39 Fla. L. Weekly D1421a
Limitation of actions — Error to dismiss with prejudice homeowner’s complaint
against insurer alleging breach of property insurance contract on ground that
claim was barred by statute of limitations and on ground that insured failed to
comply with notice of loss provision of contract — Statute providing that
limitations period in action for breach of property insurance contract begins
running from date of loss does not apply retroactively — Whether insured failed
to comply with notice of loss provision in contract was matter outside four
corners of complaint and, accordingly, was not proper basis for dismissal
4th District. Case No. 4D11-4648. July 9, 2014. Appeal from the Circuit Court
for the Fifteenth Judicial Circuit, Palm Beach County; Thomas H. Barkdull,
Judge; L.T. Case No. 502011CA011065XXXXMB. Counsel: Russel Lazega and Yasmin
Gilinsky of Florida Insurance Advocates, Dania Beach, for appellant. Robert S.
Horwitz of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer,
P.A., West Palm Beach, and Diane H. Tutt of Conroy, Simberg, Ganon, Krevans,
Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
cause of action for breach of a property insurance contract. The trial court
dismissed the suit based on two grounds: the statute of limitations and a
finding that Donovan failed to comply with the insurance contract’s notice of
loss provision. We agree with Donovan that the judicial act of dismissal was not
warranted on either ground, and we reverse and remand for further proceedings.
Company (Florida Peninsula), for breach of property insurance contract. Donovan
alleged that she purchased homeowner’s insurance from Florida Peninsula, and
that the policy included hurricane coverage. After her home was damaged by
Hurricane Wilma in October 2005, an appraisal award was entered by an umpire.
However, Donovan’s application for a local government permit to repair her roof
was denied because the roofing material envisioned in the appraisal was no
longer being manufactured. Thereupon Donovan requested from Florida Peninsula
the remaining insurance benefits to complete the repairs in compliance with
applicable code. In January 2010, Florida Peninsula refused and Donovan filed
the underlying lawsuit in July of 2011.1
than five years after the 2005 loss and was time-barred by section 95.11(2)(e),
Florida Statutes (2011), and that Donovan provided late notice of loss. The
court entered an extremely brief order granting the motion based on the grounds
argued by Florida Peninsula, “to wit: Statute of Limitations and Late Notice.”
Donovan’s contract action is five years. Instead, they dispute whether the
limitations period began running when the cause of action accrued (when Florida
Peninsula denied coverage) or on the date of loss (October, 2005).
action accrued. This statutory enactment provided that the limitations period in
an action for breach of property insurance contract began running from the
date of loss. Prior to the effective date of section 95.11(2)(e), a suit
for breach of a property insurance contract began running from the date the
cause of action accrued — that is, when coverage was alleged to have
been erroneously denied. See § 95.11(2)(b), Fla. Stat. (2010) (providing
for a five-year limitations period for “[a] legal or equitable action on a
contract, obligation, or liability founded on a written instrument”); §
95.031(1), Fla. Stat. (2010) (providing that, unless otherwise specified, the
limitations period begins running when the cause of action accrues, which is
“when the last element constituting the cause of action occurs”); J.J.
Gumberg Co. v. Janis Servs., Inc., 847 So. 2d 1048, 1050 (Fla. 4th DCA 2003)
(“In regard to insurance contracts, a specific refusal to pay a claim is the
breach which triggers the cause of action and begins the statute of limitations
running.”) (citation omitted).
Donovan’s action would be retroactive. To the extent section 95.11(2)(e) is
properly regarded as a statute of limitations, as the parties believe,2 it could not be applied retroactively unless it was
clear the legislature intended it to be given such application. See Melendez
v. Dreis & Krump Mfg. Co., 515 So. 2d 735, 736 (Fla. 1987) (“It is well
settled that before a statute of limitations can be applied retroactively, there
must be a clear manifestation of legislative intent that the statute be given
retroactive effect.”); Homemakers, Inc. v. Gonzales, 400 So. 2d 965, 967
(Fla. 1981) (“[A] statute of limitations will be prospectively applied unless
the legislative intent to provide retroactive effect is express, clear and
manifest.”); Garofalo v. Cmty. Hosp. of S. Broward, 382 So. 2d 722, 724
(Fla. 4th DCA 1980) (“We start with the basic proposition that a shortening of
any statute of limitations will be given retroactive application only upon the
showing of clear intent by the Legislature.”) (citations omitted). Section
95.11(2)(e) does not contain evidence of the legislature’s intent for
retroactive application, on its face or in its legislative history. Nor does it
contain a savings clause, which would allow for a period of time to file suit
for those with existing causes of action — such clauses indicate the
legislature’s intent for retroactive application. Carpenter v. Fla.
Cent. Credit Union, 369 So. 2d 935, 937 (Fla. 1979).
absence of evidence of the legislature’s intent for such application.
comply with a notice of loss provision in the contract. “The trial court cannot
go beyond the four corners of the complaint in deciding the merits of a motion
to dismiss. When confronted with a motion to dismiss, the court is required to
take the allegations of the complaint as true and to decide only questions of
law.” Rohatynsky v. Kalogiannis, 763 So. 2d 1270, 1272 (Fla. 4th DCA
2000) (citations omitted). However, “[a] trial court is not bound by the four
corners of the complaint where the facts are undisputed and the motion to
dismiss raises only a pure question of law.” Metro. Cas. Ins. Co. v.
Tepper, 969 So. 2d 403, 405 (Fla. 5th DCA 2007) (citation omitted).
to dismiss, with their respective exhibits. The record before us does not
establish whether the contract contained a notice of loss provision and whether
Donovan failed to comply with such a provision. Accordingly, the trial court
erred in ordering a dismissal on this ground.
entitled to a dismissal with prejudice. We therefore reverse the order
dismissing Donovan’s complaint and reinstate her cause of action for further
1The record is unclear as to the exact date
coverage was denied, but it appears the denial occurred sometime on or after
January 5, 2010, when Donovan’s claims adjuster requested additional coverage.
2Although the parties do not raise the
possibility, it appears that section 95.11(2)(e) is actually a statute of
repose, as it provides for a particular event that starts the limitations period
running. See Carr v. Broward Cnty., 505 So. 2d 568, 570 (Fla. 4th DCA
1987) (“The period of time established by a statute of repose commences to run
from the date of an event specified in the statute. . . . At the end of the time
period the cause of action ceases to exist.”). Statutes of repose have been held
to be substantive in nature. See Philip Morris USA, Inc. v. Hess, 95 So.
3d 254, 260 (Fla. 4th DCA 2012). As such, in order to apply retroactively, the
statute must reflect a clear legislative intent for retroactive application.
Pembroke Lakes Mall Ltd., 4D11-4005, 2014 WL 714706, at *4 (Fla. Feb. 26,
2014) (citation omitted).
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