Carmel Townhomes Condominium Association, Inc. v. Rockhill Insurance Company

S.D. Florida

Carmel Townhomes Condominium Association, Inc. v. Rockhill Insurance Company

DecidedNovember 29, 2022

Docket1:22-cv-23437

StatusUnknown

This text of Carmel Townhomes Condominium Association, Inc. v. Rockhill Insurance Company (Carmel Townhomes Condominium Association, Inc. v. Rockhill Insurance Company) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carmel Townhomes Condominium Association, Inc. v. Rockhill Insurance Company, (S.D. Fla. 2022).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 22-CV-23437-SEITZ CARMEL TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. ROCKHILL INSURANCE COMPANY, Defendant. /

ORDER DENYING DEFENDANT'S MOTION TO DISMISS THIS MATTER is before the Court on Defendant’s Motion to Dismiss [DE 1-5]. Plaintiff filed its response on November 4, 2022. [DE 10]. This lawsuit was originally filed in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County on September 8, 2022, in which Plaintiff seeks declaratory relief and damages for breach of contract, specifically an underlying insurance policy. [DE 1-2]. This matter was removed to federal court on October 21, 2022. [DE 1]. Defendant argues Plaintiffs case should be dismissed for failing to comply with the pre-suit notice requirements set forth in Fla. Stat. § 627.70152. [DE 1-5 at 129]. Since the insurance policy at hand was issued prior to the enactment of the applicable statute, and application of the statute would affect Plaintiffs substantive rights, Defendant’s Motion to Dismiss [DE 1-5] is DENIED. ANALYSIS This lawsuit arises from property damage following Hurricane Irma, which occurred on September 10, 2017. The underlying insurance policy was issued to Plaintiff on January 31, 2017. Fla. Stat. § 627.70152 became effective on July 1, 2021. Defendant argues Fla. Stat. § 627.70152 should be applied retroactively as it is procedural in nature, and failure to provide pre-suit notice warrants a dismissal without prejudice of Plaintiff's action. [DE 1-5 at 133]. The Court is not persuaded by Defendant’s arguments.

The Florida Supreme Court has held that when evaluating whether a statue applies retroactively, the applicable date is when the policy was issued, not when suit was filed. Menendez v. Progressive Exp. Ins. Co., Inc. 35 So. 3d 873, 876 (Fla. 2010). Further, a statute cannot apply retroactively if the statute will affect a party’s substantive rights. Jd. (citing to Hassen v. State Farm Mut. Auto Ins. Co., So. 2d 106, 108 (Fla. 1996)). In this case, application of Fla. Stat. § 627.70152 would not only affect Plaintiffs rights under the insurance policy but would also eliminate Plaintiff's claim entirely due to the five-year statute of limitation imposed by Fla. Stat. § 95.11. Additionally, the Court disagrees with Defendant’s contention that the legislature intended for Fla. Stat. § 627.70152 to apply retroactively. Absent an explicit expression of the Florida legislature’s intent, the Court will not assume such intent. Therefore it is ORDERED THAT □

(1) Defendant’s Motion to Dismiss [DE 1-5] is DENIED.

_ (2) Defendant must file an Answer on or before Friday, December 9, 2022. DONE and ORDERED at Miami, Florida, thisA i of November, 2022.

Pipes by PATRICIA A. SEITZ UNITED STATES SENIOR DISTRICT JUDGE Cc: Counsel of Record

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 22-CV-23437-SEITZ CARMEL TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. ROCKHILL INSURANCE COMPANY, Defendant. /

ORDER DENYING DEFENDANT'S MOTION TO DISMISS THIS MATTER is before the Court on Defendant’s Motion to Dismiss [DE 1-5]. Plaintiff filed its response on November 4, 2022. [DE 10]. This lawsuit was originally filed in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County on September 8, 2022, in which Plaintiff seeks declaratory relief and damages for breach of contract, specifically an underlying insurance policy. [DE 1-2]. This matter was removed to federal court on October 21, 2022. [DE 1]. Defendant argues Plaintiffs case should be dismissed for failing to comply with the pre-suit notice requirements set forth in Fla. Stat. § 627.70152. [DE 1-5 at 129]. Since the insurance policy at hand was issued prior to the enactment of the applicable statute, and application of the statute would affect Plaintiffs substantive rights, Defendant’s Motion to Dismiss [DE 1-5] is DENIED. ANALYSIS This lawsuit arises from property damage following Hurricane Irma, which occurred on September 10, 2017. The underlying insurance policy was issued to Plaintiff on January 31, 2017. Fla. Stat. § 627.70152 became effective on July 1, 2021. Defendant argues Fla. Stat. § 627.70152 should be applied retroactively as it is procedural in nature, and failure to provide pre-suit notice warrants a dismissal without prejudice of Plaintiff's action. [DE 1-5 at 133]. The Court is not persuaded by Defendant’s arguments.

The Florida Supreme Court has held that when evaluating whether a statue applies retroactively, the applicable date is when the policy was issued, not when suit was filed. Menendez v. Progressive Exp. Ins. Co., Inc. 35 So. 3d 873, 876 (Fla. 2010). Further, a statute cannot apply retroactively if the statute will affect a party’s substantive rights. Jd. (citing to Hassen v. State Farm Mut. Auto Ins. Co., So. 2d 106, 108 (Fla. 1996)). In this case, application of Fla. Stat. § 627.70152 would not only affect Plaintiffs rights under the insurance policy but would also eliminate Plaintiff's claim entirely due to the five-year statute of limitation imposed by Fla. Stat. § 95.11. Additionally, the Court disagrees with Defendant’s contention that the legislature intended for Fla. Stat. § 627.70152 to apply retroactively. Absent an explicit expression of the Florida legislature’s intent, the Court will not assume such intent. Therefore it is ORDERED THAT □

(1) Defendant’s Motion to Dismiss [DE 1-5] is DENIED.

_ (2) Defendant must file an Answer on or before Friday, December 9, 2022. DONE and ORDERED at Miami, Florida, thisA i of November, 2022.

Pipes by PATRICIA A. SEITZ UNITED STATES SENIOR DISTRICT JUDGE Cc: Counsel of Record

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