In Hughes v. Universal Property & Cas. Ins. Co., 374 So.3d 900 (Case No. 6D23-296) (Fla. 6th DCA Nov. 22, 2023), the Sixth District got it right. The case concerned whether a statutory pre-suit notice requirement, enacted after an insurance policy’s issuance, applies to an even later-filed action for breach of that policy.^[1] Bound by precedent, the court found that it does not.

In Hughes, Appellant, Rebecca Hughes (“the Insured”), purchased a property insurance policy from Appellee, Universal Property & Casualty Insurance Company (“the Insurance Company”), and sustained an alleged loss before the enactment of section 627.70152, Florida Statutes (2021). She filed her lawsuit, however, after section 627.70152’s enactment.

Section 627.70152, noted the court, requires an insured who desires to sue his or her property insurance carrier to file a pre-suit notice of intent to litigate with the Department of Financial Services before suing. If the insured fails to do so, section 627.70152 mandates that a court dismiss without prejudice^[2] any suit brought by the insured for which pre-suit notice was required.

In this case, shortly after the statute’s effective date, the Insured sued the Insurance Company for breach of her property insurance policy without first filing a pre-suit notice under section 627.70152. The Insurance Company moved to dismiss based on the Insured’s failure to file the pre-suit notice, which the trial court granted.

On appeal, the Insured contended that the trial court had erred by holding that she had to file the pre-suit notice before bringing her lawsuit. Relying on the Florida Supreme Court’s unanimous decision in Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), the Insured argued that section 627.70152 is a substantive statute that cannot apply to a claim brought under an insurance policy purchased before the statute’s enactment. The Sixth District appellate court concluded that it was bound by Menendez and its progeny. The court, therefore, reversed and certified a conflict with Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA 2023).

The court began its discussion by analyzing the history of section 627.70152 of the Florida Statutes. When the Insured filed her lawsuit in August 2021, noted the court, section 627.70152 contained eight interrelated subsections.^[3]  The court began by discussing the relevant provisions and their relation to each other.

Section 627.70152(1) states that “[t]his section applies exclusively to all suits not brought by an assignee arising under a residential or commercial property insurance policy . . . .”

Section 627.70152(3)(a) creates the pre-suit notice requirement:

As 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. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. . . . The notice must state with specificity all of the following information:

1. That the notice is provided pursuant to this section.

2. The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage.

3. If provided by an attorney or other representative, that a copy of the notice was provided to the claimant.

4. If the notice is provided following a denial of coverage, an estimate of damages, if known.

5. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the following:

a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs.

b. The disputed amount.

Section 627.70152(3)(b) tolls the statute of limitations, in certain circumstances, for claims subject to the pre-suit notice requirement. That subsection provides that “[s]ervice of a [pre-suit] notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period.”

Section 627.70152(4) imposes a duty on insurers to create procedures to investigate and evaluate claims asserted in pre-suit notices and to respond in writing to such notices:

An insurer must have a procedure for the prompt investigation, review, and evaluation of the dispute stated in the notice and must investigate each claim contained in the notice in accordance with the Florida Insurance Code. An insurer must respond in writing within 10 business days after receiving the notice specified in subsection (3). The insurer must provide the response to the claimant by e-mail if the insured has designated an e-mail address in the notice.

Section 627.70152(4)(a) requires that “[i]f an insurer is responding to a notice served on the insurer following a denial of coverage by the insurer, the insurer must respond by: 1. Accepting coverage; 2. Continuing to deny coverage; or 3. Asserting the right to reinspect the damaged property.” § 627.70152(4)(a)1.-3., Fla. Stat. (2021). The statute then explains that “[i]f the insurer responds by asserting the right to reinspect the damaged property, it has 14 business days after the response asserting that right to reinspect the property and accept or continue to deny coverage.” § 627.70152(4)(a)3. The statute of limitations is further tolled while the insurance company reinspects the property:

The time limits provided in s. 95.11 are tolled during the reinspection period if such time limits expire before the end of the reinspection period. If the insurer continues to deny coverage, the claimant may file suit without providing additional notice to the insurer.

Id.

Section 627.70152(4)(b) requires insurers that did not completely deny coverage of an initial claim to respond to a pre-suit notice with a settlement offer or by demanding that the claimant participate in an alternative dispute resolution process:

If an insurer is responding to a notice provided to the insurer alleging an act or omission by the insurer other than a denial of coverage, the insurer must respond by making a settlement offer or requiring the claimant to participate in appraisal or another method of alternative dispute resolution.

If the insurer demands that the insured participate in an alternative dispute resolution process, this subsection provides for further tolling of the statute of limitations on the insured’s claim during the alternative dispute resolution process:

The time limits provided in s. 95.11 are tolled as long as appraisal or other alternative dispute resolution is ongoing if such time limits expire during the appraisal process or dispute resolution process.

§ 627.70152(4)(b).

Section 627.70152(5) imposes a penalty of dismissal without prejudice for claimants who file suit without first providing the required pre-suit notice:

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 by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable.

Section 627.70152(7) provides for yet more tolling of the statute of limitations for thirty days after the “presuit notice process”:

If a claim is not resolved during the presuit notice process and if the time limits provided in s. 95.11 expire in the 30 days following the conclusion of the presuit notice process, such time limits are tolled for 30 days.

Section 627.70152(8) contains multiple provisions concerning a claimant’s ability to recover attorneys’ fees.^[4] Relevant to the pre-suit notice requirement, section 627.70152(8)(b) provides that where a claimant’s lawsuit is dismissed for failure to provide the pre-suit notice, the claimant may not recover any attorneys’ fees incurred for services rendered before the dismissal.

Thus, observed the court, section 627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims:

The statute requires insureds to provide pre-suit notice and, where they do not deny coverage completely, requires insurers to make a pre-suit settlement demand. The statute mandates insurers to create and apply a new set of procedures to investigate, evaluate, and respond to pre-suit notices. The statute also contains four provisions altering the statute of limitations that would otherwise apply to an insured’s claim under section 95.11, Florida Statutes.

Most significantly, stated the court:

… section 627.70152 creates a safe harbor for insurance companies. Before section 627.70152’s enactment, an insurer had a single opportunity to evaluate and pay an insurance claim before being sued—when the insured made the claim. If an insurer wrongfully denied a claim, the insured immediately possessed a cause of action against the insurance company for breach of the insurance policy, and the insured could immediately sue the insurance company to recover damages and attorneys’ fees. After section 627.70152’s enactment, an insurer now has a second opportunity to evaluate and pay a claim and to prevent the insured from asserting a cause of action for breach of the insurance policy. Specifically, after the insurer receives a pre-suit notice of intent to litigate, the insurer has an additional 10 business days to accept coverage and pay the claim. If the insurer pays the claim during that period, the insured’s cause of action will never ripen and the claim for attorneys’ fees the insured otherwise would have possessed will never exist. This is the definition of a safe harbor.

Further, noted the court, if the insurance company invokes its right to reinspect the damaged property, the insurance company will have an additional 14 business days in which it can accept coverage and avoid the accrual of the insured’s cause of action for breach of the insurance policy. In sum, section 627.70152 significantly alters an insurer’s obligation to pay and an insured’s right to sue under a property insurance policy.

The Court’s Analysis of Section 627.70152’s Retroactive Application

On appeal, the Insured argued that section 627.70152 was a substantive statute that cannot apply retroactively to a claim brought under an insurance policy she purchased before the statute’s enactment. The Insurance Company responded by arguing that a retroactive application is clearly intended and constitutionally permissible. While these arguments have some allure, the court noted, the court was not deciding the case on a blank slate. The Florida Supreme Court had addressed when statutes may apply retroactively and the court whined that it was required to apply its precedent faithfully, “even if [the court] might decide the case differently as a matter of first principles.”

I. Applying Section 627.70152 to the Insured’s Lawsuit Would Constitute a Retroactive Application of the Statute.

The parties agreed that the operative date for determining section 627.70152’s retroactive application was the subject policy’s issuance date. This made sense, said the court, because to determine whether a statute concerning insurance contracts has retroactive application, “we look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because `the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’” Menendez, 35 So. 3d at 876 (quoting Hassen v. State Farm Mut. Auto. Ins., 674 So. 2d 106, 108 (Fla. 1996)). It was, therefore, clear the Insurance Company sought to apply section 627.70152 retroactively. The question remaining was whether the law allowed it.

II. Section 627.70152 cannot be applied retroactively.

The court set forth the law:

The Florida Supreme Court has set forth a two-part test to determine whether a statute enacted after an insurance policy’s issuance applies retroactively. Menendez, 35 So. 3d at 877. “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively.” Id. To answer that question, we look for “clear evidence of legislative intent to apply the statute retrospectively.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 194 (Fla. 2011) (quoting Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999)); see also State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) (“The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary . . . .”). The Florida Supreme Court has emphasized that the absence of a statement in a statute that the statute is inapplicable to existing contracts does not constitute clear evidence of retroactive intent. See Devon, 67 So. 3d at 197. In sum, clear evidence means just that—actual clear evidence in the statute that the Legislature intended the statute to apply retroactively.

If the first part of the test—clear legislative intent for retractive application of the statute—is satisfied, the Court must next “determine whether retroactive application would violate any constitutional principles.” Menendez, 35 So. 3d at 877. In this prong, “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.’” Id. (quoting Chase Fed., 737 So. 2d at 499). The Court must reject retroactive application of a statute “if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.” Id. (citing Laforet, 658 So. 2d at 61); see also Devon, 67 So. 3d at 194 (“[I]f a statute accomplishes a remedial purpose by creating new substantive rights or imposing new legal burdens, the presumption against retroactivity would still apply.” (quoting Chase Fed., 737 So. 2d at 500 n.9)). In other words, the second prong of the test determines whether the statute is substantive.

(a) The Legislature did not intend for section 627.70152 to apply retroactively.

Section 627.70152’s text, concluded the court, contains no clear evidence of legislative intent for retroactive application; there is no statutory language calling for application of the statute to insurance policies issued before the statute’s effective date. In fact, section 627.70152 makes no mention at all of insurance policies issued before the statute’s enactment. Rather, it contains an effective date of July 1, 2021, indicating legislative intent for the statute to apply beginning on that date. See Devon, 67 So. 3d at 196 (“We have noted that the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law.”). And of course, the Legislature wrote section 627.70152 and included the effective date against the backdrop of the Florida Supreme Court’s clear precedent mandating that courts look “at the date the insurance policy was issued and not the date that the suit was filed.” Menendez, 35 So. 3d at 876.

The Insurance Company argued that the Legislature intended for section 627.70152 to apply retroactively because the statute states that it applies to “all suits arising under a residential or commercial property insurance policy.” “All suits” in section 627.70152(1), the argument goes, would include suits concerning insurance policies issued both before and after the effective date of the statute. But this subsection concerns the types of cases and policies to which the statute applies— cases involving residential or commercial insurance policies not brought by assignees, not when the statute applies.

Further,

… the Legislature’s use of the phrase “all suits” in one subsection of an eight-subsection statute is too inconclusive to constitute clear evidence of legislative intent for the statute to apply retroactively. See Villar v. Scottsdale Ins., No. 22-CV-21362, 2022 WL 3098912, at *5 (S.D. Fla. Aug. 4, 2022) (“Defendant’s reliance on a single word `all’ is insufficient to rebut the presumption of prospective application by showing `clear’ legislative intent that the law should be applied retroactively. Reading the statute as a whole, there is no indication that the statute was intended to be applied retroactively, and the word `all’ refers all cases arising in the future after the effective date of the statute.”). When the Legislature wishes to give a statute retroactive effect, it has no trouble doing so clearly and unambiguously. See, e.g., Laforet, 658 So. 2d at 57 (describing 1990 statutory amendment that specifically provided for retroactivity to 1982); Essex Ins. v. Integrated Drainage Sols., Inc., 124 So. 3d 947, 951 (Fla. 2d DCA 2013) (describing 2009 statutory amendments which Legislature declared “are remedial in nature and operate retroactively to the regulation of surplus lines insurers from October 1, 1988,” and opining that “[a] more clear expression of legislative intent could hardly be found”). Accordingly, if the Legislature intended for section 627.70152 to apply retroactively to insurance policies issued before the statute’s effective date, it knew how to say so. This is especially true in light of the Legislature’s obligation to speak “clearly” when it intends a statute to apply retroactively and the Florida Supreme Court’s declaration that courts would look to “the date the insurance policy was issued and not the date that the suit was filed.” Menendez, 35 So. 3d at 876.

The court noted that the Fourth District recently opined that the Legislature did express a clear intent for section 627.70152 to apply retroactively. See Cole, 363 So. 3d at 1093. As the Insurance Company urged the court to do, the Fourth District relied on the statute’s use of “all.” Id. However, as the court had explained above, “all” refers to the types of policies the statute applies to, not the timing of the statute’s applicability, and reading the statute as a whole, the court found this single word in one of eight subsections was insufficient to constitute clear evidence of legislative intent for the statute to apply retroactively.

Another statutory clue the Fourth District considered is silence:

The statute goes further and provides 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.” § 627.70152(3)(a), Fla. Stat. Thus, it also applies to all policies, including those already in existence at the time of the statute’s effective date. If the legislature had intended to limit this presuit notice provision to policies issued after the statute’s effective date, the legislature would have included language stating so.

Id. (emphasis added). The italicized statement, however, inverts Florida Supreme Court precedent requiring clear evidence of intent for a statute to apply retroactively, not a lack of evidence that the statute applies only prospectively. The absence of language in a statute stating that the statute is inapplicable to existing insurance policies does not constitute clear evidence of retroactive intent. See Devon, 67 So. 3d at 197. In short, clear evidence must consist of more than silence.

(b) Even if the Legislature intended section 627.70152 to apply retroactively, section 627.70152 is substantive under precedent of the Florida Supreme Court and cannot be applied retroactively.

Even if the court agreed with the Fourth District that section 627.70152 contains clear evidence of legislative intent to apply the statute retroactively, the court found that it would nonetheless find that the statute is substantive and therefore cannot be applied retroactively. Simply put, concluded the court, Menendez‘s holding compels a finding that section 627.70152 is substantive in nature.

Menendez involved an amendment to Florida’s “Required Personal Injury Protection” (“PIP”) statute that imposed a pre-suit notice requirement similar to the requirement imposed by section 627.70152. 35 So. 3d at 876-77. The Menendez Court determined that the statutory amendment at issue contained clear evidence of legislative intent to apply the statute retroactively. Id. at 877. Therefore, the supreme court proceeded to determine whether the statute’s retroactive application would violate any constitutional principles. Id.

The supreme court noted that before the pre-suit notice provision’s enactment, the PIP statute did not require an insured to provide notice to an insurer before filing an action for overdue benefits. Id. at 878. After enactment, an insured had to provide pre-suit notice . Id. If the insurer paid the claim within the additional time provided by the statute, the insured could not sue for late payment or nonpayment; this shielded the insurer from a claim for attorneys’ fees. Id. The supreme court also noted that the amendment tolled the statute of limitations on the insured’s claim during the pre-suit notice process. Id. In finding that the pre-suit notice provision was substantive, the supreme court concluded “that the most problematic provisions of the statute [were] those which (1) impose[d] a penalty, (2) implicate[d] attorneys’ fees, (3) grant[ed] an insurer additional time to pay benefits, and (4) delay[ed] the insured’s right to institute a cause of action.” Id.

Importantly, the provision implicating attorneys’ fees at issue in Menendez did not completely eliminate the insured’s right to recover attorneys’ fees. Id. Rather, just like section 627.70152, the provision simply delayed the insured’s ability to recover attorneys’ fees until after the pre-suit notice process and, if the claim was resolved during the pre-suit notice process, then prevented the insured recovering attorneys’ fees. Menendez, 35 So. 3d at 878-79. In finding this change to the recovery of attorneys’ fees substantive, the Menendez Court relied on a First District decision holding that a statutory amendment allowing an employer or insurer an extra 16 days to provide benefits before incurring responsibility for attorneys’ fees a substantive statutory change. Menendez, 35 So. 3d at 879 (citing Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437, 438 (Fla. 1st DCA 2004)). In the instant case, the court noted that section 627.70152 potentially allowed an insurance company an extra 24 days to pay a claim before exposure to an insured’s attorneys’ fees.

The Florida Supreme Court also relied on another First District case, which found a statute was substantive because it created a safe harbor allowing a party to avoid a claim for attorneys’ fees. Id. (citing Walker v. Cash Register Auto Ins. of Leon Cnty., Inc., 946 So. 2d 66 (Fla. 1st DCA 2006)). This is exactly what section 627.70152 does, observed the court, and the Menendez Court’s conclusion applied to the Insured’s situation:

[T]he 2001 statutory amendment cannot be applied retroactively because it allows an insurer to avoid an award of attorneys’ fees, which constitutes a substantive change to the statute in effect at the time the insureds’ insurance policy was issued. According to the new statutory presuit notice provisions, an insured is precluded from recovering attorneys’ fees if the insurer pays the claim within the additional time period provided by the statute. Similar to the safe harbor provisions at issue in Stolzer and Walker, which were found to be substantive, the amended statute in this case creates a “safe period” by extending the period of time in which the insurer could pay a claim. Thus, the amendment relieves the insurer of the obligation to pay fees and also constitutes a substantive change to the statute as it existed before the 2001 amendment.

Menendez, 35 So. 3d at 879.

Just like the amendment to the PIP statute at issue in Menendez, section 627.70152 allows an insurer to avoid an award of attorneys’ fees by paying a claim during the safe harbor period provided by the pre-suit notice process. The Menendez Court concluded that this was a substantive change to the statute, and so, concluded the court, “we must do the same.”

The Menendez Court further found the amendment to the PIP statute substantive because it “permit a delayed payment from an insurer and postpones an insured’s ability to bring a suit for overdue benefits.”^[5] Id. at 879. The supreme court noted that before the PIP statute’s amendment, an insurance company had to pay a PIP claim within thirty days after receiving a notice of loss. Id. “Moreover, an insured had the right to bring suit for an overdue claim once the thirty days had expired.” Id. After the PIP statute’s amendment, however, the insurer had more time to pay the insurance benefits, and an insured could not sue until that time expired. Id. The supreme court found that the additional time “substantively alters an insurer’s obligation to pay and an insured’s right to sue under the contract.” Id. In this respect, the pre-suit notice provision in section 627.70152 is indistinguishable from the pre-suit notice provision at issue in Menendez. Section 627.70152 provides an insurer additional time to pay property insurance benefits, and an insured cannot sue to recover these benefits until the additional time expires. Under Menendez, such a statutory change is substantive.

Nearing its conclusion, the Menendez Court summarized a statutory amendment with effects largely synonymous with the ones before the court in Hughes:

In our view, the statute, when viewed as a whole, is a substantive statute. Pursuant to the 2001 version of section 627.736, an insured must now take additional steps beyond filing an application for PIP benefits and beyond complying with section 627.727(4). This includes the preparation and provision of a written notice of intent to litigate, which requires the inclusion of additional information that the insured may not have access to and which may not be sent until the claim is considered overdue under section 627.727(4)(b). An insurer has additional time to meet its obligation under the statute, and an action for a claim of benefits and attorneys’ fees cannot be initiated until the additional time for payment has expired. Thus, the statute allows the insurer additional time to pay the claim and affects the insured’s right to sue and recover attorneys’ fees.

Menendez, 35 So. 3d at 879-80 (emphasis added). Indeed, except for the words, “which requires the inclusion of additional information that the insured may not have access to,” this paragraph could have been written about section 627.70152, concluded the court.

The Cole court distinguished Menendez on two grounds, but a subsequent unanimous Florida Supreme Court decision easily resolves these distinctions. Compare Devon, 67 So. 3d at 187, with Cole, 363 So. 3d at 1093.

One year after the Florida Supreme Court issued Menendez, it decided Devon. In Devon, the Florida Supreme Court applied Menendez’s two-part test to a case— like this one—involving a property insurance policy. 67 So. 3d at 189. At issue in Devon were a 2004 insurance policy and 2005 statutory amendments to an insurance statute, section 627.7015, Florida Statutes. See id. at 190-91. The statute required an insurer to notify its insured about the availability of mediation. Id. at 191. Failure to notify precluded the insurer from exercising its appraisal rights. Id. Before amendment, and at the time the parties entered into the insurance contract, the statute only applied to homeowner’s insurance policies. See § 627.7015(1) & (7), Fla. Stat. (2004). The 2005 statutory amendment, however, expanded the notice obligation to commercial residential policies. See § 627.7015(1) & (7), Fla. Stat (2005).

The insured, a residential condominium association, argued that the insurer’s failure to follow the subsequent statutory amendment precluded appraisal. See Devon, 67 So. 3d at 190-91. The Devon Court held that the trial court had not applied the controlling Menendez test.^[6] Id. at 193-94. It also opined that the statutory amendments were substantive, observing that they imposed additional cost and notice requirements, as well as a penalty for noncompliance. Id. at 194-95.

The Cole court first sought to distinguish Menendez because it was a PIP case, and it applied “a fundamentally different statutory framework, which includes `swift and virtually automatic’ right of the insured to recover.” See Cole, 363 So. 3d at 1095 (quoting Menendez, 35 So. 3d at 877). As an initial matter, the Menendez Court gave no indication it was limiting its holding to PIP cases. Indeed, it structured the opinion by first outlining the PIP amendments at issue, and then applying “the standard applicable to determining whether a statute should be applied retroactively.” See Menendez, 35 So. 3d at 876. In this sense, the appropriate test is untethered from the amended statute’s subject matter. Id.; see also Chase Fed., 737 So. 2d at 499 (applying two-part test to amended Dry Cleaning Contamination Cleanup Act); Laforet, 658 So. 2d at 61 (applying two-part test to amendments of statutes governing uninsured motorist claims). Regardless, Devon applies to the same general type of property insurance policy at issue here. See Devon, 67 So. 3d at 190.

Finally, the Cole court distinguished Menendez by observing that the PIP amendments were all “confined” to a particular statutory subsection. See Cole, 363 So. 3d at 1095. Given the Menendez Court’s admonition that we should determine whether a statute is substantive by viewing it “as a whole,” we cannot view this subtle distinction as dispositive. See 35 So. 3d at 880. Even if we could, the 2005 statutory amendments in Devon applied to more than one statutory subsection. Compare § 627.7015(1) & (7), Fla. Stat. (2005), with § 627.7015(1) & (7), Fla. Stat. (2004). Therefore, bound by Menendez and its progeny, the Sixth District found that section 627.70152 was substantive and could not be applied retroactively to insurance policies issued before the statute’s effective date.

CONCLUSION

Florida Supreme Court precedent required the court to hold that section 627.70152 does not apply retroactively to insurance policies entered into before the statute’s effective date, both because the statute does not include clear evidence of intent for the statute to apply retroactively and because the statute is substantive and cannot constitutionally be applied retroactively. Accordingly, the Sixth District reversed the trial court’s order granting the Insurance Company’s motion to dismiss and remanded the case to the trial court for further proceedings consistent with the opinion. The court certified conflict with Cole v. Universal Property & Casualty Insurance Co., 363 So. 3d 1089 (Fla. 4th DCA, 2023).