39 Fla. L. Weekly D2134a
Association — Limitation of actions — Trial court properly entered summary
judgment for FIGA in insureds’ breach of contract and declaratory judgment
action on ground that action was barred by one-year statute of limitations
GUARANTY ASSOCIATION, INC., Appellee. 2nd District. Case No. 2D13-265. Opinion
filed October 10, 2014. Appeal from the Circuit Court for Hillsborough County;
Charles E. Bergmann, Judge. Counsel: Thomas W. Thompson and A. Lee Smith of
Thompson Trial Group, P.A., Tampa, for Appellants. Hinda Klein of Conroy,
Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood,
appeal a final summary judgment in favor of Florida Insurance Guaranty
Association (FIGA). The trial court determined that the applicable statutes of
limitation barred the Homeowners’ action against FIGA for breach of contract and
declaratory judgment regarding a sinkhole loss. Because the action is time
barred under sections 95.11(5)(d) and 631.68, Florida Statutes (2009), we affirm
the final summary judgment.
Magnolia Insurance Company, was ordered liquidated on April 30, 2010. The
liquidation order provided that the deadline for filing claims against FIGA was
May 2, 2011. The Homeowners timely filed a notice of claim with FIGA on January
13, 2011, and a proof of claim on January 31, 2011.
satisfied with the amount and filed suit against FIGA on May 22, 2012. FIGA
raised the statutes of limitation as one of its affirmative defenses. The
Homeowners filed a reply with a general denial to the affirmative defenses but
did not assert that the parties had agreed to any extension of time.
that the Homeowners’ lawsuit was barred by the one-year statutes of limitation
set forth in sections 95.11(5)(d) and 631.68. Section 95.11(5)(d) requires the
commencement of suit within one year for “[a]n action against any guaranty
association and its insured, with the period running from the date of the
deadline for filing claims in the order of liquidation.” Section 631.68 provides
A covered claim as defined herein with respect to which settlement
is not effected and suit is not instituted against the insured of an insolvent
insurer or the association within 1 year after the deadline for filing claims,
or any extension thereof, with the receiver of the insolvent insurer shall
thenceforth be barred as a claim against the association and the
file suit against FIGA by May 2, 2012, within one year of the deadline for
filing claims provided in the order of liquidation. See Fla. Ins.
Guar. Ass’n v. Garcia, 614 So. 2d 684, 685 (Fla. 2d DCA 1993); Webb v.
Chambly, 584 So. 2d 216, 216-17 (Fla. 4th DCA 1991); Montano v. Fla. Ins.
Guar. Ass’n, 535 So. 2d 658, 659 (Fla. 3d DCA 1988); see also Fla.
Ins. Guar. Ass’n v. Jones, 802 So. 2d 483, 483 (Fla. 3d DCA 2001) (citing
section 631.68 and stating that a declaratory action was “barred under the
one-year limitations period for actions against either the insured or the
frame of the May 2, 2011, deadline for filing a claim and thus the May 2, 2012,
deadline to file suit. Nothing showed, or even raised an inference, that FIGA
extended the deadline for filing claims, which would have altered the deadline
for filing suit. See Huntington Nat’l Bank v. Merrill Lynch Credit
Corp., 779 So. 2d 396, 398 (Fla. 2d DCA 2000) (stating that summary judgment
is proper “when no genuine issue of material fact exists after all reasonable
inferences have been drawn in favor of the nonmovant”). Because the action
against FIGA was untimely, we affirm the final summary judgment.
sections 95.11(5)(d) and 631.68 may compel claimants to file lawsuits against
FIGA before FIGA has completed the processing of their claims and made
satisfactory payments. Such lawsuits may later prove to be unnecessary,
depending on the outcome of the claims adjustment process. A statutory change in
the limitations period to extend the time for filing such lawsuits until the
adjusting process has been completed by FIGA may be sensible, but that is a
matter for the legislature.
* * *