Jurisdiction: Florida Fourth District Court of Appeal
Case No.: 4D2024-1332
Lower Tribunal Case No.: 502022CA001699XXXXMB
Date: February 25, 2026
Lower Court: Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Judge Gerard J. Curley Jr.
In this 2026 opinion, the Fourth District Court of Appeal revisited the now familiar battleground of Florida property insurance litigation: pre-suit notice requirements under section 627.70152, Florida Statutes.
The dispute began with a plumbing leak during the 2020–2021 policy period. Water reportedly gushed from a seam in the insured’s dining room tile, leading to significant interior damage. The insured:
- Performed initial mitigation
- Retained a public adjuster
- Hired a plumber
- Reported the loss during the policy period
The insurer inspected the property but denied coverage in March 2021, citing failure to comply with post loss obligations. The insured later submitted additional documentation and proof of loss.
When payment was not forthcoming, she filed suit for breach of contract.
A jury ultimately awarded $50,000 in covered damages, and final judgment was entered for $42,520.66 after deductible and prior payment offsets.
But that verdict did not survive appellate review.
The Central Legal Issue: Pre-Suit Notice Under § 627.70152
The insurer argued the case should never have reached trial.
Why?
Because the insured failed to file a Notice of Intent to Initiate Litigation with Florida’s Department of Financial Services before filing suit a requirement imposed by section 627.70152, effective July 1, 2021.
The statute provides:
- A claimant must give at least 10 business days’ written notice before filing suit.
- If notice is not given, the court must dismiss the suit without prejudice.
The insured did not dispute that no pre-suit notice was filed.
Instead, she argued the statute did not apply because:
- The policy was issued before the statute became effective.
- The policy had also expired before the statute took effect.
The Court’s Analysis: Applying Cole Retroactively
The Fourth DCA relied heavily on its earlier decision in Cole v. Universal Property & Casualty Insurance Co..
In Cole, the court held that:
- Section 627.70152 is procedural, not substantive.
- Procedural statutes apply retroactively.
- Therefore, the pre suit notice requirement applies even to policies issued before July 1, 2021.
The insured in this case attempted to distinguish Cole by arguing that her policy was not “existing” at the time of enactment because it had already expired.
The Fourth DCA rejected that argument.
The court reasoned:
- The policy governed losses occurring during its term.
- The lawsuit was filed after the statute became effective.
- The pre suit notice requirement attaches to the act of filing suit, not the issuance date of the policy.
Because no notice was filed, dismissal was mandatory under subsection (5).
The Result
The appellate court:
- Reversed the final judgment
- Remanded with instructions to dismiss the complaint without prejudice
Importantly, the dismissal was without prejudice, meaning the insured may refile provided statutory requirements are satisfied.
The court affirmed all other issues, including challenges related to jury instructions and post loss obligations.
Why This Case Matters
This decision reinforces several critical realities in Florida property insurance litigation:
1️⃣ Pre-Suit Notice Is Not Optional
Failure to comply with § 627.70152 will result in dismissal even after a full jury trial and verdict.
2️⃣ Retroactivity Is Settled (At Least in the Fourth DCA)
The Fourth District continues to apply Cole consistently, treating the statute as procedural and retroactive.
3️⃣ Expired Policies Offer No Safe Harbor
The argument that a policy expired before July 1, 2021 does not avoid the notice requirement.
4️⃣ Procedure Can Override Substantive Victory
Here, the insured won at trial but lost on appeal due to procedural noncompliance.
Practical Implications for Florida Homeowners & Attorneys
For homeowners:
- Always confirm whether a statutory notice is required before filing suit.
- Even strong cases can collapse due to procedural missteps.
For attorneys:
- Review § 627.70152 compliance at intake.
- Confirm DFS notice filing and 10 business day timing.
- Anticipate dismissal motions if notice was not filed.
For insurers:
- Preserve and timely assert pre suit notice defenses.
- Renew motions if controlling law develops (as happened after Cole).
The Bigger Picture
Florida’s property insurance landscape has undergone sweeping statutory reform in recent years. Courts are increasingly enforcing those procedural guardrails strictly.
This case sends a clear message:
Procedural statutes governing litigation conduct apply at the time the lawsuit is filed not when the policy was issued.
In Florida’s evolving insurance environment, compliance timing matters as much as coverage language.
Today’s Insight
“The law helps the vigilant, not those who sleep on their rights.”
— Cicero
In Florida property insurance disputes, vigilance now includes strict adherence to statutory pre suit requirements.