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 almost a decade after the loss. Not anymore, as a condominium and its lawyers learned in a federal court ruling last week.1
A federal judge gave the background to the statute of limitations defense:
Oceania owns the property located at 16485 Collins Ave., Sunny Isles Beach, FL 33160. On September 10, 2017, the property suffered a loss as a result of Hurricane Irma…At that time, the property was insured against certain losses under two active policies that independently issued by the defendants. Oceania sought coverage from the Defendants and complied with the insurers̵7; post-loss obligations and provided the Defendants with a full account of the damage sustained to the property. However, on November 4, 2021, the defendants formally denied Oceania’s claim.
Approximately ten months later, on August 29, 2022, Oceania sent each defendant a notice of intent to commence litigation pursuant to Fla. Stat. § 627.70152(3). Oceania’s notices stated that it intended to file a lawsuit when the safe harbor provision of § 627.70152(3)(a) expires, which requires that “notice must be given at least 10 business days prior to filing [a] lawsuit” arising under a residential or commercial property insurance policy. Pursuant to § 627.70152(4), another provision of the same law, the defendants were required to “respond in writing within 10 business days after receiving” Oceania’s notices. Because of the intervening Labor Day weekend, the defendants’ response period fell on September 13, 2022. On that day, the defendants responded to Oceania’s Notices of Intent by requesting a re-inspection of the property pursuant to § 627.70152(4). The defendants’ responses also set forth Oceania’s settlement offers in the amount of $500 each, and specified that the offers were made “to avoid litigation and because [the Defendants were] needed for [make them] under Fla. Stat. § 627.70152, if such statute is applicable[d].’
Critically, the statute of limitations for Oceania’s claims, set forth in Fla. Stat. § 95.11(2), expired on September 12, 2022, one day before the defendant’s response to the notices was to be filed. However, instead of filing suit on September 12, 2022, Oceania continued to cooperate with Defendants pursuant to the pre-suit procedures described in § 627.70152. On September 15, 2022, Oceania sent an email to the defendants confirming their request for a re-inspection of the property and attempting to coordinate a re-inspection date within the fourteen day period set forth in § 627.70152(4). Although the parties engaged in some scheduling back-and-forth, no new inspection took place, and on October 4, 2022, after the lapse of fourteen business days, Oceania filed the instant suit.
The purpose of this blog is not to turn readers, policyholders, adjusters and contractors into lawyers. The simple lesson from this case can be found in this statement from the court:
The circumstances outlined by Oceania—representing a last-minute choice between complying with § 627.70152 in the hope that its tolling provision would apply and timely trial within the statute of limitations—are not the kind to which equitable tolling has been applied… As explained more detailed above with respect to equitable estoppel, Oceania does not point to any facts suggesting that it was misled or cajoled, by the defendants or otherwise, into waiting until two weeks before the statute of limitations to begin moving its claim. Furthermore, 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. Looks, for example, Washington v. Keitz, ROSENBERG, 2015 US Dist. LEXIS 196778 (SD Fla. June 30, 2015) (Rosenberg, J.) (rejecting reasonable toll where plaintiff’s counsel waited “over two weeks” to address an issue arising from a failed attempt to file a complaint “two days before the statute of limitations has expired”); Fowler v. Coad, 2015 US Dist. LEXIS 52765 (ND Fla. Apr. 22, 2015) (‘[W]hat prevented [plaintiff] from timely filing an action against Defendant 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 US Dist. LEXIS 28930 (MD Fla. Mar. 6, 2014) (“Equitable tolling is not appropriate when the causal connection between the deviant conduct and the plaintiffs’ injuries was made known to the 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 wrong forum.
When a claim is denied, when significant amounts claimed are not paid, when there are significant delays, when the insurance company goes silent, time is of the essence and quality legal advice should be sought. Turning a file at the last minute for a trial invites mistakes.
Many states allow time periods of only one or two years. So Florida still has a long statute of limitations compared to other states. Substantial claims that appear to be headed for a possible trial must be sent to competent counsel months in advance. The judge made a good point – don’t wait until the last minute to file a lawsuit.
Losing a $13 million claim due to the expiration of a technical statute of limitations will be difficult for a board to explain to condominium members.
I hate last minute shopping, it’s always a fail.
1 Oceania III Condominium Association, Inc. v. Westchester Surplus Lines Ins. Co.No. 22-23681, — F. Supp.3d — (SD Fla. Feb. 24, 2023).