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Filing # 140792105 E-Filed 12/21/2021 04:35:33 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO.: 2021-CA-002447-CI
JOSE L. ORTIZ &
ARI DUENAS
Plaintiffs,
VS.
UNIVERSAL PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT.
PURSUANT TO FLORIDA STATUTE §627.70152
The Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
(“Universal”), by and through its undersigned counsel, and pursuant to Florida Statute §627.70152,
hereby files this Motion to Dismiss the Complaint filed by Plaintiff, to Jose L. Ortiz and Ari
Duenas. Plaintiff's Complaint must be dismissed without prejudice for failure to strictly comply
with the pre-suit notice requirements in violation of Florida Statute §627.70152 (2021). In support
of this Motion, universal states:
FACTUAL BACKGROUND
1 This is a first-party homeowner property insurance dispute asserting a cause of
action for a Breach of Contract.
2. Universal issued policy number XXXX-XXXX-8057, to Jose L. Ortiz and Ari
Duenas, for the property located at 3850 Oak Pointe BLVD, Kissimmee, FL 34746, for the policy
period effective March 28, 2021, through March 28, 2022 (“the Policy”).
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
Page 2 of8
3 Plaintiff's Complaint pertains to an alleged property damage to the home that
occurred on or about April 11, 2021.
4 On October 25, 2021, the Plaintiff filed this first-party lawsuit.
5 Prior to filing the Complaint, Plaintiff failed to provide the Department of Financial
Services with written notice (“Notice”) at least ten business days prior to filing the lawsuit as
required by Fla. Stat. §627.70152.!
6 For the reasons set forth below, Universal moves to dismiss Plaintiffs Complaint
and without prejudice as a matter of law.
LEGAL ARGUMENT
This year, the Florida Legislature passed Senate Bill 76, “an act relating to insurance”,
creating, among other statutes, Florida Statute §627.70152. The bill was signed into law by
Governor Ron DeSantis and became effective on July 1, 2021. See statute attached. §627.70152,
“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.” Fla. Stat. Ann. §627.70152(1)(2021). Therefore,
§627.70152, will apply to all first-party homeowners property lawsuits filed by non-assignees after
July 1, 2021.
Section 627.70152 mandates that:
A court must dismiss without prejudice any claimant’s suit relating to a claim for
which a notice of intent to initiate litigation was not given as required by this section
or if such suit is commenced before the expiration of any time period provided
under subsection (4), as applicable.
1 Pursuant to Fla. Stat. ss.90.201 & 90.202(5), (12), & (13) Defendant’s requests this Court to take judicial notice of
the Department of Financial Services’ Property Insurance Intent to Initiate Litigation website search result for
Plaintiff's Claim No. Exhibit 1 - DFS Website.
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
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(bold emphasis added) Fla. Stat. Ann. §627.70152(5) (2021). A claimant is defined in the statute
“an insured who is filing suit under a residential or commercial property insurance policy.” Fla.
Stat. §627.70152(2)(b)(2021).
Such dismissal of a claimant’s or insured’s lawsuit is consistent with Florida common law.
“A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine
factual issues, and the allegations of the complaint must be taken as true, and all reasonable
inferences there from construed in favor of the nonmoving party.” Fla. Bar v. Greene, 926 So. 2d
1195, 1199 (Fla. 2006). An affirmative defense appearing on the face of the complaint may serve
as a basis to dismiss a complaint. Value Rent-A-Car, Inc. v. Grace, 794 So. 2d 619, 620 (Fla. 2d
DCA 2001); Llano Financing Group, LLC v. Yespy, 228 So. 3d 108, 112 (Fla. 4th DCA 2017). A
complaint that fails to allege compliance with a statutory condition precedent must be dismissed.
Lantana Ins. Ltd v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013). In the case at bar, Plaintiff is
an insured of the Policy and Plaintiff has filed a first-party homeowners insurance policy lawsuit
against Universal on October 21, 2021; therefore, §627.70152, pre-suit notice requirement is
applicable to this lawsuit.
Furthermore, §627.70152, mandates a pre-suit Notice requirements that the insureds must
comply with prior to filing a first-party homeowners insurance policy lawsuit against an insurer.
Section 627.70152, mandates when a notice of intent can be provided by the insured as follows:
(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 §627.70131. Notice to the
insurer must be provided by the department to the e-mail address designated by the
insurer under §624.422.
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
Page 4 of8
Fla. Stat. Ann. §627.70152(3)(a) (2021). CF Williams, D.D.S. v. Campagnola, 588 So. 2d 982
(Fla. 1991) (compliance with prefiling notice requirement was condition precedent to maintaining
action for malpractice); Ross v. Gore, 48 So.2d 412, 415 (Fla. 1950) (“‘When the language of the
statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion
for resorting to the rules of statutory interpretation and construction; the statute must be given its
plain and obvious meaning.’ A. R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157. The
statute provides, in clear and unmistakable terms, that ‘Before any civil action is brought for
publication, in a newspaper or periodical, of a libel, the plaintiff shall * * * serve notice in writing
on defendant * * *.’ It must be held, therefore, that the giving of notice in writing is a condition
precedent to suit.’”).
In the case at bar, Plaintiff did not provide the Department with “Notice” at least ten
business days prior to filing the lawsuit as required by Fla. Stat. §627.70152. As a result of
Plaintiff's failure to comply with the pre-suit requirements of §627.70152, this lawsuit must be
dismissed without prejudice.
CONCLUSION
Plaintiff's failure to comply with §627.70152, pre-suit notice requirement requires the
dismissal without prejudice of this lawsuit.
WHEREFORE, for the reasons asserted above, Defendant respectfully requests that this
Court grant this Motion and dismiss the Complaint and this lawsuit without prejudice as a matter
of law and grant any and all other relief this Court deems just and proper.
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
Page 5 of8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic
mail to: Eduardo Pimental, Esq., VARGAS GONZALEZ BALDWIN DELOMBARD, LLP.
(EPimentel@vargasgonzalez.com;) (ServiceS@VargasGonzalez.com ) on this 21“ day of
December 2021.
Attorneys for Defendant
Universal Property & Casualty Ins. Co.
491 Montgomery Place, Suite 2001
Altamonte Springs, Florida 32714
Telephone: 954-958-3319
Facsimile: 954-958-1262
By:_/s/J. Richard Young, Esq.
J. Richard Young, Esq.
Florida Bar No. 0563250
For Service of Court Documents only:
Primary: upciceservice0S@universalproperty.con
Secondary: sm061S@universalproperty.com
Tertiary: jy0223@universalproperty.com
*Please do not send any inquiries or scheduling matters to
upciceservice0S@universalproperty.com.
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
Page 6 of8
[West’s Florida Statutes Annotated
[Title XXXVIL. Insurance (Chapters 624-651) (Refs & Annos)
{Chapter 627, Insurance Rates and Contracts (Refs & Annos)
[Part X. Property Insurance Contracts (Refs & Annos)
West's F.S.A. § 627.70152
627.70152. Suits arising under a property insurance policy
Effective: July 1, 2021
Currentness
(1) 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.
(2) Definitions.--As used in this section, the term:
(a) “Amount obtained” means damages recovered, if any, but the term does not include any amount awarded for
attorney fees, costs, or interest.
(b) “Claimant” means an insured who is filing suit under a residential or commercial property insurance policy.
(c) “Disputed amount” means the difference between the claimants presuit settlement demand, not including attorney
fees and costs listed in the demand, and the insurer’s presuit settlement offer, not including attorney fees and costs, if
part of the offer.
(d) “Presuit settlement demand” means the demand made by the claimant in the written notice of intent to initiate
litigation as required by paragraph (3)(c). The demand must include the amount of reasonable and necessary attorney
fees and costs incurred by the claimant, to be calculated by multiplying the number of hours actually worked on the
claim by the claimant’s attorney as of the date of the notice by a reasonable hourly rate.
(ce) “Presuit settlement offer” means the offer made by the insurer in its written response to the notice as required by
subsection (3).
(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 the department to the e-mail
address designated by the insurer under s. 624.422. The notice must state with specificity all of the following
information:
1. That the notice is provided pursuant to this section.
2. The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage.
3. If provided by an attorney or other representative, that a copy of the notice was provided to the claimant.
4. If the notice is provided following a denial of coverage, an estimate of damages, if known.
5. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the
following:
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
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a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs.
b. The disputed amount.
Documentation to support the information provided in this paragraph may be provided along with the notice to the
insurer.
(b) A claimant must serve a notice of intent to initiate litigation within the time limits provided in s. 95.11. However,
the notice is not required if the suit is a counterclaim. Service of a notice tolls the time limits provided in s. 95.11 for
10 business days if such time limits will expire before the end of the 10-day notice period.
(4) Insurer duties.—-An insurer must have a procedure for the prompt investigation, review, and evaluation of the
dispute stated in the notice and must investigate each claim contained in the notice in accordance with the Florida
Insurance Code. An insurer must respond in writing within 10 business days after receiving the notice specified in
subsection (3). The insurer must provide the response to the claimant by e-mail if the insured has designated an e-mail
address in the notice.
(a) If an insurer is responding to a notice served on the insurer following a denial of coverage by the insurer, the
insurer must respond by:
1. Accepting coverage;
2. Continuing to deny coverage; or
3. Asserting the right to reinspect the damaged property. If the insurer responds by asserting the right to reinspect the
damaged property, it has 14 business days after the response asserting that right to reinspect the property and accept
or continue to deny coverage. The time limits provided in s, 95.11 are tolled during the reinspection period if such
time limits expire before the end of the reinspection period. If the insurer continues to deny coverage, the claimant
may file suit without providing additional notice to the insurer.
(b) If an insurer is responding to a notice provided to the insurer alleging an act or omission by the insurer other than
a denial of coverage, the insurer must respond by making a settlement offer or requiring the claimant to participate in
appraisal or another method of alternative dispute resolution. The time limits provided in s. 95.11 are tolled as long as
appraisal or other alternative dispute resolution is ongoing if such time limits expire during the appraisal process or
dispute resolution process. If the appraisal or alternative dispute resolution has not been concluded within 90 days
after the expiration of the 10-day notice of intent to initiate litigation specified in subsection (3), the claimant or
claimant’s attorney may immediately file suit without providing the insurer additional notice.
(5) Dismissal of suit.-A court must dismiss without prejudice any claimant’s suit relating to a claim for which a
notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the
expiration of any time period provided under subsection (4), as applicable.
(6) Admissibility of notice and response.--The notice provided pursuant to subsection (3) and, if applicable, the
documentation to support the information provided in the notice:
(a) Are admissible as evidence only in a proceeding regarding attorney fees.
(b) Do not limit the evidence of attorney fees or costs, damages, or loss which may be offered at trial.
(c) Do not relieve any obligation that an insured or assignee has to give notice under any other provision of law.
(7) Tolling.—-If a claim is not resolved during the presuit notice process and if the time limits provided in s. 95.11
expire in the 30 days following the conclusion of the presuit notice process, such time limits are tolled for 30 days.
(8) Attorney fees.--
(a) Ina suit arising under a residential or commercial property insurance policy not brought by an assignee, the amount
of reasonable attorney fees and costs under s. 626.9373{1) or s. 627.428(1) shall be calculated and awarded as follows:
Jose L. Ortiz & Ari Duenas v. UPCIC
Case No.: 2021—CA-002447-CI
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1. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable
attorney fees and costs, is less than 20 percent of the disputed amount, each party pays its own attorney fees and costs
and a claimant may not be awarded attorney fees under s. 626.9373(1) or s. 627.428(1).
2. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable
attorney fees and costs, is at least 20 percent but less than 50 percent of the disputed amount, the insurer pays the
claimant’s attorney fees and costs under s. 626.9373(1) or s. 627.428(1) equal to the percentage of the disputed amount
obtained times the total attorney fees and costs.
3. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable
attorney fees and costs, is at least 50 percent of the disputed amount, the insurer pays the claimant’s full attorney fees
and costs under s. 626.9373(1) or s. 627.428(1).
(b) Ina suit arising under a residential or commercial property insurance policy not brought by an assignee, if a court
dismisses a claimant’s suit pursuant to subsection (5), the court may not award to the claimant any incurred attorney
fees for services rendered before the dismissal of the suit.
Credits
Added by Laws 2021, c. 2021-77, § 12, eff. July 1, 2021
Preview
Filing # 140792105 E-Filed 12/21/2021 04:35:33 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2021-CA-002447-CI JOSE L. ORTIZ & ARI DUENAS Plaintiffs, VS. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT. PURSUANT TO FLORIDA STATUTE §627.70152 The Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY (“Universal”), by and through its undersigned counsel, and pursuant to Florida Statute §627.70152, hereby files this Motion to Dismiss the Complaint filed by Plaintiff, to Jose L. Ortiz and Ari Duenas. Plaintiff's Complaint must be dismissed without prejudice for failure to strictly comply with the pre-suit notice requirements in violation of Florida Statute §627.70152 (2021). In support of this Motion, universal states: FACTUAL BACKGROUND 1 This is a first-party homeowner property insurance dispute asserting a cause of action for a Breach of Contract. 2. Universal issued policy number XXXX-XXXX-8057, to Jose L. Ortiz and Ari Duenas, for the property located at 3850 Oak Pointe BLVD, Kissimmee, FL 34746, for the policy period effective March 28, 2021, through March 28, 2022 (“the Policy”). Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 2 of8 3 Plaintiff's Complaint pertains to an alleged property damage to the home that occurred on or about April 11, 2021. 4 On October 25, 2021, the Plaintiff filed this first-party lawsuit. 5 Prior to filing the Complaint, Plaintiff failed to provide the Department of Financial Services with written notice (“Notice”) at least ten business days prior to filing the lawsuit as required by Fla. Stat. §627.70152.! 6 For the reasons set forth below, Universal moves to dismiss Plaintiffs Complaint and without prejudice as a matter of law. LEGAL ARGUMENT This year, the Florida Legislature passed Senate Bill 76, “an act relating to insurance”, creating, among other statutes, Florida Statute §627.70152. The bill was signed into law by Governor Ron DeSantis and became effective on July 1, 2021. See statute attached. §627.70152, “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.” Fla. Stat. Ann. §627.70152(1)(2021). Therefore, §627.70152, will apply to all first-party homeowners property lawsuits filed by non-assignees after July 1, 2021. Section 627.70152 mandates that: A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable. 1 Pursuant to Fla. Stat. ss.90.201 & 90.202(5), (12), & (13) Defendant’s requests this Court to take judicial notice of the Department of Financial Services’ Property Insurance Intent to Initiate Litigation website search result for Plaintiff's Claim No. Exhibit 1 - DFS Website. Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 3 of8 (bold emphasis added) Fla. Stat. Ann. §627.70152(5) (2021). A claimant is defined in the statute “an insured who is filing suit under a residential or commercial property insurance policy.” Fla. Stat. §627.70152(2)(b)(2021). Such dismissal of a claimant’s or insured’s lawsuit is consistent with Florida common law. “A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true, and all reasonable inferences there from construed in favor of the nonmoving party.” Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006). An affirmative defense appearing on the face of the complaint may serve as a basis to dismiss a complaint. Value Rent-A-Car, Inc. v. Grace, 794 So. 2d 619, 620 (Fla. 2d DCA 2001); Llano Financing Group, LLC v. Yespy, 228 So. 3d 108, 112 (Fla. 4th DCA 2017). A complaint that fails to allege compliance with a statutory condition precedent must be dismissed. Lantana Ins. Ltd v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013). In the case at bar, Plaintiff is an insured of the Policy and Plaintiff has filed a first-party homeowners insurance policy lawsuit against Universal on October 21, 2021; therefore, §627.70152, pre-suit notice requirement is applicable to this lawsuit. Furthermore, §627.70152, mandates a pre-suit Notice requirements that the insureds must comply with prior to filing a first-party homeowners insurance policy lawsuit against an insurer. Section 627.70152, mandates when a notice of intent can be provided by the insured as follows: (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 §627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under §624.422. Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 4 of8 Fla. Stat. Ann. §627.70152(3)(a) (2021). CF Williams, D.D.S. v. Campagnola, 588 So. 2d 982 (Fla. 1991) (compliance with prefiling notice requirement was condition precedent to maintaining action for malpractice); Ross v. Gore, 48 So.2d 412, 415 (Fla. 1950) (“‘When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ A. R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157. The statute provides, in clear and unmistakable terms, that ‘Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall * * * serve notice in writing on defendant * * *.’ It must be held, therefore, that the giving of notice in writing is a condition precedent to suit.’”). In the case at bar, Plaintiff did not provide the Department with “Notice” at least ten business days prior to filing the lawsuit as required by Fla. Stat. §627.70152. As a result of Plaintiff's failure to comply with the pre-suit requirements of §627.70152, this lawsuit must be dismissed without prejudice. CONCLUSION Plaintiff's failure to comply with §627.70152, pre-suit notice requirement requires the dismissal without prejudice of this lawsuit. WHEREFORE, for the reasons asserted above, Defendant respectfully requests that this Court grant this Motion and dismiss the Complaint and this lawsuit without prejudice as a matter of law and grant any and all other relief this Court deems just and proper. Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 5 of8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic mail to: Eduardo Pimental, Esq., VARGAS GONZALEZ BALDWIN DELOMBARD, LLP. (EPimentel@vargasgonzalez.com;) (ServiceS@VargasGonzalez.com ) on this 21“ day of December 2021. Attorneys for Defendant Universal Property & Casualty Ins. Co. 491 Montgomery Place, Suite 2001 Altamonte Springs, Florida 32714 Telephone: 954-958-3319 Facsimile: 954-958-1262 By:_/s/J. Richard Young, Esq. J. Richard Young, Esq. Florida Bar No. 0563250 For Service of Court Documents only: Primary: upciceservice0S@universalproperty.con Secondary: sm061S@universalproperty.com Tertiary: jy0223@universalproperty.com *Please do not send any inquiries or scheduling matters to upciceservice0S@universalproperty.com. Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 6 of8 [West’s Florida Statutes Annotated [Title XXXVIL. Insurance (Chapters 624-651) (Refs & Annos) {Chapter 627, Insurance Rates and Contracts (Refs & Annos) [Part X. Property Insurance Contracts (Refs & Annos) West's F.S.A. § 627.70152 627.70152. Suits arising under a property insurance policy Effective: July 1, 2021 Currentness (1) 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. (2) Definitions.--As used in this section, the term: (a) “Amount obtained” means damages recovered, if any, but the term does not include any amount awarded for attorney fees, costs, or interest. (b) “Claimant” means an insured who is filing suit under a residential or commercial property insurance policy. (c) “Disputed amount” means the difference between the claimants presuit settlement demand, not including attorney fees and costs listed in the demand, and the insurer’s presuit settlement offer, not including attorney fees and costs, if part of the offer. (d) “Presuit settlement demand” means the demand made by the claimant in the written notice of intent to initiate litigation as required by paragraph (3)(c). The demand must include the amount of reasonable and necessary attorney fees and costs incurred by the claimant, to be calculated by multiplying the number of hours actually worked on the claim by the claimant’s attorney as of the date of the notice by a reasonable hourly rate. (ce) “Presuit settlement offer” means the offer made by the insurer in its written response to the notice as required by subsection (3). (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 the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information: 1. That the notice is provided pursuant to this section. 2. The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage. 3. If provided by an attorney or other representative, that a copy of the notice was provided to the claimant. 4. If the notice is provided following a denial of coverage, an estimate of damages, if known. 5. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the following: Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 7 of8 a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Documentation to support the information provided in this paragraph may be provided along with the notice to the insurer. (b) A claimant must serve a notice of intent to initiate litigation within the time limits provided in s. 95.11. However, the notice is not required if the suit is a counterclaim. Service of a notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period. (4) Insurer duties.—-An insurer must have a procedure for the prompt investigation, review, and evaluation of the dispute stated in the notice and must investigate each claim contained in the notice in accordance with the Florida Insurance Code. An insurer must respond in writing within 10 business days after receiving the notice specified in subsection (3). The insurer must provide the response to the claimant by e-mail if the insured has designated an e-mail address in the notice. (a) If an insurer is responding to a notice served on the insurer following a denial of coverage by the insurer, the insurer must respond by: 1. Accepting coverage; 2. Continuing to deny coverage; or 3. Asserting the right to reinspect the damaged property. If the insurer responds by asserting the right to reinspect the damaged property, it has 14 business days after the response asserting that right to reinspect the property and accept or continue to deny coverage. The time limits provided in s, 95.11 are tolled during the reinspection period if such time limits expire before the end of the reinspection period. If the insurer continues to deny coverage, the claimant may file suit without providing additional notice to the insurer. (b) If an insurer is responding to a notice provided to the insurer alleging an act or omission by the insurer other than a denial of coverage, the insurer must respond by making a settlement offer or requiring the claimant to participate in appraisal or another method of alternative dispute resolution. The time limits provided in s. 95.11 are tolled as long as appraisal or other alternative dispute resolution is ongoing if such time limits expire during the appraisal process or dispute resolution process. If the appraisal or alternative dispute resolution has not been concluded within 90 days after the expiration of the 10-day notice of intent to initiate litigation specified in subsection (3), the claimant or claimant’s attorney may immediately file suit without providing the insurer additional notice. (5) Dismissal of suit.-A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable. (6) Admissibility of notice and response.--The notice provided pursuant to subsection (3) and, if applicable, the documentation to support the information provided in the notice: (a) Are admissible as evidence only in a proceeding regarding attorney fees. (b) Do not limit the evidence of attorney fees or costs, damages, or loss which may be offered at trial. (c) Do not relieve any obligation that an insured or assignee has to give notice under any other provision of law. (7) Tolling.—-If a claim is not resolved during the presuit notice process and if the time limits provided in s. 95.11 expire in the 30 days following the conclusion of the presuit notice process, such time limits are tolled for 30 days. (8) Attorney fees.-- (a) Ina suit arising under a residential or commercial property insurance policy not brought by an assignee, the amount of reasonable attorney fees and costs under s. 626.9373{1) or s. 627.428(1) shall be calculated and awarded as follows: Jose L. Ortiz & Ari Duenas v. UPCIC Case No.: 2021—CA-002447-CI Page 8 of8 1. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable attorney fees and costs, is less than 20 percent of the disputed amount, each party pays its own attorney fees and costs and a claimant may not be awarded attorney fees under s. 626.9373(1) or s. 627.428(1). 2. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable attorney fees and costs, is at least 20 percent but less than 50 percent of the disputed amount, the insurer pays the claimant’s attorney fees and costs under s. 626.9373(1) or s. 627.428(1) equal to the percentage of the disputed amount obtained times the total attorney fees and costs. 3. If the difference between the amount obtained by the claimant and the presuit settlement offer, excluding reasonable attorney fees and costs, is at least 50 percent of the disputed amount, the insurer pays the claimant’s full attorney fees and costs under s. 626.9373(1) or s. 627.428(1). (b) Ina suit arising under a residential or commercial property insurance policy not brought by an assignee, if a court dismisses a claimant’s suit pursuant to subsection (5), the court may not award to the claimant any incurred attorney fees for services rendered before the dismissal of the suit. Credits Added by Laws 2021, c. 2021-77, § 12, eff. July 1, 2021