19 Fla. L. Weekly Supp. 725a
Online Reference: FLWSUPP 1909STRIInsurance — Property — Limitation of actions — 2011 statutory amendment changing event for commencement of limitations period for claims for breach of property insurance contracts from date of breach by insurer to date of casualty loss does not apply retroactively to claim that arose in 2011 when insurer denied any further liability for damages that resulted from 2006 incident
PHILLIP DAVID STRICKLAND, an individual, Plaintiff, vs. AMERICAN FAMILY HOME INSURANCE COMPANY, a Florida corporation, Defendant. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2011-CA-7856-XXXX, Division CV-H. April 11, 2012. Waddell A. Wallace, III, Judge.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS COMPLAINT
This case is before the Court for consideration of the Motion to Dismiss Complaint filed on behalf of Defendant, American Family Home Insurance Company.
Defendant argues that the claim of Plaintiff, Phillip D. Strickland, is barred by the statute of limitations set forth in Section 95.11(2)(e), Florida Statutes (2011), as amended by the legislature in 2011. The amendment, effective May 17, 2011, changed the event for commencement of the limitations period for claims for breach of a property insurance contract from the date of breach by the insurance carrier — the date of accrual — to the date of the underlying casualty loss.
In the complaint, Plaintiff alleges a casualty loss that took place on July 4, 2006. The complaint further alleges that the cause of action did not accrue until June 1, 2011, when the Defendant denied any further liability or coverages for the damages that resulted from the July 4, 2006, incident. The complaint was filed September 28, 2011, within a year of the alleged breach of the insurance policy, but more than the allowed five years after the alleged loss. In Durring v. Reynolds, Smith & Hills, 471 So. 2d 603 (Fla. 1st DCA 1985), the First District Court of Appeal recognized that it is “well established that a new statute of limitations which shortens the period for filing a cause of action is presumed not to apply retroactively to causes of action which have already accrued unless there is a clear expression of legislative intent to give the new statute retroactive effect.” 471 So. 2d at 607. The First District also noted that “statutes of repose like the one involved in this case are presumed not to be retroactive absent a clear expression of legislative intent to the contrary.” Id. at 607.
The Court finds the disposition of the pending motion to be governed by Dade County v. Ferro, 384 So. 2d 1283 (Fla. 1980). In this action, the Supreme Court held that where “a statute of limitations is measured by occurrence rather than accrual of a cause of action it must be assumed that some claim arose upon the occurrence of the event causing injury.” 384 So. 2d at 1286. Under Section 95.11(2), Florida Statutes, as amended in 2011, the beginning of the limitations period is measured by the occurrence of the underlying casualty loss. Accordingly, under Dade County v. Ferro and the earlier decision in Foley v. Morris, 339 So. 2d 215 (Fla. 1976), Plaintiff is deemed to have had a vested right in his claim as of the occurrence of the casualty loss. Accordingly, to apply the statute of limitations or repose enacted in 2011 would be to apply the statute of limitations or repose retroactively to a pre-existing claim. Under Foley, a new statute of limitations that shortens the time for filing a cause of action is presumed not to apply retrospectively to causes of action already existing unless there is a clear expression of legislative intent to give the new statute retroactive effect. 339 So. 2d at 216. Nothing in Chapter 2011-39, Laws of Florida, addresses the retroactivity of the amendment and the text of the amendment changing the statute of limitations is substantially the same as the text at issue in Foley that was deemed by the Supreme Court not to demonstrate a legislative intent that the amendment to the limitations period be applied retroactively. Given this premise, and applying Dade County v. Ferro and Foley, the Court concludes that the 2011 amendment to the statute of limitations or repose should not be applied retroactively to Plaintiff’s claim arising from a loss occurring July 4, 2006. The Court, therefore, need not determine whether the period from May 17, 2011, through June 30, 2011, would be a reasonable time allowable to Plaintiff for commencing an action following the 2011 amendment.
Accordingly, for the reasons stated, it is ORDERED:
1. Defendant’s Motion to Dismiss Complaint is DENIED.
2. Defendant shall serve an answer to Plaintiff’s complaint within 20 days of the date of entry of this order.
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