The statute of limitations issue arises in property insurance disputes from time to time, and was a particularly common issue resulting from the 2004 and 2005 hurricanes in South Florida. If parties disagree on the date the statute of limitations runs under a policy, policyholders may file an action seeking a declaration from a court. The Florida statute of limitations applicable to the 2004 and 2005 hurricanes is sometimes difficult to determine since it begins to run five years from the date of breach of contract by the insurer.

In a recent case before the U.S. District Court for the Middle District of Florida, the policyholder sought a declaration that the statute began to run on a particular date when the insurer breached the contract. Fox Hollow Condo. Assoc., Inc. v. Empire Indemnity Ins. Co., No. 2:11-cv-131, 2011 WL 2222174 (M.D. Fla. 2011). The insurer asked the Court to strike that portion of the complaint, arguing there was no need for the Court to make such a declaration since the insurer conceded that the statute of limitations was not in dispute or at issue between the parties.

The insurer’s counsel agreed in writing that “Empire [] would not raise a statute of limitations defense if Plaintiff filed a lawsuit on its Hurricane Wilma claim before February 24, 2011.” Empire also stated in writing that it “will not raise a statute of limitations defense.” The insured argued that unless a written stipulation states that Empire will not raise the issue of filing prematurely or that the insured missed the statute of limitations, the issue remained properly before the Court. The insured argued that the Court could enter an Order deeming the issue waived.

The Middle District Court held that the insurer’s counsel’s written statements that a statute of limitations defense would not be asserted were sufficient to constitute a stipulation. The Court went on to state that the statute of limitations issue was deemed waived by the insurer, and it could not be raised in the case.