In a recent string of motions filed be counsel for insurance carriers, there have been attacks on policies held by seasonal residents.
The crux of the carrier’s argument rests in the all-but-forgotten Fla. Stat. § 627.401(2), which states: “No provision of this part of this chapter applies to: … Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code.” Notably, Fla. Stat. § 627.428 falls within the noted part of the statute chapter, and Fla. Stat. § 627.428 allows a policyholder to obtain compensation for attorney fees and costs upon rendition of a favorable judgment.
For permanent residents within Florida, this particular statute will likely not have any effect on your rights under Florida Law as your policy was likely delivered by your carrier to your Florida address. However, if your policy was sent/delivered to an out-of-state address, the carriers have taken the position that you may not be afforded the protections under Fla. Stat. § 627.428.
This position does not take a true look at the wording of the statutory language. In order for Fla. Stat. § 627.401(2) to apply, the policy must not be issued for delivery in the State of Florida nor delivered in Florida. This is a two-step process/evaluation, and this process was utilized in both Lopez v. State Farm,1 as well as, East Coast Insurance Company v. Cooper.2 In both cases, the court made a determination of where the policy was issued for delivery and where the policy was actually delivered.
In Lopez, the court was tasked with evaluating Fla. Stat. § 627.401(2) as it related to Fla. Stat. § 627.428 in an action brought by Lopez against his auto carrier. According to the facts of the case, State Farm Mutual Automobile Insurance Company provided an auto policy to Lopez that was issued in Texas and delivered in Texas prior to Lopez moving to Florida. Ultimately, the Third District Court of Appeal found Fla. Stat. § 627.428 did not apply by way of Fla. Stat. § 627.401(2), concluding that Lopez’s policy was both issued for delivery and delivered outside of Florida. Id.
In Cooper, the court evaluated the implication of “issued for delivery” as outlined in Fla. Stat. § 627.401(2) in conjunction with Fla. Stat. § 627.428. The Third District found, despite the policy being delivered out of state (New York), that the policy was “issued for delivery” to satisfy Fla. Stat. § 627.401(2), and the Coopers were entitled to attorney’s fees pursuant to Fla. Stat. § 627.428. Id at 1325.
Seasonal residents of Florida should be aware of the implications of Fla. Stat. § 627.401(2) when choosing an insurance carrier, and the impact it can have on the protections afforded under Fla. Stat. § 627.428 in the future.
1 Lopez v. State Farm, 139 So.2d 402 (Fla. 3d DCA 2014).
2 East Coast Ins. Co v. Cooper, 415 So.2d 1323 (Fla. 3d DCA 1982).