Recently, Florida’s Fourth District Court of Appeal issued an opinion in a case involving Florida’s Statute of Limitations for property insurance claims.1 The question in this case, as well as many others recently, involves a 2011 amendment to §95.11(2)(e), which states that the limitations period in an action for breach of a property insurance contract begins to run from the date of loss. Before that change, the statute said the five year period ran from the date of breach of the contract.

The Donovan case involved a damage to a home from Hurricane Wilma in 2005. The policyholder filed a claim and it proceeded to appraisal and damages were awarded and paid. Later, when the policyholder applied for a permit for roof repairs, it was denied because the roofing material involved in the appraisal award was no longer available. The policyholder requested Florida Peninsula pay additional insurance proceeds to complete repairs in compliance with the local code. Florida Peninsula denied the policyholder’s additional request around January 5, 2010. The lawsuit was filed in July 2011.

The parties in Donovan agreed the limitations period was five years, but disagreed on when the period to file the lawsuit began to run.

Florida Peninsula filed a motion to dismiss the complaint on the basis of the statute of limitations and late notice. The insurance carrier argued the Statute of Limitations amendment in 2011 applied retroactively to the 2005 Hurricane Wilma claim. The insurance carrier also argued that by the time the lawsuit was filed in July 2011, the time period had passed and the case should be dismissed as time-barred by the Statute of Limitations.

The trial court granted Florida Peninsula’s motion and dismissed the complaint with a very generic order that stated: “to wit: Statute of Limitations and Late Notice,” and the policyholder appealed. The Fourth District Court of Appeal reversed, holding:

Although the parties do not raise the possibility, it appears that §95.11(2)(e) is actually a statute of repose, as it provides for a particular event that starts the limitations period running. Statutes of repose have been held to be substantive in nature. As such, in order to apply retroactively, the statute must reflect a clear legislative intent for retroactive application.

In sum, the court erred in applying §95.11 (2)(e) retroactively in the absence of evidence of the legislature’s intent for such application.

The court also found that the trial court should not have dismissed the lawsuit based on the policyholder’s alleged failure to 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.

The appellate court noted that the record on appeal – consisting of the complaint and Florida Peninsula’s Motion to Dismiss – did not establish whether the contract contained a notice of loss provision, let alone whether the policyholder failed to comply with it.

The policyholder’s case was remanded and the complaint reinstated and ordered to proceed. It is surprising to see so many cases still being litigated on this retroactivity argument, particularly since there have been numerous cases holding the 2011 amendment to §95.11(2)(e) does not apply retroactively. For a statute’s application to apply retroactively to cases predating the amendment, the statute must contain clear intent that was what the Legislature meant. The 2011 amendment to §95.11(2)(e) contains no retroactivity language.

If you have a question about the timing of when the Statute of Limitations may run in your claim, be sure to consult with experienced representatives to review the situation.


1 Donovan v. Florida Peninsula Ins. Co., 2014 WL 3189914 (Fla. 4th DCA July 9, 2014).

  • David Bierman

    This is our case, the reason late notice was not addressed in the motion to dismiss is that it was waived as this claim went to appraisal.

    The issue now is that the appraisal panel selected a method to repair the roof that the City rejected the permit. With the current case law that Ordinance and Law is not part of the appraisal as it has to be accrued we are confident that we will make this client whole with the contract for her roof and the rejected permit for the method of repairs the appraisal panel suggested