Fifth District Sides with the Sixth District and Finds SB-2A Does Not Apply Retroactively

The Fifth District Court of Appeals reversed a trial court’s ruling that had retroactively applied statutory changes which eliminated an insured’s right to recover attorney’s fees in a first-party property damage case under what has become known as SB-2A.

The underlying case involved a property damage claim which arose out of a loss in the summer of 2022. The policy was issued in March 2022, prior to the enactment of SB-2A. However, the lawsuit at issue was not filed until July 2023, several months after SB-2A was passed.

After settlement of the contractual damages, the parties disputed whether the insured was entitled to attorney’s fees under Florida Statute 627.428, which was abolished by SB-2A. While the District Court recognized a conflict between the Fourth District Court of Appeal (Cole v. Universal Property & Casualty Insurance Company, 363 So. 3d 1089 (Fla. 4th DCA 2023)) and the Sixth District Court of Appeal (Hughes v. Universal Property & Casualty Insurance Company, 374 So. 3d 900 (Fla. 6th DCA 2023)), it followed the Sixth District Court’s decision in Hughes and agreed that, under the Florida Supreme Court case of Mendez v. Progressive Express Insurance, 35 So. 2d 873 (Fla. 2010), the changes to the law under SB-2A are substantive and may not be retroactively applied.

In support of its decision, the Fifth District Court looked at the Supreme Court’s finding that the proper analysis looks “at the date the insurance policy was issued and not the date the suit was filed or the accident occurred, because ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’” Id. at 876.