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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Fourth DCA Holds that Florida Statute Commencing Limitations Period for Property Insurance Suit at Date of Loss Does Not Apply Retroactively

Fourth DCA Holds that Florida Statute Commencing Limitations Period for Property Insurance Suit at Date of Loss Does Not Apply Retroactively

Donovan v. Florida Peninsular Ins. Co., 39 Fla. L. Weekly D 1421 (Fla. 4th DCA 2014)

The Fourth District Court of Appeal (“DCA”) recently held in favor of a homeowner in a case that posed the question of whether a statute limiting the homeowner’s ability to recover breach-of-contract damages from her insurer could be applied retroactively.

Ms. Donovan sued her insurer alleging breach of contract for the insurer’s refusal to pay property damage benefits for damages to Donovan’s home caused by a hurricane. The insurer moved to dismiss the suit based upon the five-year statute of limitations, which the insurer believed to have commenced at the time of loss (the damage to Donovan’s home). The trial court dismissed Donovan’s case, and Donovan appealed.

On appeal, the parties disagreed as to whether the five-year statute of limitations in section 95.11(2)(e), Fla. Stat., should run from the time Donovan suffered the loss, or from the time the insurer denied benefits. Although the current statute specifies that the limitations period runs from the date of loss, the Fourth DCA noted that section 95.11(2)(e) became effective after Donovan’s cause of action accrued. The statute changed the prior rule that the limitations period for a claim for breach of a property insurance contract began to run when the insurer refused to pay the claim, as the wrongful refusal to pay the claim was considered the breach that triggered the cause of action. J.J. Gumberg Co. v. Janis Servs., Inc., 847 So. 2d 1048, 1050 (Fla. 4th DCA 2003).

The Fourth DCA reasoned that section 95.11(2)(e) could not be applied retroactively unless it contained language indicating that the Legislature intended it to apply retroactively. The court examined the statute and its legislative history and noted that there was no evidence that the Legislature intended for the statute to have retroactive application. Therefore, the prior rule applied to Donovan’s claim, and her suit was timely filed within the five-year limitations period that began to run when the insurer denied benefits. The Fourth DCA reversed the trial court’s order dismissing Donovan’s complaint and reinstated her cause of action.

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