Williams v. Foremost Prop. & Cas. Ins. Co.

619 F.Supp.3d 1161

Richa WILLIAMS, Plaintiff, v. FOREMOST PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.

Case No. 3:21-cv-926-MMH-JBT

United States District Court, M.D. Florida, Jacksonville Division

Signed August 5, 2022

Andrew Philip McDonald, David Duff Barnhill, McDonald & Barnhill, P.A., Tampa, FL, for Plaintiff.

Michael A. Packer, Corey Kathleen Setterlund, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Jacksonville, FL, for Defendant.

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is before the Court on Defendant Foremost Property & Casualty Insurance Company's ("Foremost") Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and Motion to Strike Plaintiff's Attorney's Fees (Doc. 14; Motion), filed on October 29, 2021. On November 2, 2021, Plaintiff Richa Williams ("Williams") filed Plaintiff's Response in Opposition to Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and Motion to Strike Plaintiff's Attorney's Fees (Doc. 15; Response). Therefore, the Motion is ripe for review.¹

I. Background

Williams initiated this action in the Circuit Court of the Seventh Judicial Circuit, in and for, St. Johns County, Florida. See Defendant Foremost Property & Casualty Insurance Company's Petition for Removal (Doc. 1; Notice). In her Complaint for Breach of Contract and Demand for Jury Trial (Doc. 3; Complaint), Williams asserts a single breach of contract claim against Foremost. See generally id. Specifically, Williams alleges that Foremost issued a "contract of insurance, Policy No. 0663943453" (the "Policy") insuring her property located at 10325 Zigler Avenue, Hastings, Florida (the "Premises"). Id. at 2. While the Policy was in effect, on September 11, 2017, the Premises suffered damages caused by Hurricane Irma. Id. Williams requested that Foremost pay for the damages in accordance with the terms of the Policy, id., but Foremost "failed or refused to provide coverage under the insurance policy and has failed to pay promptly the amounts due." Id. at 3.

On September 15, 2021, Foremost filed the Notice, removing the case to this Court on the basis of diversity jurisdiction. See generally Notice. Shortly afterwards, Foremost filed the instant Motion in which it seeks dismissal of Williams's Complaint or entry of summary judgment in its favor, or alternatively, an order striking Williams's request for attorney's fees, all based upon the provisions of Florida Statute section 627.70152 ("Section 627.70152").² See generally Motion. Williams opposes the relief requested by Foremost arguing that Section 627.70152, which did not go into effect until July 1, 2021, cannot be retroactively applied to her claims under the Policy. See generally Response.

II. Florida Statute Section 627.70152

On June 11, 2021, Governor Ron DeSantis signed SB 76 into law with an effective date of July 1, 2021. SB 76 is a bill relating to property insurance contracts which, among other things, created Section 627.70152. See generally Ch. 2021-77, Laws of Florida; Fla. Stat. § 627.70152 (2022). The relevant portions of the statute for purposes of this litigation provide that "[a]s 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 . . . at least 10 business days before filing" such a suit. Fla. Stat. § 627.70152(3). Additionally, Section 627.70152(5) instructs that "[a] court must dismiss without prejudice any claimant's suit relating to a claim for which a notice of intent to initiate litigation was not given as required[.]" Fla. Stat. § 627.70152(5). The statute also both limits the availability of attorney's fees in certain circumstances and alters the calculation of an award of attorney's fees. Fla. Stat. § 627.70152(8)(a). Finally, Section 627.70152(8)(b) provides that if a court dismisses a claim pursuant to Section 627.70152(5), the court may not later "award to the claimant any incurred attorney fees for services rendered before the dismissal of the suit." Fla. Stat. § 627.70152(8)(b).

III. Arguments of the Parties

In the Motion, Foremost seeks dismissal or entry of summary judgment in its favor because Williams failed to comply with the pre-suit notification requirements of Section 627.70152(3), and alternatively, seeks to strike Williams's request for attorney's fees based upon the application of the attorney fee provision in subsection (8) of Section 627.70152. See generally Motion. Despite the fact the Policy was issued prior to the effective date of Section 627.70152, Foremost argues that it can, and should, be applied retroactively. Id. at 7-21. Foremost supports its contention first by asserting the statutory language, statutory purpose, and legislative history of Section 627.70152 reflect a clear legislative intent for the retroactive application of the law. Id. at 8-15. Second, Foremost argues that its retroactive application does not violate constitutional principles, because it does not substantively affect the rights of the insured. Id. at 15-19. Alternatively, should the Court disagree that dismissal or entry of summary judgment is warranted, Foremost contends the Court must strike Williams's request for attorney's fees as a matter of law pursuant to Section 627.70152 since Williams did not provide a pre-suit demand. Id. at 21. According to Foremost, for this reason, "there is no reasonable basis for a calculation of attorney's fees, other than zero" under section 627.70152(8)(a). Id. at 22.

In her Response, Williams contends that the Florida Supreme Court's decision in Menendez v. Progressive Express Insurance Co., Inc., 35 So. 3d 873 (Fla. 2010) forecloses Foremost's attempt to have this newly enacted statute apply retroactively to her claim under the Policy. See Response at 2-7. She argues that, in Menendez, the court declined to permit application of the requirements of a statute governing automobile insurance policy claims which was enacted subsequent to the issuance of the subject policy. Id. at 2-4. She notes that the court concluded that the change in law effected by the new statute, which included a pre-suit notice requirement and limited the recovery of attorney's fees, was substantive and could not be applied retroactively. Id. at 4-5. According to Williams, the same is true of Section 627.70152 and, thus, the analysis of the Menendez decision controls. Id. at 3. In sum, Williams contends that, regardless of the clarity of the legislative intent with respect to retroactive application, allowing the application of Section 627.70152 to her claims under the Policy would violate constitutional principles because the "additional requirements, obligations, [and] limitations" created by the statute affect her substantive rights. Id. at 4-7.

IV. Discussion

The resolution of the Motion depends entirely on whether Section 627.70152, which was enacted after the issuance of the Policy, can be applied retroactively to Williams's claim in this case. If it can be, then the Motion would be granted such that Williams's Complaint would be dismissed, even if only without prejudice, and she would not be entitled to an award of attorney's fees. If, on the other hand, application of Section 627.70152 is not constitutionally permissible, then the Motion would be denied. See Menendez, 35 So. 3d at 877 (noting that because the statute was enacted after the issuance of the policy, it could be applied retroactively only if the legislature expressed a clear intention for retroactive application and such application would not violate constitutional norms).

Florida law recognizes a presumption against the retroactive application of a statute that affects substantive rights. Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994). To rebut the presumption: (1) the legislation must express a clear intent that it apply retroactively, and (2) the retroactive application must be constitutionally permissible. Metro Dade Cty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). Notably, retroactive application is not always constitutionally improper, but it is impermissible in cases where "vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, . . ." McCord v. Smith, 43 So. 2d 704, 708-09 (Fla. 1949); see also Metro Dade Cty., 737 So. 2d at 503 ("due process considerations prevent a State from retroactively abolishing vested rights"). For purposes of this Order, the Court assumes that the legislature clearly intended Section 627.70152 to apply retroactively. Thus, here as in Menendez, "the central focus of this Court's inquiry is whether retroactive application of the statute 'attaches new legal consequences to events completed before its enactment.' " Menendez, 35 So. 3d at 877 (quoting Metro Dade Cty., 737 So. 2d at 499).

In Menendez, the Florida Supreme Court rejected an attempt to retroactively apply a newly enacted statute, which included a pre-suit notice requirement, altered the timing payment must be made to an insured, and restricted the availability of attorney's fees, to a claim under an insurance policy issued before its enactment. Id. at 877-880. The court reasoned that, although the legislature intended retroactive application, such application was impermissible due to the substantive nature of the changes made by the statute. Id. at 880. Indeed, the court specifically noted that even where the legislature intends to permit retroactive application, it "will reject such an application if the statute . . . creates a new obligation or imposes a new penalty." Id. at 877. In declining to apply the new statute retroactively, the court identified four provisions of the statute as being problematic: "those which (1) impose a penalty, (2) implicate attorneys' fees, (3) grant an insurer additional time to pay benefits,...