District Court of Appeal of the State of Florida, Fourth District
April 20, 2022
The Fourth District Court of Appeals addressed whether the 10-day notice requirement of Fla. Stat. § 627.7152(9) (regarding pre-suit notice for assignment of benefits (AOB)) applied to an AOB executed after the effective date of the statute, when the insurance policy was issued before the statute’s effective date. The Court of Appeals found the 10-day notice requirement applied and affirmed the trial court’s granting of summary judgment for Citizens.
The insured suffered a water loss on June 10, 2018 and executed an AOB on July 16, 2019 with the Plaintiff, Total Care Restoration, LLC (“Total Care”). Ultimately, on September 30, 2019, Citizens denied Total Care’s claim for benefits and suit ensued. Citizens asserted as an affirmative defense failing to provide a “Notice of Intent to File a Lawsuit at least ten days prior to filing the instant suit” and moved for summary judgment. Despite Total Care’s assertion that the pre-suit notice was not required because the insurance policy was issued before Fla. Stat. § 627.7152’s effective date, the trial court granted summary judgment for Citizens, finding the legislature was clear that Fla. Stat. §627.7152 applied to all AOBs executed on or after July 1, 2019.
The Fourth District analyzed Total Care’s AOB, which tracked the language of the Fla. Stat. § 627.7152 almost verbatim, evidencing “the parties’ acknowledgement of the statute’s application to the July 16, 2019 assignment of benefits.” The Court rejected Total Care’s reliance on Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010) because that case did not involve an AOB, noting Menendez was factually distinct and did address the question at issue whether a subsequent contract—an AOB under an insurance policy—is subject to the notice requirements of an earlier enacted statute. The Court held that because Total Assignment’s AOB was signed after the enactment of Fla. Stat. § 627.7152, the statute was properly applied and was not applied retroactively.
Thus, the Fourth District has held that AOBs entered into after July 1, 2019, are subject to the requirements of Fla. Stat. § 627.7152, even if the policy upon which the AOB is based was issued before July 1, 2019.