The Second District has weighed in on the first-party insurance litigation “Notice of Intent” issue, joining the Sixth District in holding that the new NOI requirement is not retroactive. See Buis v. Universal Prop. and Casualty Ins. Co., No. 2D2023-0655 (Fla. 2d DCA Sept. 6, 2024). On this issue, the Third and Fourth Districts have held otherwise.

The Florida Supreme Court has already granted cert to resolve the conflict. See Fla. S. Ct. No. SC2024-0025, 2024 WL 1714497 (Fla. Apr. 22, 2024).

The Second District in Buis wrote:

In evaluating whether it is permissible to apply a statute retroactively, the court applies a two-pronged test: (1) “whether the Legislature intended for the statute to apply retroactively” and (2) “if such an intent is clearly expressed, . . . whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins., 35 So. 3d 873, 877 (Fla. 2010); see also Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 196 (Fla. 2011) (“Our precedent makes abundantly clear that in determining the question of retroactivity of a legislative enactment, the court must apply the two-prong test— beginning with a search for clear evidence of legislative intent for retroactivity.”). Under the second prong, retroactive application is unconstitutional “if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.” Menendez, 35 So. 3d at 877 (citing State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995)); see also Chase Fed. Hous. Corp., 737 So. 2d at 499.

We are not the first appellate district to address the retroactivity of section 627.70152. The Third and Fourth Districts have concluded that section 627.70152 can apply retroactively because it contains clear legislative intent for retroactive application and is procedural in nature. See Cantens v. Certain Underwriters at Lloyd’s London, 388 So. 3d 242, 245 (Fla. 3d DCA 2024); Cole v. Universal Prop. & Cas. Ins., 363 So. 3d 1089, 1093 (Fla. 4th DCA 2023). Conversely, the Sixth District has concluded that section 627.70152 cannot apply retroactively because it lacks clear legislative intent for retroactive application and is substantive in nature. See Hughes v. Universal Prop. & Cas. Ins., 374 So. 3d 900, 910 (Fla. 6th DCA 2023), review granted, No. SC2024-0025, 2024 WL 1714497 (Fla. Apr. 22, 2024).

Accepting the presumption that enforcement of section 627.70152 in this case constitutes retroactive application of the statute, we conclude, as did the Sixth District, that the requisite legislative intent for such retroactive application is lacking. The statute is silent regarding whether it applies to insurance policies issued prior to its enactment. But the statute does contain an effective date of July 1, 2021, and the supreme court has construed the existence of an effective date in a statute as evidence rebutting intent for retroactive application. See Devon Neighborhood Ass’n, 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.” (citing Dep’t of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla. 1977))); Zuckerman-Vernon Corp., 354 So. 2d at 358 (“The 1977 Legislature’s inclusion of an effective date of July 1, 1977, in Ch. 77-281 effectively rebuts any argument that retroactive application of the law was intended.”).

We reject Universal’s argument—which is consistent with the rationale adopted by the Third and Fourth Districts—that the statute’s application to “all suits” indicates clear legislative intent for retroactive application. See § 627.70152(1) (“This section applies exclusively to all suits not brought by an assignee arising under a residential or commercial property insurance policy . . . .”); Cantens, 388 So. 3d at 245 (concluding that section 627.70152 contains clear legislative intent for retroactivity because it applies to “all suits” regardless of when the policy was issued); Cole, 363 So. 3d at 1093 (same). Read in context, the phrase “all suits” is modified by a description of the type of plaintiff and lawsuit for which section 627.70152 applies, not the timing of the insurance policies that are governed by the statute. See Ham v. Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020) (“In interpreting [a] statute, we follow the `supremacy-of-text principle’—namely, the principle that `[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’” (second alteration in original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012))). In other words, the language “all suits” informs the reader that the statute only applies to suits involving plaintiffs who are not “assignee[s]” and that arise under “residential or commercial property insurance polic[ies]” and that the statute excludes suits involving plaintiffs who areassignees and that arise under other insurance policies such as automobile or personal injury policies.

In addition, an expansive reading of the “all suits” language to indicate universal temporal inclusivity does not take into consideration the term “exclusively,” a word which indicates that the sentence in which it appears is intended to narrow the application of the statute to certain types of cases to the exclusion of others—not to be expansively inclusive of cases based on insurance policies issued before and after the statute was enacted. By use of the term “exclusively,” the provision is excluding from its purview those suits that are “brought by an assignee arising under a residential or commercial property insurance policy” and accomplishing that exclusion by use of the phrase “all suits” to indicate all those suits that are “notbrought by an assignee arising under a residential or commercial property insurance policy.” (Emphasis added.) There is nothing in the language of the statute to indicate that the phrase “all suits” is serving another purpose of expanding its reach to those suits based on policies that both predate and postdate the enactment of the statute. To the contrary, an interpretation of the phrase “all suits” as an expansive temporal indicator is one that disregards the contextual clue of use of the term “exclusively” in the phrase “exclusively to all suits.” See Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 198 (Fla. 2007) (“We are required to give effect to `every word, phrase, sentence, and part of the statute, if possible, and words in a statute should not be construed as mere surplusage.’” (quoting Am. Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 2005))).