Florida used to have a statute of limitations for insurance lawsuits that was five years from the date of the breach of contract. As a result, some cases would be filed nearly a decade after the loss. Not anymore, as one condominium and its lawyers learned in a federal court decision last week.1
A federal judge gave the background leading to the statute of limitations defense:
Oceania is the owner of the property located at 16485 Collins Ave., Sunny Isles Beach, FL 33160. On September 10, 2017, the property sustained a loss as a result of Hurricane Irma…At that time, the property was insured against certain losses under two active policies independently issued by the Defendants. Seeking coverage from the Defendants, Oceania complied with the policies’ post-loss obligations and provided the Defendants with a full account of the damages sustained by the property. However, on November 4, 2021, the Defendants formally denied Oceania’s claims.
Approximately ten months later, on August 29, 2022, Oceania submitted to each Defendant a notice of intent to enter litigation pursuant to Fla. Stat. § 627.70152(3). Oceania’s notices specified that it intended to file a lawsuit upon expiration of the safe harbor provision in § 627.70152(3)(a), which requires that ‘notice must be given at least 10 business days before filing [a] suit’ arising under a residential or commercial property insurance policy. Per § 627.70152(4), another provision of the same statute, the Defendants were required to ‘respond in writing within 10 business days after receiving’ Oceania’s notices. Because of the intervening Labor Day holiday, the Defendants’ response deadline fell on September 13, 2022. On that day, the Defendants responded to Oceania’s notices of intent by requesting re-inspection of the property in accordance with § 627.70152(4). The Defendants’ responses also made Oceania settlement offers in the amount of $500 each, specifying that the offers were made ‘to avoid litigation and because [the Defendants were] required to [make them] under Fla. Stat. § 627.70152, if such statute applie[d].’
Critically, the statute of limitations on Oceania’s claim, as set forth in Fla. Stat. § 95.11(2), expired on September 12, 2022, one day before the Defendants’ responses to the notices were due. However, rather than file suit on September 12, 2022, Oceania continued to engage with the Defendants pursuant to the pre-suit procedures outlined in § 627.70152. On September 15, 2022, Oceania emailed the Defendants acknowledging their request for reinspection of the property and attempting to coordinate dates for reinspection within the fourteen-day period set forth in § 627.70152(4). Although the parties engaged in some back-and-forth on the scheduling, no reinspection occurred, and on October 4, 2022, upon the lapse of fourteen business days, Oceania filed the instant lawsuit.
The purpose of this blog is not to turn readers, policyholders, adjusters, and contractors into lawyers. The simple lesson from this case is found in this statement by the court:
The circumstances outlined by Oceania—amounting to a last-minute choice between complying with § 627.70152 in the hope that its tolling provision would apply and timely filing suit within the statute of limitations— are not the sort to which equitable tolling has been applied….As explained in more detail above with respect to equitable estoppel, Oceania does not point to any facts that indicate it was misled or lulled, by the Defendants or otherwise, into waiting until two weeks before the statute of limitations deadline to begin moving on its claim. Further, there is nothing extraordinary about the circumstances presented by Oceania. At most, they amount to a difficult legal decision whose potentially serious consequences could have been avoided if Oceania had not waited until the last moment to pursue its claim. See, e.g., Washington v. Keitz, ROSENBERG, 2015 U.S. Dist. LEXIS 196778 (S.D. Fla. June 30, 2015) (Rosenberg, J.) (rejecting equitable tolling where plaintiffs’ counsel waited “over two weeks” to address an issue arising from a failed attempt to file complaint “two days before the statute of limitations expired”); Fowler v. Coad, 2015 U.S. Dist. LEXIS 52765 (N.D. Fla. Apr. 22, 2015) (‘[W]hat prevented [plaintiff] from bringing a timely action against Defendants was his failure to file the Complaint until two days before the statute of limitations expired.’); Hummer v. Adams Homes of Nw. Fla., Inc., 2014 U.S. Dist. LEXIS 28930 (M.D. Fla. Mar. 6, 2014) (‘Equitable tolling is not appropriate where the causal connection between nonconforming conduct and Plaintiffs’ injuries/damages was made known to Plaintiffs well within the statute of limitations.’). Finally, this is not a case where an otherwise timely assertion of rights has been made in the incorrect forum.
When a claim is denied, when significant amounts claimed are not paid, when there is significant delay, when the insurance company goes silent, time is of the essence, and quality legal counsel should be retained. Last minute turning a file over for a lawsuit invites mistakes.
Many states allow time periods of just one or two years. So, Florida still has a long statute of limitations compared to other states. Significant claims that appear to be heading for a possible lawsuit need to be sent to competent counsel months in advance. The judge made a good point—do not wait until the last minute to file a lawsuit.
Losing a $13 million claim because of a technical statute of limitations lapse is going to be tough for a board to explain to condominium members.
Thought For The Day
I hate last-minute shopping, it’s always unsuccessful.
1 Oceania III Condominium Association, Inc. v. Westchester Surplus Lines Ins. Co., No. 22-23681, — F. Supp.3d — (S.D. Fla. Feb. 24, 2023).