This post expounds upon last week’s post which touched upon statute of limitations concerns in the property insurance contract context. As noted in last week’s post: “In the good ol’ days, ‘a breach of contract action on an insurance contract accrue[d] on the date the contract [wa]s breached,’ but Section 95.11(2)(e) of the Florida Statutes ‘changed this prior understanding… , designating the date of loss as the new date from which the limitations period would run.’”1 The focus of this week’s post is whether Section 95.11(2)(e) of the Florida Statutes is to be applied prospectively or retroactively.
Subsection (e) of Section 95.11(2) of the Florida Statutes “was signed into law on May 17, 2011. Prior versions of § 95.11(2) … did not expressly provide the date from which the five-year limitations period ran.”2 And “[p]ursuant to [S]ection 95.031… , absent a contrary statutory provision a statute of limitations runs ‘from the time the cause of action accrues,’ which is ‘when the last element constituting the cause of action occurs.’”3 Various judges have decided that “‘in light of the presumption against retroactive application, the Court does not find express, clear, or manifest legislative intent for the May 17, 2011, amendment to § 95.11(2) to apply retroactively.’”4
In sum, if the insurance contract you find yourself suing under started before May 17, 2011, the statute of limitations clock started ticking on the date your cause of action against the insurance company accrued, not the date of the subject loss. More often than not, the date your cause of action against the insurer accrues is the date the insurer decides to deprive you of your benefits. Conversely, if the insurance contract you find yourself suing under started after May 17, 2011, case law suggests the statute of limitations clock started ticking on the date of the subject loss, not on the date benefits or good faith investigation were wrongfully delayed, withheld or denied.
Remember, Chapter 95 of the Florida Statutes sets forth deadlines for you to bring suit or risk losing out on an otherwise perfectly good cause of action. Best course to avoid losing out? First, do not dilly-dally with post-loss duties or with reaching out to an experienced insurance professional (e.g., attorney and/or public adjuster). Second, if you believe an insurance company is not acting in good faith during claim adjustment, do not wait until the last minute (e.g., the third or fourth year following the subject loss) to consult with an experienced policyholder attorney.
To read previous posts in my series on insurance policy conditions, click here.
1 W. Palm Gardens Villas Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co., No. 11-23912-Civ, 2012 WL 3017083 at *3 (S.D. Fla. June 25, 2012) (internal citations omitted). See also http://www.leg.state.fl.us/statutes/, which is a free compilation of the Florida Statutes from 1997 through the present.
2 W. Palm Gardens, 2012 WL 3017083 at *2.
3 Olear Org., Inc. v. N. Pointe Ins. Co., No. 6:12-cv-850-Orl-28KRS, 2012 WL 5471789 at *2 (M.D. Fla. Nov. 9, 2012).
4 Id. (quoting W. Palm Gardens)
