Thursday, February 4, 2010

Application of Presuit Notice To Insurance Policy Is A Substantive Right, Cannot Be Retroactively Applied

The Florida Supreme Court released its opinion today in Menendez v. Progressive Express Insurance Co., Inc. (SC08-789) and concluded that "the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not 'violate the general rule against retrospective operation'.”  Because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract,”  the Third District's decision was quashed.  The Florida Supreme Court stated:
In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was "merely procedural" and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.
The briefs, oral argument and the Third District's opinion are linked below.

Florida Supreme Court

*Florida Supreme Court's Opinion (2/4/2010)

Third District Court of Appeal

*Third District's Opinion, 2007 WL 4245385 (12/05/2007)


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