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Filing # 136591424 E-Filed 10/14/2021 04:28:33 PM
IN THE CIRCUIT COURT OF THE
FIFTH JUDICIAL CIRCUIT IN AND
FOR LAKE COUNTY, FLORIDA
CASE NO.: 2021-CA-001607
JOAN KOENIG,
Plaintiff,
vs.
UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT'S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
DEFENDANT, UNITED PROPERTY & CASUALTY INSURANCE COMPANY,
pursuant to the Florida Rules of Civil Procedure and by and through its undersigned
counsel, hereby moves to Dismiss the Complaint filed by Plaintiff, JOAN KOENIG,
pursuant to §627.70152(5), Florida Statutes (2021) and Fla. R. Civ. P. 1.140(b)(7), and as
grounds therefore states as follows:
1. On September 18, 2021, Plaintiff filed a lawsuit against UNITED PROPERTY &
CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), alleging Breach of
Contract. See Plaintiffs Complaint attached hereto as Exhibit “A.”
2. The basis of Plaintiff's action is an alleged breach of a homeowner's insurance
policy between the Plaintiff and the Defendant for the property located at 2970
Mediterranean Loop Tavares, Florida 32778 (hereinafter “Subject Property”).
3. Plaintiff’s Complaint pertains to an alleged loss/ damage to the Subject Property
sustained on or about May 21, 2020. The claim arises from alleged wind and/or hail
damage to the Subject Property.
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 10/15/2021 10:13:04 AM
4. Prior to filing the Complaint on September 18, 2021, Plaintiff failed to provide
the Department of Financial Services with written, statutorily required, Notice of Intent
to Initiate Litigation (hereinafter “Notice”) at least ten business days prior to filing the
suit as required by Florida Statute §627.70152(3)(a), et seq., Fla. Stat. (2021).
5. Defendant has not waived Plaintiff's duty to comply with the notice
requirements in §627.70152(3)(a).
6. On June 11, 2021, Governor Ron DeSantis signed SB 76 into law after it was
passed by both chambers of the Legislature. SB 76 became effective July 1, 2021. SB 76 is
a comprehensive bill relating to property insurance which, inter alia, created Florida
Statute §627.70152 addressed to suits arising under a property insurance policy like the
case at bar. Section 627.70152(3), et seq., expressly mandates that an insured comply with
pre-suit notice requirements, which include service of a Notice of Intent to Initiate
Litigation on the Department of Financial Services, as a condition precedent to filing suit.
In the event the insured fails to file the required Notice, the court must dismiss the suit
without prejudice. See §627.70152(5). Compliance with §627.70152(3)’s pre-suit
requirements is a straightforward and simple mandatory condition precedent to bring
any property insurance suit. See id.
7. Because Plaintiff has failed to file the required Notice, the Complaint fails to
satisfy the minimum pleading requirements as established by Florida law and
§627.70152(3). As such, Plaintiff has not perfected the right to sue. Therefore,
§627.70152(5) mandates that Plaintiff’s Complaint for Breach of Contract be dismissed in
its entirety.
8. Furthermore, Florida Rule of Civil Procedure 1.130 requires a Plaintiff to attach
all documents upon which an action can be brought. Here, Plaintiff has failed to file the
necessary Florida Department of Financial Services Form which is a condition precedent
to the subject action under §627.70152(3).
9. Based upon the following arguments, Florida law requires that the Plaintiff's
Complaint be dismissed for failure to comply with §627.70152’s requirement that Plaintiff
file a pre-suit Notice with the Florida Department of Financial Services.
MOTION TO DISMISS STANDARD
A motion to dismiss is designed to test the legal sufficiency of the complaint to state
a cause of action, not to determine the factual issues. The Florida Bar v. Greene, 926 So.
2d 1195, 1199 (Fla. 2006). Dismissal may be based on various grounds, including failure
of the complainant to abide by the applicable rules of procedure. Fla. Bar v. Rubin, 362
So. 2d 12 (Fla. 1978). A complaint that fails to allege compliance with a statutory condition
precedent must be dismissed. §627.70152(5); see also Lantana Ins., Ltd. v. Thornton, 118
So. 3d 250 (Fla. 3d DCA 2013). A ruling on a motion to dismiss based on a pure question
of law is subject to de novo review. The Fla. Bar v. Greene, 926 So. 2d at 1199.
ARGUMENT
Section 627.70152(3), et seq., Applies to Plaintiff's Suit for the Recovery of Property
Insurance Benefits.
When interpreting statutory law, legislative intent is the pole star that guides the
court’s analysis. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla.
2013). “Courts construe statutes to discern their meaning and to conform their rulings as
nearly as possible to the law as the legislature intended.” Pin-Pon Corp. v. Landmark
American Ins. Co. 500 F. Supp. 3d 1336, 1344 (S.D. Fla. 2020) (emphasis in original).
It is a well-established rule of statutory construction that a statute that affects
substantive rights is presumed to apply prospectively. Arrow Air, Inc. v. Walsh, 645 So.
2d 422, 425 (Fla. 1994); Pondella Hall for Hire, Inc. v. Lamar, 866 So. 2d 719, 722 (Fla. 5th
DCA 2004) (“In the absence of clear legislative intent, a law affecting substantive rights
is presumed to apply prospectively only while procedural or remedial statutes are
presumed to operate retrospectively.”). The presumption against retroactivity is a default
rule of construction that disappears when legislative intent is determined to support
retroactive application. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494,
500 (Fla. 1999).
When a statute is enacted after the issuance of an insurance policy that is in issue,
the operative inquiry is whether the statute applies retroactively. Menendez _v.
Progressive Exp. Ins. Co. 35 So. 3d 873, 877 (Fla. 2010).! For the court to determine if the
legislature intended a statute to apply retrospectively, the court must first ascertain
whether there is clear evidence of legislative intent to apply the statute retroactively.
Metro. Dade County, 737 So. 3d at 499 (citing Landgraf v. USI Film Prods., 511 U.S. 244,
280 (1994)). If such evidence exists, the court must next determine whether retroactive
application is constitutionally permissible. Id.
A Clear evidence exists that the legislature intended to apply
§627.70152(3) to all newly filed lawsuits, including those involving
contracts and losses that occurred prior to the law’s effective date.
“In order to determine legislative intent as to retroactivity, both the terms of the
statute and the purpose of the enactment must be considered.” Metro. Dade County,
737 So. 2d at 500. As a final matter, legislative history may be consulted. Id. (citing
United States v. Olin Corp., 107 F.3d 1506, 1513-4 (11th Cir. 1997).
1) Statutory language.
' The dispositive issue before the Menendez court was whether section 627.736(1 1), Florida Statutes (2001), could
be applied retroactively to an insurance policy issued prior to the enactment of the statute. Menendez, 35 So 3d at
876.
Examining the language and structure of the statute, there exists clear evidence
that the legislature intended that the statutory pre-suit Notice requirement apply to all
suits filed after §627.70152(3) became effective. Statutory analysis begins with the plain
meaning of the actual language of the statute because we discern legislative intent
primarily from the text of the statute. If statutory language 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, 159 (1931).
As an initial matter, the expressed legislative scope of the statute is:
(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.
§627.70152(1) (emphasis added).
Section 627.70152(2) provides the following definition:
(b) “Claimant” means an insured who is filing suit under a
residential or commercial property insurance policy.
§627.70152(2)(b). As used in this sentence, one who “is filing suit” indicates present or
continuing action by employing a present participle. See Webster’s New World College
Dictionary (4th Edition 2010), present participle in American English Grammar.
It follows that the statute provides:
(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 . ... Notice to the insurer must be provided by the department to
the email address designated by the insurer under s. 624.422.
§627.70152(3)(a) (emphasis added).
By its plain terms, “a claimant”---one who is filing suit---must provide written pre-
suit Notice to the Department of Financial Services, who provides notice to the insurer,
in all suits arising under a residential or commercial property insurance policy. The
legislature’s intent is made expressly clear that the statutory provision applies to all suits
a claimant is filing after the law becomes effective. Section 627.70152(3)(a) became
effective July 1, 2021. By making “filing” the operative event, the legislature expressed its
intent that the statute reaches backward to necessarily include pre-enactment contracts
and losses not previously asserted in litigation.
This language effectively rebuts the presumption in favor of prospective
application of the pre-suit Notice requirement and expresses the legislature’s intent that
the statute apply retroactively to all claims brought to suit after §627.70152(3)’s effective
date. To impose any other reading of the unambiguous language would require the court
to impermissibly rewrite the express statutory terms. Indeed, there is no savings clause
(excluding contracts and losses that preceded enactment of the statute) to expressly
remove claims arising from preexisting contracts and losses from the plainly stated text.
Nor is there an “unbending principle that the inclusion of an effective date in a statute
will always supersede the clearly expressed legislative intent that the statute be applied
retroactively.” Metro. Dade County, 737 So. 2d at 502.
The statute further makes clear, that a failure to comply with §627.70152(3)’s pre-
suit Notice requirement requires dismissal:
(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.
§627.70152(5).
A plain reading of §627.70152 demonstrates that the pre-suit Notice is an absolute
requirement designed to apply retroactively from the date of enactment, so as to include
any new lawsuit filings after July 1, 2021.? Because the express legislative intent requires
that the pre-suit Notice provision be applied retroactively, the dismissal provision applies
in this case and requires dismissal of Plaintiff's Complaint.
2) Statutory purpose.
The statutory purpose is consistent with and reinforces retroactive application of
the pre-suit Notice requirement. As described in the preamble, SB 76 creates §627.70152
as:
An act relating to insurance; . . providing applicability; providing
definitions; requiring a claimant to provide written notice to the
department before a suit is filed under an insurance policy; requiring
certain information to be included in the notice; requiring a claimant to
serve notice within specified time limits; requiring an insurer to provide a
response to the notice within a specified timeframe; providing for tolling of
time if appropriate; requiring an insurer to have a procedure for the prompt
? Fla. Stat. §627.70152 provides pre-suit Notice prior to filing suit. Therefore, retroactive application does not
burden or impair cases already in suit. Retroactive application only delineates the requirements for new lawsuits
after July 1, 2021, regardless of the date of the policy or the date of the claim.
investigation, review, and evaluation of a dispute stated in the notice and
to investigate each claim in the notice in accordance with the Florida
Insurance Code; requiring an insurer to provide a response to the notice
within a specified timeframe; requiring an insurer to provide a response in
a certain manner; requiring a court to dismiss without prejudice a
claimant's suit under certain circumstances; .
Ch. 2021-77, Laws of Florida (S.B. 76) at 1.
Thus, SB 76 is a comprehensive act relating to insurance that enacts §627.70152 for
the purpose of implementing an overall scheme that includes the efficient handling and
resolution of claims and avoidance of unnecessary litigation.
As with other statutory enactments involving pre-suit notice requirements, such
provisions give the defendant notice of the incident in order to allow an investigation and
to promote pre-suit settlement of claims. See, e.g., Kukral v. Mekras, 679 So. 2d 278 (Fla.
1996); Landers v. State Farm Fla. Ins. Co., 234 So. 3d 856, 859 (Fla. 5th DCA 2018);). Here,
the text demonstrates the legislature’s emphasis on the importance of notifying the
insurer of the exact amount for which it will be sued. See Rivera v. State Farm Mut. Auto.
Ins. Co., 317 So. 3d 197, 204 (Fla. 3d DCA 2021). Such disclosures discourage
“gamesmanship on the part of those who might benefit from confusion and delay.” MRI
Assocs. of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011).
Likewise, such insurance reform statutes serve to alleviate the high cost of insurance and
help protect all Floridians by promoting the long-term sustainability of Florida’s
insurance market. See Michael v. Medical Staffing Network, Inc., 947 So. 2d 614, 617 (Fla.
3d DCA 2007); see also Prof'l Staff of the Comm. on Rules, Fla. S. Bill Analysis & Fiscal
Impact Statement, S.B. 76, (Mar. 29, 2021) (final staff analysis of senate bill that enacted
§627.70152(5)), attached hereto as Exhibit “B.”
3) Legislative history.
As it pertains to legislative intent, the companion House Bill stated: “This section
applies exclusively to all suits arising under a residential or commercial property
insurance policy not brought by an assignee which is issued or renewed on or after July
1, 2021.” House Bill 305, Lines 1162-1165 (posted April 23, 2021), attached hereto as
Exhibit “C.”
The language limiting application of §627.70152 to policies issued or renewed after
July 1, 2021, was specifically excluded when House Bill 305 was laid to rest and the House
and Senate passed SB 76 which became enacted into law. The fact that the restrictive
language was removed in lieu of the expansive text applying the statute to all suits arising
under a property insurance policy is further clear evidence of legislative intent that the
statute be applied retroactively.
In examining the history, it is helpful to understand Senate process to fully
comprehend the significance of the statutory changes made by the Senate. If a Senator
desires to introduce a bill to change a law, he or she requests Senate Bill drafting to
prepare the language in the proper form. The Senator then reviews the draft language
and, if it is acceptable, formally files the bill. This Senator is called the ‘sponsor’ of the
bill. The President of the Senate then refers the bill to three committees, which take up
the bill for consideration in order. Here, the first committee of reference was the Senate
Banking and Insurance Committee chaired by Senator Boyd. The Senate Banking and
Insurance Committee took up SB 76 and addressed it in a public meeting. SB 76 was
considered in depth and subject to amendments. A bill can be amended an unlimited
number of times in committee. If the bills and amendments are adopted by the
Committee, a Senator can move for the creation of a ‘Committee Substitute’ (for the
original bill). If that motion is adopted, the original bill and all amendments will be
referred to the second committee of reference.
Here, the Senate Banking and Insurance Committee created a Committee
Substitute (“CS for SB 76”) and referred SB 76 to the second committee of reference. The
second committee to address SB 76 was the Senate Judiciary Committee chaired by
Senator Brandes. The Judiciary Committee repeated the consideration and amendment
process for SB 76 and referred its own CS for SB 76 to the third and final committee, the
Rules Committee. The Rules Committee referred a final CS for SB 76 to the entire Senate.
The Senate then passed SB 76. This legislative history is crucial to understanding the
legislative intent of Florida Statute § 627.70152 as created by SB 76. SB 76 was not passed
in a haphazard fashion. It was subject to numerous amendments and revisions. Every
change and every word that survived in the statute exists for an express purpose and
meaning. None of the language in SB 76 can be considered random or meaningless.
SB 76 expressly removed HB 305’s language that §627.70152 exclusively applies to
policies issued or renewed after July 1, 2021. This removal is a conclusive indication that
the Legislature intended for SB 76 to apply retroactively. Recall, the law as actually in
effect states: “(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 a surplus lines
insurer.” §627.70152(1).
In light of this legislative history, it is beyond reasonable dispute that the
Legislature intended Florida Statute §627.70152 to apply retroactively.
Id.
B. Retroactive application of §627.70152(3) does not violate
onstitutional principles.
A clear expression of retroactivity will be disregarded if the statute impairs vested
rights, creates new obligations, or imposes new penalties. Village of El Portal v. City of
Mia mi Shores, 362 So. 2d 275 (Fla. 1978). Having clearly established that the Legislature
intended Florida Statute §627.70152 to apply retroactively, the court must now consider
whether the statute violates any constitutional principles. Metro. Dade County, 737 So.
3d at 503. “Generally, due process considerations prevent the State from retroactively
abolishing vested rights.” Id.; see also Menendez, 35 So. 2d at 877. Retroactive application
of a statute is not invalid unless vested rights are adversely affected or destroyed when a
new obligation or duty is created or imposed. Metro. Dade County, 737 So. 3d at 503.
The focus is to determine “whether retroactive application of the statute ‘attaches
new legal consequences to events completed before its enactment’.” Menendez, 35 So. 2d
at 877. To make that determination in Menendez, the court made a comparison between
the new statute and preexisting law.’ Id. at 876. In determining that the statute could not
be applied retroactively, the court found the pre-suit notice requirement there operated
to “delay the insured’s right to institute a cause of action.” Id. at 878.
To determine whether vested rights are impaired in the instant case, the court
must preliminarily identify what is considered substantive in a first party property
insurance case. In Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1129 (Fla. 2000), the
Supreme Court of Florida reaffirmed that:
Ina “first-party” action against an insurance carrier founded upon section
624.155(1)(b), which affirmatively creates a company duty to its insured to
3 As described in Menendez, to answer the central question of whether retroactive application of the statute attached
new legal consequences, the court was required to compare the newly amended law to section 672.736 as it existed
at the time the insureds’ insurance policy was issued. 35 So 3d at 876.
act in good faith in its dealings under the policy, liability is based upon the
carrier's conduct in processing and paying a given claim. Thus, the action
is totally unlike an ordinary “insured vs. insurer” action brought only
under the policy, in which the carrier's claim file is deemed not producible
essentially because its contents are not relevant to the only issues involved,
those of coverage and damages ...
Id. at 1129 (quoting Fidelity & Cas. Ins. Co. v. Taylor, 525 So. 2d 908, 909-10 (Fla. 3d DCA
1987) (emphasis added).
Accordingly, the only two substantive issues in a first party property insurance
case are coverage and damages. Thus, the test regarding whether a substantive right is
implicated must be analyzed in light the effect the statutory change has on an insured’s
claims to coverage and damages. If these substantive rights are not violated, the insured’s
vested rights are not adversely affected or destroyed.
In the case at bar, §627.70152(3)'s pre-suit Notice requirement does not impair or
penalize a claimant's substantive positions on coverage and damages. It only establishes
a protocol for a simple and effortless Notice procedure that a Plaintiff must comply with
prior to filing suit. There is no postponing of a claimant's ability to bring a suit for
overdue benefits. Cf. Menendez, 35 So. 2d at 879. The Menendez Court held that the
statute at issue in that case substantively altered the insurer’s obligation to pay, because
it gave the insurer more time to meet its obligation; furthermore, it held that the statute
altered an insured’s right to sue under the contract because an action for a claim of
benefits could not be initiated until the additional time for payment expired. Id. Section
627.70152(3) does not provide the insurer additional time under the statute. It provides
the insurer with notice that the insured will initiate litigation and informs the insurer of
the amount that is in dispute. For a denied claim, the insurer essentially responds by
either: (1) accepting coverage; (2) continuing to deny coverage; or (3) asserting the right
to reinspect the damage property. §627.70152(4)(a)1-3, Fla. Stat. (2021). Regarding a
Notice asserting an act or omission other than a denial of coverage, an insurer may
respond by making a settlement offer or requiring the claimant to participate in appraisal
or another method of alternative dispute resolution. §627.70152(4)(b).
While the pre-suit Notice requirement applies retroactively to contracts and losses
in existence prior to the new law, no legal consequences are attached to the rights and
duties under the contract or the antecedent loss. The substantive claims continue without
a retroactive effect. The only effect is the fact that, by filing the suit after July 1, 2021, a
new procedure designed to facilitate settlements operates in tandem with the claimant’s
suit on the contract for property damages. “Filing” is simply the operative event that sets
this procedure in motion. Neither the pre-suit Notice nor the Response change the
insured’s positions as to coverage or damages. The Policy remains the same. The coverage
position is neither stronger, nor weaker. The amount of damages present and claimable
remain the same.
Section 627.70152(3) only introduces a simple common-sense procedure to put the
insurer on notice of a claim prior to suit. All the insured must do to comply is file a simple
Notice of Intent to Initiate Litigation providing the following information: (1) that the
notice is provided pursuant to the section, (2) the alleged acts or omissions. (3) if filed by
an attorney, copy of notice provided to the insured, (4) if coverage was denied, an
estimate of damages, only if known, and (5) if the acts or omissions are other than a denial
of coverage, a pre-suit settlement demand, and the disputed amount. See Fla. Stat. §
627.70152(3) (2021). These are the most basic facts of any claim that an insured would
necessarily possess if suit was imminent. If an insured wants to sue an insurer on certain
date, the insured may still sue the insurer on that very same date under §627.70152(3), as
long as the necessary pre-suit procedures are followed. Nor is there any delay imposed
regarding the time period to adjust a claim or any additional time afforded to pay
benefits. See §627.70131(5)(a), Florida Statutes (2021) (unchanged statutory language not
affected by §627.70152).
Rather than place any delay on an insured’s claim or right to suit, Fla. Stat.
§627.70152(3) actually aids the insured in expediting the insured’s claim. Section
627.70152(4) places an affirmative duty on the insurer to reconsider its claims decision,
and, pursuant to §627.70152(4)(b), make an offer to the insured or enter alternative
dispute resolution. These simple pre-suit processes do not delay the presentation of a
claim but expedite its procedural aspects and promote settlement of claims. They do not
impair the right to sue but provide a process to mitigate the need for suit by providing a
procedure for the insured to amicably resolve his or her action.
Ultimately, the new requirements are minimal and do not mandate the insured to
do anything substantively different. Section 627.70152(3) does not violate constitutional
rights, does not affect a claimant's right to sue or ability to recover damages, nor does it
change the insurance coverage provided by the policy.
The Florida Legislature enacted SB 76 with an express and unambiguous purpose.
SB 76 was written and enacted to provide a few simple steps to expedite the settlement
of legitimate insurance claims without tying up scarce judicial resources. It is no secret
that a tsunami of property insurance lawsuits has inundated Florida’s court system in
recent years, overwhelming judicial resources, and endangering Florida’s entire
insurance market. The National Association of Insurance Commissioners (“NAIC”)
recently produced a study‘ showing that Florida property insurance lawsuits make up
4 O’Conner, Amy. “NAIC Data: Florida Property Lawsuits Total 76% of Insurer Litigation in U.S. Insurance
Journal” (April 14, 2021). A copy of this article is attached hereto as Exhibit “D.”
76% of all insurance litigation in the U.S. SB 76 was passed for the clear public policy of
reducing the burden of insurance litigation by creating effortless pre-suit procedures to
facilitate settlement without burdening or delaying an insured’s right to suit.
When signing the bill, Governor DeSantis expressed this public policy in no
uncertain terms. He stated that, “I’m proud to sign SB 76 today to continue our mission
of insurance reform in Florida. Since my first days in office, I have been committed to
doing whatever it takes to reduce the burden of property insurance on Florida families.”
See “Governor DeSantis Signs Legislation to Continue Insurance Reform in Florida.”
Flgov.com (June 11, 2021), attached hereto as Exhibit “E.” This expresses the clear intent
of SB 76 to reform insurance law and provide immediate relief to Florida insureds and
insurers by providing simple processes to expedite settlement of claims.
SB 76, by its creation of §627.70152(3), enunciate a clear public policy to reduce the
burden that excessive property insurance litigation has placed upon Florida’s insureds,
insurers, judicial resources, and the entire insurance market. Applying §627.70152(3)
retroactively will allow its simple pre-suit procedures to facilitate settlement of insurance
claims. As demonstrated in the NAIC Report, the property insurance crisis did not begin
on July 1, 2021. Failing to apply §627.70152(3) would allow the tremendous amount of
litigation arising from pre-July 1, 2021, policies or claims to continue to burden judicial
resources for years to come. To affect the public policy in SB 76, §627.70152(3) must be
applied retroactively to any property insurance lawsuits filed after July 1, 2021.
CONCLUSION
Section 627.70152(3) was created by SB 76, which, during the drafting process,
expressly and specifically removed language that would have limited its application. As
signed into law, §627.70152(3) applies to all suits filed on or after July 1, 2021. This leaves
no room for dispute that the legislature intended §627.70152(3) to apply to all property
insurance actions filed after July 1, 2021. A careful review of §627.70152(3) reveals that it
imposes no substantive burdens on insureds. Rather, it provides simple pre-suit notice
procedures that expedite the settlement of insureds’ claims and presents them with an
opportunity to resolve their claim without the burden of litigation.
Section 627.70152(3) presents a clear public policy to lessen the burden of excessive
property insurance litigation in Florida. Given the number of property insurance actions
prior to the enactment date of July 1, 2021, (as demonstrated by the NAIC Report), there
is no way to meaningfully enact this public policy without applying §627.70152(3), as
intended by the Legislature.
As described above, §627.70152(3) applies to the subject Complaint. The Plaintiff
was required to file a Notice of Intent to Initiate Litigation with the Department of
Financial Services pursuant to §627.70152(3). Fla. R. Civ. P. 1.130 requires such a Notice
to be attached to the Complaint. Here, Plaintiff neither filed such a Notice with the
Department nor attached it to Plaintiff's Complaint. Pursuant to §627.70152(5), “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....” Accordingly,
the subject Complaint must be dismissed without prejudice.
WHEREFORE, as Plaintiff has failed to comply with the pleading requirements of
§627.70152, Defendant, UNITED PROPERTY & CASUALTY INSURANCE COMPANY,
respectfully requests that this Honorable Court grant this Motion, enter an Order
dismissing the subject Complaint without prejudice, enter an Order awarding fees and
costs to Defendant, and granting any further relief that the Court deems just, necessary,
and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 13, 2021, the foregoing was electronically
filed through the Florida Courts E-Filing Portal which will send a notice of electronic
filing to: Thomas Renda, Esq., Cohen Law Group, 350 North Lake Destiny Rd, Maitland,
FL 32751, trenda@itsaboutjustice.law, mercedes@itsaboutjustice.law.
s/ C. DeWitt Revels, III
C. DEWITT REVELS, III, ESQ.
Florida Bar No. 0073573
Celeste Murphy-Gerling
Florida Bar No. 1024815
Walker, Revels, Greninger & Netcher, PLLC
189 S. Orange Ave., Suite 1830
Orlando, Florida 32801
Tel: 407-789-1830
Fax: 321-251-2908
DRevels@wrgn-law.com
CMurphy-Gerling@wrgn-law.com
CDR-Service@wrgn-law.com
Counsel for Defendant, UNITED PROPERTY &
CASUALTY INSURANCE COMPANY
EXHIBIT A
Filing # 134854334 E-Filed 09/18/2021 02:43:05 PM
IN THE CIRCUIT COURT OF THE
FIFTH JUDICIAL CIRCUIT IN AND FOR
LAKE COUNTY, FLORIDA
CASE NUMBER:
JOAN KOENIG,
Plaintiff,
Vv.
UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
COMPLAINT & DEMAND FOR JURY TRIAL
COMES NOW, Plaintiff, Joan Koenig, by and through the undersigned counsel and sues
Defendant, United Property & Casualty Insurance Company, and alleges as follows:
1 This is an action for breach of contract with damages greater than Thirty
Thousand Dollars ($30,000.00), exclusive of interest, costs, and attorney’s fees.
2. At all material times hereto, Plaintiff, Joan Koenig (hereinafter “Plaintiff’), was
and is a Florida resident.
3 At all material times hereto, Defendant, United Property & Casualty Insurance
Company, was a corporation duly licensed to transact insurance business in the State of Florida.
Defendant does business, has offices, and/or maintained agents for the transaction of its
customary business in Lake County, Florida.
4 Jurisdiction and venue of this matter are proper in circuit Court for Lake County,
Florida.
5 Prior to May 21, 2020, Plaintiff sought and purchased homeowner’s insurance
from Defendant to cover their property located at 2970 Mediterranean Loop Tavares, Florida
32778, (hereinafter “Plaintiff's Property”). Said policy of insurance, which is believed to be
policy number UHV344952207 (hereinafter “Plaintiff's Policy”), was issued by Defendant to
Plaintiff to provide insurance coverage which included, but was not limited to, coverage afforded
to protect Plaintiff's Property against wind and/or hailstorm damage.
6 Plaintiffs Policy was in full force and effect as of May 21, 2020. A formal copy
of the Plaintiff's Policy is not currently in the possession of Plaintiff, but is well known to
Defendant, and has been requested by Plaintiff through a Request to Produce, which has been
served upon Defendant contemporaneously with this Complaint. See: Equity Premium, Inc. v.
Twin City Fire Ins. Co.,956 So.2d 1257 (Fla 4th DCA 2007); Amiker v. Mid-Century Ins.
Co.,398 So.2d 974 (Fla Ist DCA 1981); Parkway General Hospital, Inc. y. Allstate Ins. Co., 393
So.2d 1171 (Fla. 3d DCA 1981) and Sasche v. Tampa Music Co., 262 So.2d 17( Fla. 2d DCA
1972).
7 On or about May 21, 2020, Plaintiff's Property was damaged by a wind and/or
hailstorm event. Said wind and/or hailstorm event was covered under Plaintiff’s Policy.
8 This is an action related to Defendant’s breach of contract for failure to fully
indemnify Plaintiff from loss.
COUNT I - BREACH OF CONTRACT AGAINST DEFENDANT
COMES NOW, Plaintiff, Joan Koenig, by and through the undersigned counsel and sues
Defendant, United Property & Casualty Insurance Company, and alleges as follows:
9 Plaintiff re-alleges paragraphs 1 through 8 above and incorporates the same by
reference herein.
10. Plaintiff is a named insured under Plaintiffs Policy, which was in full force and
effect all times material to this Complaint.
11. Plaintiff has complied with all conditions precedent to this lawsuit and to entitle
Plaintiff to recover under Plaintiff's Policy, or any such conditions have been waived.
12. Despite demand for payment, Defendant has failed or refused fully indemnify
Plaintiff from the amount of loss.
13. Defendant’s refusal to reimburse Plaintiff adequately for damages, and otherwise
make Plaintiff whole, constitutes a breach of contract.
14. Plaintiff has been damaged as a result of Defendant’s breach in the form of
insurance proceeds which have not been paid, interest, costs, and attorney’s fees.
15. Plaintiff has been and remains fully prepared to comply with all of the Policy’s
obligations.
16. As a result of Defendant’s breach of contract, it has become necessary that
Plaintiff retain the services of the undersigned attorneys pursuant to Sections 627.428, 626.9373,
57.041, 57.104, Florida Statutes. Plaintiff is obligated to pay a reasonable fee for the undersigned
attorney’s services in bringing this action, plus necessary costs.
17. Plaintiff is entitled to recover attorney’s fees and costs under Sections 627.428,
626.9373, 57.041, 57.104, Florida Statutes.
WHEREFORE, Plaintiff, Joan Koenig, by and through the undersigned counsel,
demands judgment against Defendant, United Property & Casualty Insurance Company, for all
damages with interest, costs, attorney fees pursuant to Sections 627.428, 626.9373, 57.041,
57.104, Florida Statutes, and for all other remedies the Court sees fit to grant, and Plaintiff
demands trial by jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document will be served on
Defendant along with the Summons in this action.
Date: September 18, 2021
/s/Thomas Renda
COHEN LAW GROUP
Thomas Renda, Esq.
Florida Bar Number: 1022420
FOR THE FIRM
350 North Lake Destiny Road
Maitland, Florida 32751
Phone: (407) 478-4878
Fax: (407) 478-0204
Primary: trenda@itsaboutjustice.law
Secondary: mercedes@itsaboutjustice.law
EXHIBIT B
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An act relating to insurance; creating s. 489.147,
F.S.; providing definitions; prohibiting certain
practices by contractors; providing for disciplinary
proceedings; providing that the acts of any persons on
behalf of a contractor are considered the acts of a
contractor; providing that certain acts constitute
unlicensed contracting; providing penalties;
prohibiting a contractor from executing a contract
10 with a residential property owner for a roofing repair
11 or replacement unless certain notice is included;
12 authorizing the residential property owner to void the
13 contract within a specified timeframe when such notice
14 is not included; amending s. 624.424, F.S.;7 requiring
15 property insurers, effective a certain date, to
16 include certain data regarding closed claims in their
17 annual reports to the Office of Insurance Regulation;
18 requiring specified insurers to provide the office
19 with certain information under certain circumstances;
20 requiring the office to consider certain costs in
21 determining whether payments made by an insurer to an
22 affiliate are fair and reasonable; amending s.
23 626.7451, F.S.; requiring managing general agents to
24 enter into specified contracts with insurers even when
25 the managing general agents control, or are controlled
26 by, the insurers; amending s. 626.7452, F.S.;7
27 providing that a managing general agent may be
28 examined as if it were the insurer even if the
29 managing general agent solely represents a single
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30 domestic insurer; amending s. 626.854, F.S.;7
31 prohibiting certain acts by specified licensed
32 contractors and their subcontractors; providing
33 construction; prohibiting certain acts by a public
34 adjuster, public adjuster apprentice, and certain
35 other persons; providing that certain acts constitute
36 unlicensed practice of public adjusting; providing
37 penalties; amending s. 626.9373, F.S.; providing for
38 the award of reasonable attorney fees as provided by
39 specified provisions of law under certain
40 circumstances; amending s. 627.351, F.S.; revising a
4l procedure that the plan of operation of Citizens
42 Property Insurance Corporation must provide; requiring
43 the corporation to include the costs of catastrophe
44 reinsurance to its projected 100-year probable maximum
45 loss in its rate calculations even if the corporation
46 does not purchase such reinsurance; deleting obsolete
47 language relating to the corporation’s rate filings;
48 requiring the corporation to annually implement a rate
49 increase that does not exceed a certain percent for
50 specified years; requiring the corporation’s budget
51 allocations for salaries for the corporation’s
52 employees, all employee raises exceeding 10 percent,
53 and an employee compensation plan for the corporation
54 to be approved by the corporation’s board of
55 governors; amending s. 627.3518, F.S.;7 conforming a
56 cross-reference; amending s. 627.428, F.S.; providing
57 for the award of reasonable attorney fees as provided
58 by specified provisions of law under certain
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59 circumstances; amending s. 627.70132, F.S.; revising
60 the definitions of the terms “reopened claim” and
61 “supplemental claim” to include all perils; providing
62 that claims and reopened
Preview
Filing # 136591424 E-Filed 10/14/2021 04:28:33 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA CASE NO.: 2021-CA-001607 JOAN KOENIG, Plaintiff, vs. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT'S MOTION TO DISMISS PLAINTIFF’S COMPLAINT DEFENDANT, UNITED PROPERTY & CASUALTY INSURANCE COMPANY, pursuant to the Florida Rules of Civil Procedure and by and through its undersigned counsel, hereby moves to Dismiss the Complaint filed by Plaintiff, JOAN KOENIG, pursuant to §627.70152(5), Florida Statutes (2021) and Fla. R. Civ. P. 1.140(b)(7), and as grounds therefore states as follows: 1. On September 18, 2021, Plaintiff filed a lawsuit against UNITED PROPERTY & CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), alleging Breach of Contract. See Plaintiffs Complaint attached hereto as Exhibit “A.” 2. The basis of Plaintiff's action is an alleged breach of a homeowner's insurance policy between the Plaintiff and the Defendant for the property located at 2970 Mediterranean Loop Tavares, Florida 32778 (hereinafter “Subject Property”). 3. Plaintiff’s Complaint pertains to an alleged loss/ damage to the Subject Property sustained on or about May 21, 2020. The claim arises from alleged wind and/or hail damage to the Subject Property. FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 10/15/2021 10:13:04 AM 4. Prior to filing the Complaint on September 18, 2021, Plaintiff failed to provide the Department of Financial Services with written, statutorily required, Notice of Intent to Initiate Litigation (hereinafter “Notice”) at least ten business days prior to filing the suit as required by Florida Statute §627.70152(3)(a), et seq., Fla. Stat. (2021). 5. Defendant has not waived Plaintiff's duty to comply with the notice requirements in §627.70152(3)(a). 6. On June 11, 2021, Governor Ron DeSantis signed SB 76 into law after it was passed by both chambers of the Legislature. SB 76 became effective July 1, 2021. SB 76 is a comprehensive bill relating to property insurance which, inter alia, created Florida Statute §627.70152 addressed to suits arising under a property insurance policy like the case at bar. Section 627.70152(3), et seq., expressly mandates that an insured comply with pre-suit notice requirements, which include service of a Notice of Intent to Initiate Litigation on the Department of Financial Services, as a condition precedent to filing suit. In the event the insured fails to file the required Notice, the court must dismiss the suit without prejudice. See §627.70152(5). Compliance with §627.70152(3)’s pre-suit requirements is a straightforward and simple mandatory condition precedent to bring any property insurance suit. See id. 7. Because Plaintiff has failed to file the required Notice, the Complaint fails to satisfy the minimum pleading requirements as established by Florida law and §627.70152(3). As such, Plaintiff has not perfected the right to sue. Therefore, §627.70152(5) mandates that Plaintiff’s Complaint for Breach of Contract be dismissed in its entirety. 8. Furthermore, Florida Rule of Civil Procedure 1.130 requires a Plaintiff to attach all documents upon which an action can be brought. Here, Plaintiff has failed to file the necessary Florida Department of Financial Services Form which is a condition precedent to the subject action under §627.70152(3). 9. Based upon the following arguments, Florida law requires that the Plaintiff's Complaint be dismissed for failure to comply with §627.70152’s requirement that Plaintiff file a pre-suit Notice with the Florida Department of Financial Services. MOTION TO DISMISS STANDARD A motion to dismiss is designed to test the legal sufficiency of the complaint to state a cause of action, not to determine the factual issues. The Florida Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006). Dismissal may be based on various grounds, including failure of the complainant to abide by the applicable rules of procedure. Fla. Bar v. Rubin, 362 So. 2d 12 (Fla. 1978). A complaint that fails to allege compliance with a statutory condition precedent must be dismissed. §627.70152(5); see also Lantana Ins., Ltd. v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013). A ruling on a motion to dismiss based on a pure question of law is subject to de novo review. The Fla. Bar v. Greene, 926 So. 2d at 1199. ARGUMENT Section 627.70152(3), et seq., Applies to Plaintiff's Suit for the Recovery of Property Insurance Benefits. When interpreting statutory law, legislative intent is the pole star that guides the court’s analysis. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013). “Courts construe statutes to discern their meaning and to conform their rulings as nearly as possible to the law as the legislature intended.” Pin-Pon Corp. v. Landmark American Ins. Co. 500 F. Supp. 3d 1336, 1344 (S.D. Fla. 2020) (emphasis in original). It is a well-established rule of statutory construction that a statute that affects substantive rights is presumed to apply prospectively. Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425 (Fla. 1994); Pondella Hall for Hire, Inc. v. Lamar, 866 So. 2d 719, 722 (Fla. 5th DCA 2004) (“In the absence of clear legislative intent, a law affecting substantive rights is presumed to apply prospectively only while procedural or remedial statutes are presumed to operate retrospectively.”). The presumption against retroactivity is a default rule of construction that disappears when legislative intent is determined to support retroactive application. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 500 (Fla. 1999). When a statute is enacted after the issuance of an insurance policy that is in issue, the operative inquiry is whether the statute applies retroactively. Menendez _v. Progressive Exp. Ins. Co. 35 So. 3d 873, 877 (Fla. 2010).! For the court to determine if the legislature intended a statute to apply retrospectively, the court must first ascertain whether there is clear evidence of legislative intent to apply the statute retroactively. Metro. Dade County, 737 So. 3d at 499 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). If such evidence exists, the court must next determine whether retroactive application is constitutionally permissible. Id. A Clear evidence exists that the legislature intended to apply §627.70152(3) to all newly filed lawsuits, including those involving contracts and losses that occurred prior to the law’s effective date. “In order to determine legislative intent as to retroactivity, both the terms of the statute and the purpose of the enactment must be considered.” Metro. Dade County, 737 So. 2d at 500. As a final matter, legislative history may be consulted. Id. (citing United States v. Olin Corp., 107 F.3d 1506, 1513-4 (11th Cir. 1997). 1) Statutory language. ' The dispositive issue before the Menendez court was whether section 627.736(1 1), Florida Statutes (2001), could be applied retroactively to an insurance policy issued prior to the enactment of the statute. Menendez, 35 So 3d at 876. Examining the language and structure of the statute, there exists clear evidence that the legislature intended that the statutory pre-suit Notice requirement apply to all suits filed after §627.70152(3) became effective. Statutory analysis begins with the plain meaning of the actual language of the statute because we discern legislative intent primarily from the text of the statute. If statutory language 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, 159 (1931). As an initial matter, the expressed legislative scope of the statute is: (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. §627.70152(1) (emphasis added). Section 627.70152(2) provides the following definition: (b) “Claimant” means an insured who is filing suit under a residential or commercial property insurance policy. §627.70152(2)(b). As used in this sentence, one who “is filing suit” indicates present or continuing action by employing a present participle. See Webster’s New World College Dictionary (4th Edition 2010), present participle in American English Grammar. It follows that the statute provides: (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 . ... Notice to the insurer must be provided by the department to the email address designated by the insurer under s. 624.422. §627.70152(3)(a) (emphasis added). By its plain terms, “a claimant”---one who is filing suit---must provide written pre- suit Notice to the Department of Financial Services, who provides notice to the insurer, in all suits arising under a residential or commercial property insurance policy. The legislature’s intent is made expressly clear that the statutory provision applies to all suits a claimant is filing after the law becomes effective. Section 627.70152(3)(a) became effective July 1, 2021. By making “filing” the operative event, the legislature expressed its intent that the statute reaches backward to necessarily include pre-enactment contracts and losses not previously asserted in litigation. This language effectively rebuts the presumption in favor of prospective application of the pre-suit Notice requirement and expresses the legislature’s intent that the statute apply retroactively to all claims brought to suit after §627.70152(3)’s effective date. To impose any other reading of the unambiguous language would require the court to impermissibly rewrite the express statutory terms. Indeed, there is no savings clause (excluding contracts and losses that preceded enactment of the statute) to expressly remove claims arising from preexisting contracts and losses from the plainly stated text. Nor is there an “unbending principle that the inclusion of an effective date in a statute will always supersede the clearly expressed legislative intent that the statute be applied retroactively.” Metro. Dade County, 737 So. 2d at 502. The statute further makes clear, that a failure to comply with §627.70152(3)’s pre- suit Notice requirement requires dismissal: (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. §627.70152(5). A plain reading of §627.70152 demonstrates that the pre-suit Notice is an absolute requirement designed to apply retroactively from the date of enactment, so as to include any new lawsuit filings after July 1, 2021.? Because the express legislative intent requires that the pre-suit Notice provision be applied retroactively, the dismissal provision applies in this case and requires dismissal of Plaintiff's Complaint. 2) Statutory purpose. The statutory purpose is consistent with and reinforces retroactive application of the pre-suit Notice requirement. As described in the preamble, SB 76 creates §627.70152 as: An act relating to insurance; . . providing applicability; providing definitions; requiring a claimant to provide written notice to the department before a suit is filed under an insurance policy; requiring certain information to be included in the notice; requiring a claimant to serve notice within specified time limits; requiring an insurer to provide a response to the notice within a specified timeframe; providing for tolling of time if appropriate; requiring an insurer to have a procedure for the prompt ? Fla. Stat. §627.70152 provides pre-suit Notice prior to filing suit. Therefore, retroactive application does not burden or impair cases already in suit. Retroactive application only delineates the requirements for new lawsuits after July 1, 2021, regardless of the date of the policy or the date of the claim. investigation, review, and evaluation of a dispute stated in the notice and to investigate each claim in the notice in accordance with the Florida Insurance Code; requiring an insurer to provide a response to the notice within a specified timeframe; requiring an insurer to provide a response in a certain manner; requiring a court to dismiss without prejudice a claimant's suit under certain circumstances; . Ch. 2021-77, Laws of Florida (S.B. 76) at 1. Thus, SB 76 is a comprehensive act relating to insurance that enacts §627.70152 for the purpose of implementing an overall scheme that includes the efficient handling and resolution of claims and avoidance of unnecessary litigation. As with other statutory enactments involving pre-suit notice requirements, such provisions give the defendant notice of the incident in order to allow an investigation and to promote pre-suit settlement of claims. See, e.g., Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996); Landers v. State Farm Fla. Ins. Co., 234 So. 3d 856, 859 (Fla. 5th DCA 2018);). Here, the text demonstrates the legislature’s emphasis on the importance of notifying the insurer of the exact amount for which it will be sued. See Rivera v. State Farm Mut. Auto. Ins. Co., 317 So. 3d 197, 204 (Fla. 3d DCA 2021). Such disclosures discourage “gamesmanship on the part of those who might benefit from confusion and delay.” MRI Assocs. of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011). Likewise, such insurance reform statutes serve to alleviate the high cost of insurance and help protect all Floridians by promoting the long-term sustainability of Florida’s insurance market. See Michael v. Medical Staffing Network, Inc., 947 So. 2d 614, 617 (Fla. 3d DCA 2007); see also Prof'l Staff of the Comm. on Rules, Fla. S. Bill Analysis & Fiscal Impact Statement, S.B. 76, (Mar. 29, 2021) (final staff analysis of senate bill that enacted §627.70152(5)), attached hereto as Exhibit “B.” 3) Legislative history. As it pertains to legislative intent, the companion House Bill stated: “This section applies exclusively to all suits arising under a residential or commercial property insurance policy not brought by an assignee which is issued or renewed on or after July 1, 2021.” House Bill 305, Lines 1162-1165 (posted April 23, 2021), attached hereto as Exhibit “C.” The language limiting application of §627.70152 to policies issued or renewed after July 1, 2021, was specifically excluded when House Bill 305 was laid to rest and the House and Senate passed SB 76 which became enacted into law. The fact that the restrictive language was removed in lieu of the expansive text applying the statute to all suits arising under a property insurance policy is further clear evidence of legislative intent that the statute be applied retroactively. In examining the history, it is helpful to understand Senate process to fully comprehend the significance of the statutory changes made by the Senate. If a Senator desires to introduce a bill to change a law, he or she requests Senate Bill drafting to prepare the language in the proper form. The Senator then reviews the draft language and, if it is acceptable, formally files the bill. This Senator is called the ‘sponsor’ of the bill. The President of the Senate then refers the bill to three committees, which take up the bill for consideration in order. Here, the first committee of reference was the Senate Banking and Insurance Committee chaired by Senator Boyd. The Senate Banking and Insurance Committee took up SB 76 and addressed it in a public meeting. SB 76 was considered in depth and subject to amendments. A bill can be amended an unlimited number of times in committee. If the bills and amendments are adopted by the Committee, a Senator can move for the creation of a ‘Committee Substitute’ (for the original bill). If that motion is adopted, the original bill and all amendments will be referred to the second committee of reference. Here, the Senate Banking and Insurance Committee created a Committee Substitute (“CS for SB 76”) and referred SB 76 to the second committee of reference. The second committee to address SB 76 was the Senate Judiciary Committee chaired by Senator Brandes. The Judiciary Committee repeated the consideration and amendment process for SB 76 and referred its own CS for SB 76 to the third and final committee, the Rules Committee. The Rules Committee referred a final CS for SB 76 to the entire Senate. The Senate then passed SB 76. This legislative history is crucial to understanding the legislative intent of Florida Statute § 627.70152 as created by SB 76. SB 76 was not passed in a haphazard fashion. It was subject to numerous amendments and revisions. Every change and every word that survived in the statute exists for an express purpose and meaning. None of the language in SB 76 can be considered random or meaningless. SB 76 expressly removed HB 305’s language that §627.70152 exclusively applies to policies issued or renewed after July 1, 2021. This removal is a conclusive indication that the Legislature intended for SB 76 to apply retroactively. Recall, the law as actually in effect states: “(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 a surplus lines insurer.” §627.70152(1). In light of this legislative history, it is beyond reasonable dispute that the Legislature intended Florida Statute §627.70152 to apply retroactively. Id. B. Retroactive application of §627.70152(3) does not violate onstitutional principles. A clear expression of retroactivity will be disregarded if the statute impairs vested rights, creates new obligations, or imposes new penalties. Village of El Portal v. City of Mia mi Shores, 362 So. 2d 275 (Fla. 1978). Having clearly established that the Legislature intended Florida Statute §627.70152 to apply retroactively, the court must now consider whether the statute violates any constitutional principles. Metro. Dade County, 737 So. 3d at 503. “Generally, due process considerations prevent the State from retroactively abolishing vested rights.” Id.; see also Menendez, 35 So. 2d at 877. Retroactive application of a statute is not invalid unless vested rights are adversely affected or destroyed when a new obligation or duty is created or imposed. Metro. Dade County, 737 So. 3d at 503. The focus is to determine “whether retroactive application of the statute ‘attaches new legal consequences to events completed before its enactment’.” Menendez, 35 So. 2d at 877. To make that determination in Menendez, the court made a comparison between the new statute and preexisting law.’ Id. at 876. In determining that the statute could not be applied retroactively, the court found the pre-suit notice requirement there operated to “delay the insured’s right to institute a cause of action.” Id. at 878. To determine whether vested rights are impaired in the instant case, the court must preliminarily identify what is considered substantive in a first party property insurance case. In Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1129 (Fla. 2000), the Supreme Court of Florida reaffirmed that: Ina “first-party” action against an insurance carrier founded upon section 624.155(1)(b), which affirmatively creates a company duty to its insured to 3 As described in Menendez, to answer the central question of whether retroactive application of the statute attached new legal consequences, the court was required to compare the newly amended law to section 672.736 as it existed at the time the insureds’ insurance policy was issued. 35 So 3d at 876. act in good faith in its dealings under the policy, liability is based upon the carrier's conduct in processing and paying a given claim. Thus, the action is totally unlike an ordinary “insured vs. insurer” action brought only under the policy, in which the carrier's claim file is deemed not producible essentially because its contents are not relevant to the only issues involved, those of coverage and damages ... Id. at 1129 (quoting Fidelity & Cas. Ins. Co. v. Taylor, 525 So. 2d 908, 909-10 (Fla. 3d DCA 1987) (emphasis added). Accordingly, the only two substantive issues in a first party property insurance case are coverage and damages. Thus, the test regarding whether a substantive right is implicated must be analyzed in light the effect the statutory change has on an insured’s claims to coverage and damages. If these substantive rights are not violated, the insured’s vested rights are not adversely affected or destroyed. In the case at bar, §627.70152(3)'s pre-suit Notice requirement does not impair or penalize a claimant's substantive positions on coverage and damages. It only establishes a protocol for a simple and effortless Notice procedure that a Plaintiff must comply with prior to filing suit. There is no postponing of a claimant's ability to bring a suit for overdue benefits. Cf. Menendez, 35 So. 2d at 879. The Menendez Court held that the statute at issue in that case substantively altered the insurer’s obligation to pay, because it gave the insurer more time to meet its obligation; furthermore, it held that the statute altered an insured’s right to sue under the contract because an action for a claim of benefits could not be initiated until the additional time for payment expired. Id. Section 627.70152(3) does not provide the insurer additional time under the statute. It provides the insurer with notice that the insured will initiate litigation and informs the insurer of the amount that is in dispute. For a denied claim, the insurer essentially responds by either: (1) accepting coverage; (2) continuing to deny coverage; or (3) asserting the right to reinspect the damage property. §627.70152(4)(a)1-3, Fla. Stat. (2021). Regarding a Notice asserting an act or omission other than a denial of coverage, an insurer may respond by making a settlement offer or requiring the claimant to participate in appraisal or another method of alternative dispute resolution. §627.70152(4)(b). While the pre-suit Notice requirement applies retroactively to contracts and losses in existence prior to the new law, no legal consequences are attached to the rights and duties under the contract or the antecedent loss. The substantive claims continue without a retroactive effect. The only effect is the fact that, by filing the suit after July 1, 2021, a new procedure designed to facilitate settlements operates in tandem with the claimant’s suit on the contract for property damages. “Filing” is simply the operative event that sets this procedure in motion. Neither the pre-suit Notice nor the Response change the insured’s positions as to coverage or damages. The Policy remains the same. The coverage position is neither stronger, nor weaker. The amount of damages present and claimable remain the same. Section 627.70152(3) only introduces a simple common-sense procedure to put the insurer on notice of a claim prior to suit. All the insured must do to comply is file a simple Notice of Intent to Initiate Litigation providing the following information: (1) that the notice is provided pursuant to the section, (2) the alleged acts or omissions. (3) if filed by an attorney, copy of notice provided to the insured, (4) if coverage was denied, an estimate of damages, only if known, and (5) if the acts or omissions are other than a denial of coverage, a pre-suit settlement demand, and the disputed amount. See Fla. Stat. § 627.70152(3) (2021). These are the most basic facts of any claim that an insured would necessarily possess if suit was imminent. If an insured wants to sue an insurer on certain date, the insured may still sue the insurer on that very same date under §627.70152(3), as long as the necessary pre-suit procedures are followed. Nor is there any delay imposed regarding the time period to adjust a claim or any additional time afforded to pay benefits. See §627.70131(5)(a), Florida Statutes (2021) (unchanged statutory language not affected by §627.70152). Rather than place any delay on an insured’s claim or right to suit, Fla. Stat. §627.70152(3) actually aids the insured in expediting the insured’s claim. Section 627.70152(4) places an affirmative duty on the insurer to reconsider its claims decision, and, pursuant to §627.70152(4)(b), make an offer to the insured or enter alternative dispute resolution. These simple pre-suit processes do not delay the presentation of a claim but expedite its procedural aspects and promote settlement of claims. They do not impair the right to sue but provide a process to mitigate the need for suit by providing a procedure for the insured to amicably resolve his or her action. Ultimately, the new requirements are minimal and do not mandate the insured to do anything substantively different. Section 627.70152(3) does not violate constitutional rights, does not affect a claimant's right to sue or ability to recover damages, nor does it change the insurance coverage provided by the policy. The Florida Legislature enacted SB 76 with an express and unambiguous purpose. SB 76 was written and enacted to provide a few simple steps to expedite the settlement of legitimate insurance claims without tying up scarce judicial resources. It is no secret that a tsunami of property insurance lawsuits has inundated Florida’s court system in recent years, overwhelming judicial resources, and endangering Florida’s entire insurance market. The National Association of Insurance Commissioners (“NAIC”) recently produced a study‘ showing that Florida property insurance lawsuits make up 4 O’Conner, Amy. “NAIC Data: Florida Property Lawsuits Total 76% of Insurer Litigation in U.S. Insurance Journal” (April 14, 2021). A copy of this article is attached hereto as Exhibit “D.” 76% of all insurance litigation in the U.S. SB 76 was passed for the clear public policy of reducing the burden of insurance litigation by creating effortless pre-suit procedures to facilitate settlement without burdening or delaying an insured’s right to suit. When signing the bill, Governor DeSantis expressed this public policy in no uncertain terms. He stated that, “I’m proud to sign SB 76 today to continue our mission of insurance reform in Florida. Since my first days in office, I have been committed to doing whatever it takes to reduce the burden of property insurance on Florida families.” See “Governor DeSantis Signs Legislation to Continue Insurance Reform in Florida.” Flgov.com (June 11, 2021), attached hereto as Exhibit “E.” This expresses the clear intent of SB 76 to reform insurance law and provide immediate relief to Florida insureds and insurers by providing simple processes to expedite settlement of claims. SB 76, by its creation of §627.70152(3), enunciate a clear public policy to reduce the burden that excessive property insurance litigation has placed upon Florida’s insureds, insurers, judicial resources, and the entire insurance market. Applying §627.70152(3) retroactively will allow its simple pre-suit procedures to facilitate settlement of insurance claims. As demonstrated in the NAIC Report, the property insurance crisis did not begin on July 1, 2021. Failing to apply §627.70152(3) would allow the tremendous amount of litigation arising from pre-July 1, 2021, policies or claims to continue to burden judicial resources for years to come. To affect the public policy in SB 76, §627.70152(3) must be applied retroactively to any property insurance lawsuits filed after July 1, 2021. CONCLUSION Section 627.70152(3) was created by SB 76, which, during the drafting process, expressly and specifically removed language that would have limited its application. As signed into law, §627.70152(3) applies to all suits filed on or after July 1, 2021. This leaves no room for dispute that the legislature intended §627.70152(3) to apply to all property insurance actions filed after July 1, 2021. A careful review of §627.70152(3) reveals that it imposes no substantive burdens on insureds. Rather, it provides simple pre-suit notice procedures that expedite the settlement of insureds’ claims and presents them with an opportunity to resolve their claim without the burden of litigation. Section 627.70152(3) presents a clear public policy to lessen the burden of excessive property insurance litigation in Florida. Given the number of property insurance actions prior to the enactment date of July 1, 2021, (as demonstrated by the NAIC Report), there is no way to meaningfully enact this public policy without applying §627.70152(3), as intended by the Legislature. As described above, §627.70152(3) applies to the subject Complaint. The Plaintiff was required to file a Notice of Intent to Initiate Litigation with the Department of Financial Services pursuant to §627.70152(3). Fla. R. Civ. P. 1.130 requires such a Notice to be attached to the Complaint. Here, Plaintiff neither filed such a Notice with the Department nor attached it to Plaintiff's Complaint. Pursuant to §627.70152(5), “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....” Accordingly, the subject Complaint must be dismissed without prejudice. WHEREFORE, as Plaintiff has failed to comply with the pleading requirements of §627.70152, Defendant, UNITED PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court grant this Motion, enter an Order dismissing the subject Complaint without prejudice, enter an Order awarding fees and costs to Defendant, and granting any further relief that the Court deems just, necessary, and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 13, 2021, the foregoing was electronically filed through the Florida Courts E-Filing Portal which will send a notice of electronic filing to: Thomas Renda, Esq., Cohen Law Group, 350 North Lake Destiny Rd, Maitland, FL 32751, trenda@itsaboutjustice.law, mercedes@itsaboutjustice.law. s/ C. DeWitt Revels, III C. DEWITT REVELS, III, ESQ. Florida Bar No. 0073573 Celeste Murphy-Gerling Florida Bar No. 1024815 Walker, Revels, Greninger & Netcher, PLLC 189 S. Orange Ave., Suite 1830 Orlando, Florida 32801 Tel: 407-789-1830 Fax: 321-251-2908 DRevels@wrgn-law.com CMurphy-Gerling@wrgn-law.com CDR-Service@wrgn-law.com Counsel for Defendant, UNITED PROPERTY & CASUALTY INSURANCE COMPANY EXHIBIT A Filing # 134854334 E-Filed 09/18/2021 02:43:05 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA CASE NUMBER: JOAN KOENIG, Plaintiff, Vv. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / COMPLAINT & DEMAND FOR JURY TRIAL COMES NOW, Plaintiff, Joan Koenig, by and through the undersigned counsel and sues Defendant, United Property & Casualty Insurance Company, and alleges as follows: 1 This is an action for breach of contract with damages greater than Thirty Thousand Dollars ($30,000.00), exclusive of interest, costs, and attorney’s fees. 2. At all material times hereto, Plaintiff, Joan Koenig (hereinafter “Plaintiff’), was and is a Florida resident. 3 At all material times hereto, Defendant, United Property & Casualty Insurance Company, was a corporation duly licensed to transact insurance business in the State of Florida. Defendant does business, has offices, and/or maintained agents for the transaction of its customary business in Lake County, Florida. 4 Jurisdiction and venue of this matter are proper in circuit Court for Lake County, Florida. 5 Prior to May 21, 2020, Plaintiff sought and purchased homeowner’s insurance from Defendant to cover their property located at 2970 Mediterranean Loop Tavares, Florida 32778, (hereinafter “Plaintiff's Property”). Said policy of insurance, which is believed to be policy number UHV344952207 (hereinafter “Plaintiff's Policy”), was issued by Defendant to Plaintiff to provide insurance coverage which included, but was not limited to, coverage afforded to protect Plaintiff's Property against wind and/or hailstorm damage. 6 Plaintiffs Policy was in full force and effect as of May 21, 2020. A formal copy of the Plaintiff's Policy is not currently in the possession of Plaintiff, but is well known to Defendant, and has been requested by Plaintiff through a Request to Produce, which has been served upon Defendant contemporaneously with this Complaint. See: Equity Premium, Inc. v. Twin City Fire Ins. Co.,956 So.2d 1257 (Fla 4th DCA 2007); Amiker v. Mid-Century Ins. Co.,398 So.2d 974 (Fla Ist DCA 1981); Parkway General Hospital, Inc. y. Allstate Ins. Co., 393 So.2d 1171 (Fla. 3d DCA 1981) and Sasche v. Tampa Music Co., 262 So.2d 17( Fla. 2d DCA 1972). 7 On or about May 21, 2020, Plaintiff's Property was damaged by a wind and/or hailstorm event. Said wind and/or hailstorm event was covered under Plaintiff’s Policy. 8 This is an action related to Defendant’s breach of contract for failure to fully indemnify Plaintiff from loss. COUNT I - BREACH OF CONTRACT AGAINST DEFENDANT COMES NOW, Plaintiff, Joan Koenig, by and through the undersigned counsel and sues Defendant, United Property & Casualty Insurance Company, and alleges as follows: 9 Plaintiff re-alleges paragraphs 1 through 8 above and incorporates the same by reference herein. 10. Plaintiff is a named insured under Plaintiffs Policy, which was in full force and effect all times material to this Complaint. 11. Plaintiff has complied with all conditions precedent to this lawsuit and to entitle Plaintiff to recover under Plaintiff's Policy, or any such conditions have been waived. 12. Despite demand for payment, Defendant has failed or refused fully indemnify Plaintiff from the amount of loss. 13. Defendant’s refusal to reimburse Plaintiff adequately for damages, and otherwise make Plaintiff whole, constitutes a breach of contract. 14. Plaintiff has been damaged as a result of Defendant’s breach in the form of insurance proceeds which have not been paid, interest, costs, and attorney’s fees. 15. Plaintiff has been and remains fully prepared to comply with all of the Policy’s obligations. 16. As a result of Defendant’s breach of contract, it has become necessary that Plaintiff retain the services of the undersigned attorneys pursuant to Sections 627.428, 626.9373, 57.041, 57.104, Florida Statutes. Plaintiff is obligated to pay a reasonable fee for the undersigned attorney’s services in bringing this action, plus necessary costs. 17. Plaintiff is entitled to recover attorney’s fees and costs under Sections 627.428, 626.9373, 57.041, 57.104, Florida Statutes. WHEREFORE, Plaintiff, Joan Koenig, by and through the undersigned counsel, demands judgment against Defendant, United Property & Casualty Insurance Company, for all damages with interest, costs, attorney fees pursuant to Sections 627.428, 626.9373, 57.041, 57.104, Florida Statutes, and for all other remedies the Court sees fit to grant, and Plaintiff demands trial by jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this document will be served on Defendant along with the Summons in this action. Date: September 18, 2021 /s/Thomas Renda COHEN LAW GROUP Thomas Renda, Esq. Florida Bar Number: 1022420 FOR THE FIRM 350 North Lake Destiny Road Maitland, Florida 32751 Phone: (407) 478-4878 Fax: (407) 478-0204 Primary: trenda@itsaboutjustice.law Secondary: mercedes@itsaboutjustice.law EXHIBIT B ENROLLED 2021 Legislature Cs for CS for CS for SB 76, 1st Engrossed 202176er An act relating to insurance; creating s. 489.147, F.S.; providing definitions; prohibiting certain practices by contractors; providing for disciplinary proceedings; providing that the acts of any persons on behalf of a contractor are considered the acts of a contractor; providing that certain acts constitute unlicensed contracting; providing penalties; prohibiting a contractor from executing a contract 10 with a residential property owner for a roofing repair 11 or replacement unless certain notice is included; 12 authorizing the residential property owner to void the 13 contract within a specified timeframe when such notice 14 is not included; amending s. 624.424, F.S.;7 requiring 15 property insurers, effective a certain date, to 16 include certain data regarding closed claims in their 17 annual reports to the Office of Insurance Regulation; 18 requiring specified insurers to provide the office 19 with certain information under certain circumstances; 20 requiring the office to consider certain costs in 21 determining whether payments made by an insurer to an 22 affiliate are fair and reasonable; amending s. 23 626.7451, F.S.; requiring managing general agents to 24 enter into specified contracts with insurers even when 25 the managing general agents control, or are controlled 26 by, the insurers; amending s. 626.7452, F.S.;7 27 providing that a managing general agent may be 28 examined as if it were the insurer even if the 29 managing general agent solely represents a single Page 1 of 44 CODING: Words st¥ieken are deletions; words underlined are additions. ENROLLED 2021 Legislature Cs for CS for CS for SB 76, 1st Engrossed 202176er 30 domestic insurer; amending s. 626.854, F.S.;7 31 prohibiting certain acts by specified licensed 32 contractors and their subcontractors; providing 33 construction; prohibiting certain acts by a public 34 adjuster, public adjuster apprentice, and certain 35 other persons; providing that certain acts constitute 36 unlicensed practice of public adjusting; providing 37 penalties; amending s. 626.9373, F.S.; providing for 38 the award of reasonable attorney fees as provided by 39 specified provisions of law under certain 40 circumstances; amending s. 627.351, F.S.; revising a 4l procedure that the plan of operation of Citizens 42 Property Insurance Corporation must provide; requiring 43 the corporation to include the costs of catastrophe 44 reinsurance to its projected 100-year probable maximum 45 loss in its rate calculations even if the corporation 46 does not purchase such reinsurance; deleting obsolete 47 language relating to the corporation’s rate filings; 48 requiring the corporation to annually implement a rate 49 increase that does not exceed a certain percent for 50 specified years; requiring the corporation’s budget 51 allocations for salaries for the corporation’s 52 employees, all employee raises exceeding 10 percent, 53 and an employee compensation plan for the corporation 54 to be approved by the corporation’s board of 55 governors; amending s. 627.3518, F.S.;7 conforming a 56 cross-reference; amending s. 627.428, F.S.; providing 57 for the award of reasonable attorney fees as provided 58 by specified provisions of law under certain Page 2 of 44 CODING: Words st¥ieken are deletions; words underlined are additions. ENROLLED 2021 Legislature Cs for CS for CS for SB 76, 1st Engrossed 202176er 59 circumstances; amending s. 627.70132, F.S.; revising 60 the definitions of the terms “reopened claim” and 61 “supplemental claim” to include all perils; providing 62 that claims and reopened