Todd Legal, PA – July 10, 2014
In Donovan v. Florida Peninsula, Florida’s Fourth DCA recently issued a short but informative decision clarifying the statute of limitations for Florida homeowners insurance claims. Donovan’s case involved a 2005 insurance claim for hurricane damage.
The question was whether the 2011 version of Fla. Stat. 95.11(2)(e) applied to Donovan’s claim. The claim occurred and was reported to Florida Peninsula before the statute of limitations was amended. Florida Peninsula asked the Court to retroactively apply the 2011 statute of limitations to Donovan’s lawsuit. Donovan claimed that the statute was not retroactive and, as a result, she was only required to file the lawsuit within 5 years of Florida Peninsula denying the claim (which would have given her until basically the date of this article to file the lawsuit).
In 2011, Florida’s legislature changed the statute of limitations (or statute of repose) to require the homeowner to file a homeowners insurance-related lawsuit within 5 years of the date of loss. Prior to this amendment, Florida courts would give the homeowner five years from the date that he alleged the breach of the contract occurred. In other words, according to the old statute of limitations, the homeowner could presumably wait 10 years to report a claim and it would not be limited because he actually had 5 years from the date the claim was allegedly denied or underpaid (of course, the prompt notice provision would prohibit that claim).
The Fourth DCA determined Fla. Stat. 95.11(2)(e)‘s 2011 statutory amendments did not apply to Donovan’s claim. Thus, Donovan did not breach the statute of limitations because she did not have to file her lawsuit within 5 years of the date of loss. Donovan had 5 years from the date Florida Peninsula breached the contract to file the lawsuit.
In addition, the Fourth DCA determined that a trial court should not dismiss a lawsuit for breach of the prompt notice provision. As you know if you read First Party Property Insurance Blog, the question of late notice cannot be determined at the pleadings stage.