Third District Court of Appeal State of Florida
Opinion filed November 5, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-2263 Lower Tribunal No. 21-22216-CA-01 ________________
Universal Property & Casualty Insurance Company, Appellant,
vs.
Marie Suffrat, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko Sanchez, Judge.
LINK & ROCKENBACH, PA, and David A. Noel and Kara Rockenbach Link (West Palm Beach), for appellant.
Scott J. Edwards, P.A., and Scott J. Edwards (Boca Raton); Vyacheslav Borshchukov, P.A., and Vyacheslav Borshchukov (Fort Lauderdale), for appellee.
Before GORDO, BOKOR and GOODEN, JJ.
GORDO J. Universal Property & Casualty Insurance Company (“Universal”)
appeals a final judgment following a jury verdict in favor of Marie Suffrat
(“Suffrat”) and the trial court’s order denying its motion to set aside the
verdict. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We reverse
and remand for further proceedings.
I.
Suffrat is the owner of a residential property that was insured by
Universal for the period of February 6, 2017 to February 6, 2018. On
September 10, 2017, while the policy was in effect, her property was
damaged by Hurricane Irma. Suffrat reported the loss to Universal nearly
three years later, on September 2, 2020. Universal denied the claim, citing
Suffrat’s failure to promptly notify Universal of the loss. 1
On September 29, 2021, Suffrat filed a declaratory judgment action
against Universal. Thereafter, Universal moved to dismiss the action for
Suffrat’s failure to plead she provided a pre-suit notice of intent to initiate
litigation, as required by section 627.70152(3). 2 Suffrat filed a response,
1 The insurance policy explicitly requires the insured to provide prompt notice to Universal or its agent after experiencing a loss. 2 Three months before Suffrat filed suit, the legislature enacted section 627.70152, Florida Statutes (2021), which included a required pre suit notice of intent to litigate as a condition precedent to filing suit.
2 arguing the statute could not be applied retroactively to an action founded on
a policy issued before the effective date of the statute. Agreeing with her
argument, the trial court denied Universal’s motion to dismiss. 3
Universal then filed an answer to the declaratory judgment action and
asserted affirmative defenses, alleging that Suffrat’s failure to promptly notify
Universal of her claim had prejudiced Universal’s investigation of the loss.
Universal also asserted affirmative defenses based on policy exclusions,
including wear and tear and faulty workmanship. The case proceeded to a
jury trial on June 26-28, 2023.
At trial, Suffrat testified that during Hurricane Irma, she was informed
by her tenant that water was coming into the home because of ceiling
damage. Suffrat made repairs to the roof, but did not report the damage until
September 2020.
Evidence presented at trial suggested inadequate roof repairs. Suffrat
testified she made multiple repairs to the roof because the leaking continued
to get worse. 4 This was confirmed by her engineering expert who testified
3 Universal renewed its motion to dismiss prior to trial. The trial court denied that motion. 4 Suffrat testified she relied on individuals with no construction background to perform the roof repairs.
3 he observed multiple repairs conducted to the roof and ongoing leaks at the
property.
Ultimately, Suffrat’s engineering expert concluded Hurricane Irma
caused the roof damage because no storms before or since could have
caused similar damage to the roof shingles. He further provided the damage
was not caused by wear and tear because such damage does not rip
shingles from the roof but causes them to lose granulation and curl.
Universal presented its own expert and a corporate representative to
testify regarding the prejudice to the investigation of the loss. They testified
that, due to the passage of time and undocumented repairs, it was difficult to
tell what damage, if any, occurred during Hurricane Irma as opposed to wear
and tear. Universal also submitted into evidence its letter to Suffrat denying
coverage based on her lack of prompt notice and the resulting prejudice.
After Universal rested its case, Suffrat moved for a directed verdict on
Universal’s late notice defense. Suffrat argued that Universal waived the late
notice defense by including alternative policy exclusion affirmative defenses
in the same pleading. The trial court granted the motion and struck
Universal’s right to present its late notice defense to the jury.
4 The jury returned a verdict in favor of Suffrat. Universal filed a motion
to set aside the verdict or, in the alternative, motion for new trial, which the
trial court denied. This appeal followed.
II.
This Court “review[s] de novo a trial court’s ruling on a motion to
dismiss.” Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089, 1091
(Fla. 4th DCA 2023). Likewise, “when we undertake review of an order on a
motion for directed verdict, we employ a de novo standard of review;
importantly, however, we ‘must evaluate the evidence in the light most
favorable to the non-moving party, drawing every reasonable inference
flowing from the evidence in the nonmoving party’s favor, and “if there is
conflicting evidence or if different reasonable inferences may be drawn from
the evidence, then the issue is factual and should be submitted to the jury
for resolution.”’” Miami Dade Cnty. v. Berastain, 388 So. 3d 886, 888-89
(Fla. 3d DCA 2023) (quoting Miami-Dade Cnty. v. Guyton, 388 So. 3d 50, 52
(Fla. 3d DCA 2023)).
III.
Universal argues the trial court erred in denying its motion to dismiss
based on Suffrat’s failure to provide pre-suit notice of intent to initiate
5 litigation, as required by section 627.70152(3), Florida Statutes. We
recognize the trial court did not have the benefit of our holding in Cantens at
the time of its decision on Universal’s motion to dismiss. 5 See Cantens v.
Certain Underwriters at Lloyd’s London, 388 So. 3d 242, 246 (Fla. 3d DCA
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[.]”). Based on our holding in Cantens, we find the trial court
erred in denying Universal’s motion to dismiss.
IV.
We also find the trial court erred in granting Suffrat’s motion for directed
verdict on Universal’s late notice defense. Universal asserts it was entitled
to plead and have its late notice defense submitted to the jury, which was
supported by evidence adduced at trial, and to plead affirmative defenses in
the alternative. We agree.
It is well settled that Florida law allows a party to plead multiple
defenses in the alternative. See Fla. R. Civ. P. 1.110(g) (“A party may also
state as many separate claims or defenses as that party has, regardless of
5 We also note Cantens is being reviewed in the Florida Supreme Court on conflict jurisdiction.
6 consistency and whether based on legal or equitable grounds or both.”);
Fintak v.
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed November 5, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-2263 Lower Tribunal No. 21-22216-CA-01 ________________
Universal Property & Casualty Insurance Company, Appellant,
vs.
Marie Suffrat, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko Sanchez, Judge.
LINK & ROCKENBACH, PA, and David A. Noel and Kara Rockenbach Link (West Palm Beach), for appellant.
Scott J. Edwards, P.A., and Scott J. Edwards (Boca Raton); Vyacheslav Borshchukov, P.A., and Vyacheslav Borshchukov (Fort Lauderdale), for appellee.
Before GORDO, BOKOR and GOODEN, JJ.
GORDO J. Universal Property & Casualty Insurance Company (“Universal”)
appeals a final judgment following a jury verdict in favor of Marie Suffrat
(“Suffrat”) and the trial court’s order denying its motion to set aside the
verdict. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We reverse
and remand for further proceedings.
I.
Suffrat is the owner of a residential property that was insured by
Universal for the period of February 6, 2017 to February 6, 2018. On
September 10, 2017, while the policy was in effect, her property was
damaged by Hurricane Irma. Suffrat reported the loss to Universal nearly
three years later, on September 2, 2020. Universal denied the claim, citing
Suffrat’s failure to promptly notify Universal of the loss. 1
On September 29, 2021, Suffrat filed a declaratory judgment action
against Universal. Thereafter, Universal moved to dismiss the action for
Suffrat’s failure to plead she provided a pre-suit notice of intent to initiate
litigation, as required by section 627.70152(3). 2 Suffrat filed a response,
1 The insurance policy explicitly requires the insured to provide prompt notice to Universal or its agent after experiencing a loss. 2 Three months before Suffrat filed suit, the legislature enacted section 627.70152, Florida Statutes (2021), which included a required pre suit notice of intent to litigate as a condition precedent to filing suit.
2 arguing the statute could not be applied retroactively to an action founded on
a policy issued before the effective date of the statute. Agreeing with her
argument, the trial court denied Universal’s motion to dismiss. 3
Universal then filed an answer to the declaratory judgment action and
asserted affirmative defenses, alleging that Suffrat’s failure to promptly notify
Universal of her claim had prejudiced Universal’s investigation of the loss.
Universal also asserted affirmative defenses based on policy exclusions,
including wear and tear and faulty workmanship. The case proceeded to a
jury trial on June 26-28, 2023.
At trial, Suffrat testified that during Hurricane Irma, she was informed
by her tenant that water was coming into the home because of ceiling
damage. Suffrat made repairs to the roof, but did not report the damage until
September 2020.
Evidence presented at trial suggested inadequate roof repairs. Suffrat
testified she made multiple repairs to the roof because the leaking continued
to get worse. 4 This was confirmed by her engineering expert who testified
3 Universal renewed its motion to dismiss prior to trial. The trial court denied that motion. 4 Suffrat testified she relied on individuals with no construction background to perform the roof repairs.
3 he observed multiple repairs conducted to the roof and ongoing leaks at the
property.
Ultimately, Suffrat’s engineering expert concluded Hurricane Irma
caused the roof damage because no storms before or since could have
caused similar damage to the roof shingles. He further provided the damage
was not caused by wear and tear because such damage does not rip
shingles from the roof but causes them to lose granulation and curl.
Universal presented its own expert and a corporate representative to
testify regarding the prejudice to the investigation of the loss. They testified
that, due to the passage of time and undocumented repairs, it was difficult to
tell what damage, if any, occurred during Hurricane Irma as opposed to wear
and tear. Universal also submitted into evidence its letter to Suffrat denying
coverage based on her lack of prompt notice and the resulting prejudice.
After Universal rested its case, Suffrat moved for a directed verdict on
Universal’s late notice defense. Suffrat argued that Universal waived the late
notice defense by including alternative policy exclusion affirmative defenses
in the same pleading. The trial court granted the motion and struck
Universal’s right to present its late notice defense to the jury.
4 The jury returned a verdict in favor of Suffrat. Universal filed a motion
to set aside the verdict or, in the alternative, motion for new trial, which the
trial court denied. This appeal followed.
II.
This Court “review[s] de novo a trial court’s ruling on a motion to
dismiss.” Cole v. Universal Prop. & Cas. Ins. Co., 363 So. 3d 1089, 1091
(Fla. 4th DCA 2023). Likewise, “when we undertake review of an order on a
motion for directed verdict, we employ a de novo standard of review;
importantly, however, we ‘must evaluate the evidence in the light most
favorable to the non-moving party, drawing every reasonable inference
flowing from the evidence in the nonmoving party’s favor, and “if there is
conflicting evidence or if different reasonable inferences may be drawn from
the evidence, then the issue is factual and should be submitted to the jury
for resolution.”’” Miami Dade Cnty. v. Berastain, 388 So. 3d 886, 888-89
(Fla. 3d DCA 2023) (quoting Miami-Dade Cnty. v. Guyton, 388 So. 3d 50, 52
(Fla. 3d DCA 2023)).
III.
Universal argues the trial court erred in denying its motion to dismiss
based on Suffrat’s failure to provide pre-suit notice of intent to initiate
5 litigation, as required by section 627.70152(3), Florida Statutes. We
recognize the trial court did not have the benefit of our holding in Cantens at
the time of its decision on Universal’s motion to dismiss. 5 See Cantens v.
Certain Underwriters at Lloyd’s London, 388 So. 3d 242, 246 (Fla. 3d DCA
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[.]”). Based on our holding in Cantens, we find the trial court
erred in denying Universal’s motion to dismiss.
IV.
We also find the trial court erred in granting Suffrat’s motion for directed
verdict on Universal’s late notice defense. Universal asserts it was entitled
to plead and have its late notice defense submitted to the jury, which was
supported by evidence adduced at trial, and to plead affirmative defenses in
the alternative. We agree.
It is well settled that Florida law allows a party to plead multiple
defenses in the alternative. See Fla. R. Civ. P. 1.110(g) (“A party may also
state as many separate claims or defenses as that party has, regardless of
5 We also note Cantens is being reviewed in the Florida Supreme Court on conflict jurisdiction.
6 consistency and whether based on legal or equitable grounds or both.”);
Fintak v. Fintak, 120 So. 3d 177, 186 (Fla. 2d DCA 2013) (“A party is
permitted to plead in the alternative during litigation, and it follows that a party
may also take inconsistent actions in his or her own affairs as a mechanism
for ‘hedging the bets,’ so long as that action does not result in prejudice to
another party.”); Campbell v. Salman, 384 So. 2d 1331, 1333 (Fla. 3d DCA
1980) (“Florida Rule of Civil Procedure 1.110(g) permits a party to state
alternative and inconsistent claims or defenses.”).
Here, Universal’s initial denial letter was based on Suffrat’s failure to
provide prompt notice. In its answer, Universal raised untimely notice of the
loss as one of multiple affirmative defenses. Because Universal properly
raised the late notice defense and Florida law allows parties to plead multiple
defenses in the alternative, it was improper for the trial court to strike
Universal’s late notice defense by granting a directed verdict. See Sec. First
Ins. Co. v. Visca, 387 So. 3d 313, 316 (Fla. 4th DCA 2024) (“[A] property
insurer [does] not waive an untimely notice defense by denying coverage on
other grounds.”).
Moreover, there was ample evidence to support the late notice
defense, including Suffrat reporting her property loss to Universal almost
three years after its occurrence; evidence that Suffrat’s repairs were
7 inadequate, causing the roof to continue leaking and worsening the damage;
and Universal’s expert and corporate representative both testifying that due
to the passage of time and undocumented repairs, it was difficult to tell what
damage, if any, occurred during Hurricane Irma as opposed to wear and tear
and deterioration. Because there was sufficient evidence in the record
regarding whether Universal was prejudiced by any delay in receiving notice,
the trial court erred in granting Suffrat’s motion for directed verdict on
Universal’s late notice defense. See Salam v. Benmelech, 590 So. 2d 1008,
1009 (Fla. 3d DCA 1991) (“A motion for a directed verdict is proper only when
there is no evidence upon which the jury could lawfully find a verdict for the
non-moving party.”); City of Hialeah v. Rehm, 455 So. 2d 458, 460 (Fla. 3d
DCA 1984) (“Where there is any evidence upon which a jury could lawfully
find for the movant's adversary, a verdict should not be directed.”); Hunzinger
Constr. Corp. v. Quarles & Brady Gen. P’ship, 735 So. 2d 589, 597 (Fla. 4th
DCA 1999) (“A directed verdict should only be granted where there is no
evidence upon which a jury could properly rely for finding for the nonmoving
party.”).
We reverse and remand for further proceedings consistent with this
opinion.
Reversed and remanded.