013 Statutes 645 So.2d 422 ‘Imposition of liabilities, penalties, duties, Supreme Court of Florida. obligations, or disabilities ARROW AIR, INC., Petitioner, Presumption exists against retroactive Michael WALSH, Respondent. application of law that affects substantive rights, liabilities, or duties. No. 83,014. | 32 Cases that cite this headnote Nov. 17, 1994. Synopsis Flight engineer filed wrongful discharge action against Attorneys and Law Firms airline. The Circuit Court, Dade County, Jon I. Gordon, J. dismissed for failure to state cause of action. Engineer *422 Kathleen M. O’Connor of Thornton, David, Murray, appealed. The District Court of Appeal, Ferguson, J., 629 Davis, Thornton & Sreenan, P.A., Miami, for petitioner. So.2d 144, reversed. Airline appealed. The Supreme Court, Kogan, J., held that private sector whistle-blowers Kelly B. Gelb of Krupnick, Campbell, Malone, Roselli, statute would not be applied retroactively, since it created Buser & Slama, Fort Lauderdale, and Barbara Green of new cause of action and affected substantive rights and Barbara Green, P.A., Coral Gables, for respondent. liabilities. Opinion Decision quashed; remanded. KOGAN, Justice. West Headnotes (2) We have for review Walsh v. Arrow Air, Inc., 629 So.2d 144 (Fla. 3d DCA 1993), because of conflict with various decisions from this Court addressing the retroactive a Labor and Employment application of new legislation. We have jurisdiction. Art. =Retroactive application V, § 3(b)(3), Fla. Const. Private sector whistle-blower’s statute would not *423 The private sector Whistle—-Blower’s Act,' which be applied retroactively; statute created new became effective June 7, 1991, prohibits private sector cause of action and affected substantive rights employers from taking retaliatory personnel action? and liabilities in light of fact that common-law against employees who “blow the whistle” on employers tort for retaliatory discharge had never been who violate the law or against employees who refuse to recognized in state, and mere fact that participate in violations of the law> and provides retroactive application of statute would vindicate employees a civil cause of action for such retaliation.‘ its purpose more fully was not sufficient to rebut This case presents the question of whether the Act should presumption against retroactivity. West’s F.S.A. be applied to impose liability for a termination that §§ 448.101-448.105. occurred prior to its effective date. This controversy began when Michael Walsh filed a 65 Cases that cite this headnote complaint against his former employer, Arrow Air, Inc., for wrongful discharge. Walsh is a Florida resident who Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994) 10 IER Cases 84, 19 Fla. L. Weekly S592 was employed as a flight engineer by Arrow Air, a Orlando v. Desjardins, 493 So.2d 1027 (Fla.1986). Florida corporation with its principal place of business in However, we have never classified a statute that Dade County, Florida. Walsh alleges that he was fired on accomplishes a remedial purpose by creating substantive May 15, 1989, in retaliation for delaying a flight new rights or imposing new legal burdens as the type of scheduled for departure from John F. Kennedy Airport in “remedial” legislation that should be presumptively New York and for reporting safety violations in applied in pending cases. See L. Ross, Inc. v. R.W. connection with the flight. According to the complaint, Roberts Const. Co., Inc., 481 So.2d 484 (Fla.1986) Walsh insisted on delaying the flight for five hours until (statute creating right to attorney’s fees could not be proper repairs to the plane’s hydraulic system could be applied retroactively); City of Lakeland v. Catinella, 129 made and then reported the problems. Walsh’s actions So.2d 133, 136 (only statutes that do not create new or were not well received by the maintenance director who take away vested rights are exempt from the general rule protested entry of the report in the log book. Walsh was against retrospective application.) Our decision in Martin fired approximately three weeks later. The action was County cannot support a contrary conclusion because we brought in a Florida court under New York Labor Law were not addressing the retroactive application of the section 740 (McKinney 1989). After determining that the statute at issue there. Rather, we were addressing whether action was governed by Florida Law and that a cause of under the 1987 version of section 112.3187 an action for retaliatory discharge was not recognized within employee's participation in the wrongdoing he disclosed this state, the trial court granted Arrow Air’s motion to could serve as an absolute shield from liability under the dismiss for failure to state a cause of action. statute. In that context, we determined that in light of its “remedial” purpose—“to encourage the elimination of Walsh appealed. The Third District Court of Appeal public corruption by protecting public employees who originally affirmed. However, while the court was ‘blow the whistle’ ”—the statute should be liberally considering Walsh’s motion *424 for rehearing, the construed in favor of granting access to the remedy. 609 private sector Whistle-Blower’s Act became effective. So.2d at 29. After asking for supplemental briefs on the applicability of the new law, the district court vacated its prior decision The district court is correct that the private sector and reversed the dismissal of Walsh’s complaint. The Whistle-Blower’s Act serves a similar purpose—to district court determined that because Florida has the most protect private employees who report or refuse to assist significant relationship to the case,’ the trial court employers who violate laws enacted to protect the public. correctly ruled that Florida law governs. It then held that However, the Act accomplishes this purpose by creating a the “remedial” act should be applied to pending cases and new cause of action and thereby directly affects remanded for a determination of whether Walsh’s substantive rights and liabilities. Such is the clear effect of complaint states or can be amended to state a cause of the act because a common law tort for retaliatory action under the new law. 629 So.2d at 149. discharge has never been recognized within this state. See Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla.1990) The district court acknowledged that as a general rule, in (Florida does not recognize common law tort for the absence of clear legislative intent to the contrary, a retaliatory discharge); Smith v. Piezo Technology & law affecting substantive rights is presumed to apply Professional Admrs., 427 So.2d 182, 184 (Fla.1983) prospectively. See Alamo Rent-A-Car, Inc. v. Mancusi, (same); DeMarco v. Publix Super Markets, Inc., 384 632 So.2d 1352, 1358 (Fla.1994); State v. Lavazzoli, 434 So.2d 1253 (Fla.1980) (when term of employment is for So.2d 321, 323 (Fla.1983); Florida Department of indefinite period, either party may terminate the Revenue v. Zuckerman—Vernon Corp., 354 So.2d 353, 358 employment at any time and for any reason, without (Fla.1977). However, looking to our recent decision in incurring liability). Martin County y. Edenfield, 609 So.2d 27, 29 (Fla.1992), the court determined that like the public sector The United States Supreme Court has recently refused to Whistle—Blower’s Act,® the private sector act is give a similar enactment retroactive effect. In *425 “remedial.” Thus, an intent that the new law be applied to Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct. pending cases should be presumed. 629 So.2d at 148. 1483, 128 L.Ed.2d 229 (1994), the Court was presented with the question of whether certain provisions of the "1 We have recognized that the presumption in favor of Civil Rights Act of 19917 apply to cases that were prospective application generally does not apply to pending when the law was enacted. In holding that they “remedial” legislation; rather, whenever possible, such do not, the Court recognized that the act was designed to legislation should be applied to pending cases in order to serve a remedial purpose—“to respond to recent decisions fully effectuate the legislation’s intended purpose. City of of the Supreme Court by expanding the scope of relevant Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994) 10 IER Cases 84, 19 Fla. L. Weekly S592 civil rights statutes in order to provide adequate protection reach of statutes, and has the to victims of discrimination.” 511 U.S. at ——, 114 S.Ct. additional virtue of giving at 1489. However, because application of the 1991 Act legislators a predictable would attach new legal consequences to events completed. background rule against which to before its enactment, the Court refused to apply it to legislate. pending cases, absent clear congressional intent favoring retroactive application. Id. at —— - —, 114 S.Ct. at 1505-08. 511 U.S. at ——, 114 S.Ct. at 1501. We also agree that the mere fact that “retroactive application of a new statute 1 The presumption against retroactive application of a law that affects substantive rights, liabilities, or duties is a would vindicate its purpose more fully ... is not sufficient well established rule of statutory construction. See Young to rebut the presumption against retroactivity,” in a case v. Altenhaus, 472 So.2d 1152, 1154 (Fla.1985); Walker & like this. Jd. at —————, 114 S.Ct. at 1507-08. LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977); Zuckerman—Vernon Corp., 354 So.2d at 358. As noted by There can be no question that application of the private the United States Supreme Court, it is an appropriate sector Whistle-Blower’s Act on these facts would give default rule which comes into play in the absence of an the employee a substantive right that he did not have at express statement of legislative intent. the time he was discharged and would subject the employer to new liability for its past conduct. Thus, because we find no clear evidence of legislative intent to rebut the presumption against such retroactive Because it accords with widely application, we quash the decision under review and held intuitions about how statutes remand for further proceedings consistent with this ordinarily operate, a presumption opinion.* against retroactivity will generally coincide with legislative and public It is so ordered. expectations. Requiring clear intent assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is GRIMES, C.J., and OVERTON, SHAW, HARDING, an acceptable price to pay for the WELLS and ANSTEAD, JJ., concur. countervailing benefits. Such a All Citations requirement allocates to [the legislature] responsibility for 645 So.2d 422, 10 IER Cases 84, 19 Fla. L. Weekly $592 fundamental policy judgments concerning the proper temporal Footnotes 1 Ch, 91-285, §§ 4-8, Laws of Fla., codified at §§ 448.101-.105, Fla.Stat. (1993). Section 448.101(5), Florida Statutes (1993), defines “retaliatory personnel action” as “the discharge, suspension, or demotion by an employer of an employee or any other adverse employment action taken by an employer against an employee in the terms and conditions of employment.” Section 448.102, Florida Statutes (1993), provides: Prohibitions.—An employer may not take any retaliatory personnel action against an employee because the employee has: (1) Disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation. However, this subsection does not apply unless the employee has, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and has afforded the employer a reasonable opportunity to correct the activity, policy, or practice. (2) Provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer. (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, Arrow Air, Inc. v. Walsh, 645 So.2d 422 (1994) 10 IER Cases 84, 19 Fla. L. Weekly S592 rule, or regulation. 4 Section 448.103, Florida Statutes (1993), provides: Employee’s remedy; relief— (1)(a) An employee who has been the object of a retaliatory personnel action in violation of this act may institute a civil action in a court of competent jurisdiction for relief as set forth in subsection (2) within 2 years after discovering that the alleged retaliatory personnel action was taken, or within 4 years after the personnel action was taken, whichever is earlier. (b) Any civil action authorized under this section may be brought in the county in which the alleged retaliatory personnel action occurred, in which the complainant resides, or in which the employer has its principal place of business. (c) An employee may not recover in any action brought pursuant to this subsection if he failed to notify the employer about the illegal activity, policy, or practice as required by s. 448.102(1) or if the retaliatory personnel action was predicated upon a ground other than the employee’s exercise of a right protected by this act. (2) In any action brought pursuant to subsection (1), the court may order relief as follows: (a) An injunction restraining continued violation of this act. (b) Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position. (c) Reinstatement of full fringe benefits and seniority rights. (d) Compensation for lost wages, benefits, and other remuneration. (e) Any other compensatory damages allowable at law. Section 448.104, Florida Statutes (1993), provides for attorney’s fees to be awarded to the prevailing party. The court determined that Florida has the most significant relationship because both parties are Florida residents and the actual termination occurred in Florida. Although the complaint does not allege where the alleged wrongful termination occurred, Walsh conceded before the district court that he was discharged in Florida. Codified at section 112.3187, Florida Statutes (1993). The relevant provisions, which are found in section 102 of the Act, create a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964, provide for a jury trial if such damages are claimed, and have the effect of creating a new cause of action for some forms of workplace discrimination that would not previously have been actionable under Title VII. 114 S.Ct. at 1488-91. Because we have construed the statute to apply prospectively and thus not to apply in this case, we need not address Arrow Air’s due process claim. We also decline to address the other issues raised by the parties. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (1996) 21 Fla. L. Weekly S102 vindication could not serve to rebut presumption against retroactive application, and no clear KeyCite Yellow Flag - Negative Treatment evidence of legislative intent existed to rebut Distinguished by de la Fuente v. Florida Ins. Guar. Ass*n, Fla., October presumption against retroactive application. 20, 2016 West’s F.S.A. § 627.727(6). 674 So.2d 106 Supreme Court of Florida. 18 Cases that cite this headnote Diane S. HASSEN, et al., Petitioners, v, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. a Statutes No. 85300. \=Effect on substantive rights | Statutes March 7, 1996. '=Imposition of liabilities, penalties, duties, obligations, or disabilities Rehearing Denied May 20, 1996. In absence of express legislative statement to contrary, enactment that affects substantive Synopsis rights or creates new obligations or liabilities is Insureds sought declaratory judgment that they were presumed to apply prospectively. entitled to underinsured motorist (UIM) benefits after settling with tort-feasor’s liability insurer without 19 Cases that cite this headnote permission of UIM carrier. The Circuit Court, Pinellas County, John S. Andrews, J., ruled in favor of insureds. Carrier appealed. The District Court of Appeal, 650 So.2d 128, Lazzara, J., found subrogation statute to be unconstitutional, reversed and remanded, and certified BI Constitutional Law question as of great public importance. Review was '=Retroactivity in general granted. The Supreme Court, Kogan, J., held that statute requiring carrier to pay amount of offer from liability Supreme Court will not divine intent that new insurer within 30 days in order to preserve subrogation law be applied to disturb existing contractual claim was substantive amendment operating rights or duties when there is no express prospectively, not retroactively. indication that such is legislature’s intent. District Court of Appeal approved, and case remanded. 8 Cases that cite this headnote West Headnotes (4) 41 Insurance ‘Regulation in General a Insurance ‘Settlement of Tort Actions It is generally accepted that statute in effect at time insurance contract is executed governs Statute requiring underinsured motorist (UIM) substantive issues arising in connection with carrier to pay amount of offer from liability contract. insurer within 30 days in order to preserve subrogation claim was substantive amendment operating prospectively, not retroactively; 24 Cases that cite this headnote although purpose of amendment likely would be furthered by retroactive application, such Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106 (1996) 21 Fla. L. Weekly S102 650 So.2d at 141-42. We have jurisdiction. Art. V, § 3(b)(1), (4), Fla. Const. For the reasons expressed below, we decline to answer the certified question. Rather, we *107 Application for Review of the Decision of the hold that section 627.727(6), Florida Statutes District Court of