ALMA SANCHEZ, ET AL.

v.

SECURITY FIRST INSURANCE COMPANY

Third District Court of Appeal State of Florida

Opinion filed March 6, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1109 Lower Tribunal No. 21-24502 CC ________________

Alma Sanchez, et al., Appellants,

vs.

Security First Insurance, Company, Appellee.

An Appeal from the County Court for Miami-Dade County, Michael G. Barket, Judge.

Buell & Elligett, P.A., and Raymond T. Elligett, Jr., and Amy S. Farrior (Tampa); Duboff Law Firm, and Kenneth R. Duboff, for appellants.

Butler Weihmuller Katz Craig LLP, and Mihaela Cabulea (Tampa); Gunster, Yoakley & Stewart, P.A., and Joseph W. Jacquot (Jacksonville), for appellee.

Link & Rockenbach, PA, and Kara Rockenbach Link and Daniel M. Schwarz (West Palm Beach); William W. Large (Tallahassee), for Florida Justice Reform Institute, as amicus curiae.

2 Bressler, Amery & Ross, P.C., and Hope C. Zelinger and Lilian Rodriguez-Baz (Fort Lauderdale), for First Protective Insurance Company d/b/a Frontline Insurance, as amicus curiae. Before SCALES, LINDSEY, and GORDO, JJ.

PER CURIAM.

Affirmed. See Cantens v. Certain Underwriters at Lloyd’s London, 49 Fla. L. Weekly D360, D362 (Fla. 3d DCA February 14, 2024) (“[B]ecause the presuit notice requirement of section 627.70152(3), taken in context, is procedural in nature, and applies to all policies, regardless of date of inception, the trial court correctly dismissed the action without prejudice pursuant to section 627.70152(5).”); Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089, 1095 (Fla. 4th DCA 2023) (“[B]ecause the presuit notice requirement of section 627.70152 applies retroactively as a procedural provision, it applies to existing policies in effect at the time of enactment.”). But see Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 910 (Fla. 6th DCA 2023) (“[W]e find that section 627.70152 is substantive and cannot be applied retroactively to insurance policies issued before the statute’s effective date.”).

3 Alma Sanchez, et al., v. Security First Insurance Company, 3D22-1109

SCALES, J., specially concurring. Because this panel is bound by the recent holding of another panel of this Court in Cantens v. Certain Underwriters at Llyod’s London, 49 Fla. L. Weekly D360, 2024 WL 591695 (Fla. 3d DCA Feb. 14, 2024),1 we are compelled to affirm the trial court’s June 9, 2022 order dismissing Sanchez’s complaint “without prejudice and without leave to amend.” I, therefore, concur in the result reached in this case, but I write to express my disagreement with Cantens, which followed the Fourth District’s decision in Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023).

I.

Section 627.70152 The issue in this case, as it was in Cantens and Cole, is whether the Legislature’s new statutory condition precedent to an insured’s right to sue the property insurer for an alleged breach of the insurance contract may apply to an existing insurance policy without running afoul of Florida’s

4 prohibition on impairment with contracts.² In 2021, the Legislature enacted the new condition precedent, section 627.70152 of the Florida Statutes, which, among other things, requires that, at least ten days prior to filing suit against the insurer, an insured must provide notice to the Florida Department of Financial Services of the insured’s intent to initiate litigation against the insurer. The insured’s notice must state, with specificity, all of the following information:

1. That the notice is provided pursuant to section

627.70152.

2. The alleged acts or omissions of the insurer giving rise

to the suit, which may include a denial of coverage.

5 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: a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. § 627.70152(3)(a), Fla. Stat. (2021). Under the new legislation, a trial court is required to dismiss any firstparty lawsuit filed by an insured who has not complied with the notice requirement, which means that a plaintiff’s noncompliance cannot be cured by compliance, followed by amending the plaintiff’s lawsuit. § 627.70152(5), Fla. Stat. (2021).3

II.

Retroactive Application of Section 627.70152

7 burdens an insured with a new pre-suit obligation that effectively requires the insured to adjust his own claim. Before an insured can bring an action against an insurer alleging that the insurer has breached the insurance contract by underpaying a claim, the insured must specifically itemize the insured’s damages and attorneys’ fees and costs, and calculate, presumably with specificity, the disputed amount. Because insurers no doubt will vigorously cross-examine insureds regarding discrepancies between amounts demanded at trial and amounts contained in the pre-suit notice, these calculations cannot be approximations. Presumably, if at any time during the proceedings, discrepancies arise between an insured’s actual damages and those contained in the pre-suit notice, insurers will seek dismissal of the insured’s lawsuit for failure to comply with the new statute’s itemization requirement. From a practical perspective, compliance with the statute’s pre-suit itemization requirement adds a significant, substantive, and expensive pre-suit burden on an insured trying to enforce contractual rights. The new statute also imposes a new penalty – dismissal of the insured’s lawsuit – for noncompliance with the statute’s notice requirement. As mentioned earlier, section 627.70152(5)’s mandatory dismissal penalty requires the trial court to dismiss the lawsuit without prejudice; the statute does not allow a trial court the discretion to dismiss a complaint, with leave

8 to amend following compliance with the new statute. Hence, in order to sue his insurer, a policyholder whose lawsuit has been dismissed under section 627.70152(5), must comply with the statute’s notice requirements and then re-file his lawsuit (paying the associated filing fees) and again serve process on the insurer (paying those associated costs). Cantens characterizes this penalty as not “substantively impact[ing] an insured’s ability to recover, as the action may be refiled[.]” Cantens, 49 Fla. L. Weekly at D362. But Cantens’s conclusory holding in this regard provides little solace to a lowincome policyholder forced to again incur filing and service of process fees, or worse, to a policyholder whose lawsuit has suffered section 627.70152(5)’s mandatory suit dismissal after the expiration of the statute of limitations, and therefore, cannot re-file. It would seem that the remedies available to such a policyholder are nonexistent.

III.

Conclusion

9

It bears noting that virtually every pre-Cole federal case4 and, most recently, our sister court’s Hughes case,5 hold that section 627.70152’s new notice requirement cannot, consistent with Florida’s prohibition on contract impairment, be applied to existing insurance contracts. While the statute’s new requirements may very well be good public policy, I agree with the reasoning uniformly expressed in those pre-Cole opinions and by the Hughes Court: section 627.70152’s notice requirements impose new substantive burdens on policyholders, and therefore, cannot be constitutionally applied to existing insurance policies.

4 See e.g., Oceana III Condo. Ass’n v. Westchester Surplus Lines Ins. Co., 658 F. Supp. 3d 1177,1183 (S.D. Fla. 2023) (holding that section 627.70152 cannot be applied retroactively because it “substantively alters an insurer’s obligation to pay and an insured’s right to sue under contract”) (quoting Rosario v. Scottsdale Ins. Co., No. 21-24005-Civ, 2022 WL 196528, at *1 (S.D. Fla. Jan. 21, 2022)); Dozois v. Hartford Ins. Co. of the Midwest, 595 F. Supp. 3d 1204, 1207-08 (M.D. Fla. 2022); Williams v. Foremost Prop. & Cas. Ins. Co., 619 F. Supp. 3d 1161, 1166 (M.D. Fla. 2022); Villar v. Scottsdale Ins. Co., No. 22-cv-21362, 2022 WL 3098912, at *4 (S.D. Fla. Aug. 4, 2022); Hershenhorn v. Am. Home Assurance Co., No. 2:21-Cv-897-JES-MRM, 2022 WL 3357583, at *2 (M.D. Fla. Aug. 15, 2022); see also O'Kelley v. Lexington Ins. Co., No. 1:22-CV-21218, 2022 WL 17583683, at *3-4, 2022 (S.D. Fla. Sept. 16, 2022) (Magistrate’s Report and Recommendation).

5 Hughes, 374 So. 3d at 907-10.