In a call that’s being known as a win for insurers, Florida’s 4th District Courtroom of Appeals held final week that the statutory discover of intent to sue applies to all assignment-of-benefits agreements signed after the 2019 legislation was enacted, even when the insurance coverage coverage pre-dates the statute.
The plaintiff’s legal professional within the case mentioned the choice may have widespread implications for different varieties of assignees.
“Immediately it’s AOB, however tomorrow it could possibly be mortgages, medical insurance and others who’re named assignees,” mentioned legal professional Michael Redondo, of Miami, who represented Whole Care Restoration within the swimsuit in opposition to Residents Property Insurance coverage Corp.
Redondo and insurance coverage attorneys mentioned the choice may additionally have an effect on policyholders’ discover of intent that should be given earlier than lawsuits are filed in non-AOB claims disputes, a key a part of Senate Invoice 76, which took impact in July 2021.
“Primarily based on the Whole Care resolution, carriers can argue the discover requirement applies to any lawsuit filed after July 1, 2021 and, due to this fact, the difficulty of retroactive utility is moot,” reads a weblog by attorneys Allan Rotlewicz and Michael Tessitore of the Rumberger Kirk legislation agency.
Redondo mentioned the appeals court docket’s April 20 opinion was in error, however his shoppers haven’t determined if they are going to attraction to the state Supreme Courtroom.
Within the swimsuit, Whole Care Restoration, a big restore and renovation contractor primarily based in Doral, Florida, argued that the 2019 AOB legislation didn’t apply as a result of the Residents insurance coverage coverage was written lengthy earlier than the statute was adopted.
House owner Annie Griffith discovered water harm in her residence in 2018. Greater than a yr later, in July 2019, simply after the AOB legislation took impact, she assigned advantages to Whole Care, which carried out dryout providers. In September of 2019, Residents denied the declare. Whole Care then filed swimsuit, asking a court docket to declare that the work was coated by the coverage.
Residents’ attorneys argued to the court docket that Whole Care had not given the 10-day discover earlier than it filed swimsuit. The 2019 legislation, Florida Statute 627.7152, stipulates that the discover should specify the damages in dispute, the quantity claimed and a pre-suit settlement demand. Whole Care contended that to use the discover requirement to an older insurance coverage coverage can be making the legislation retroactive, one thing not spelled out within the statute and customarily frowned on by the courts.
The trial court docket in Broward County disagreed and sided with Residents. On attraction, the 4th DCA upheld the decrease court docket’s ruling.
“Opposite to Whole Care’s argument, the statute was not utilized retroactively—the trial court docket utilized it to an project executed after the efficient date of the statute,” appeals court docket Decide Robert Gross wrote in the opinion for the 4th DCA three-judge panel. “The project itself tracks verbatim a lot of the statutory language contained in part 627.7152, evidencing the events’ acknowledgement of the statute’s utility to the July 16, 2019 project of advantages.”
The judges discovered that Whole Care had no real interest in the declare or the coverage till it signed the AOB settlement. Solely then did the restoration firm stand within the sneakers of the policyholder. The contractor had relied on a 2010 resolution by the Florida Supreme Courtroom, Menendez vs. Progressive Categorical Insurance coverage, during which the court docket discovered {that a} pre-suit discover requirement in a private damage safety auto insurance coverage case couldn’t be utilized retroactively.
However the appeals court docket mentioned that the Menendez case was not related as a result of it didn’t contain an project of advantages.
Redondo mentioned Tuesday that the 4th DCA “missed the mark,” and that case legislation for the reason that 1800s has upheld the idea that assignees and assignors are legally indistinguishable. He additionally identified that the appeals court docket resolution didn’t deal with the substance of the statute itself, solely that it was not retroactively utilized, which leaves lingering questions.
He acknowledged that the AOB notice-of-intent query will most likely resolve itself. Most AOB claims now within the courts had been filed after the 2019 legislation was enacted, many insurance policies have been written or renewed since then, and plenty of assignees are giving pre-suit notices, attorneys have mentioned.
However on insured’s pre-suit notices on direct claims in opposition to insurers, as required by SB 76, points stay to be settled. “That’s the subsequent combat to return,” Redondo mentioned.
Lawyer Maureen Pearcy, who represented Residents within the Whole Care attraction, didn’t touch upon the 4th DCA resolution Tuesday morning. However insurance coverage attorneys Rotlewicz and Tessitore mentioned the opinion may play in insurers’ favor in direct claims litigation.
“This resolution could also be useful to carriers searching for compliance with Part 627.70152, Florida Statutes, concerning the pre-suit discover required in an insured lawsuit,” they wrote. The SB 76 discover requirement “went into impact on July 1, 2021 and applies ‘solely to all fits not introduced by an assignee arising below a residential or industrial property insurance coverage coverage…’”
The Whole Care resolution got here a day earlier than the Florida Supreme Courtroom added readability to a different pre-suit discover requirement. The court docket discovered that notices in medical malpractice claims need only be mailed before the deadline, not acquired by the defendant.
