Florida Insurance Guaranty Association v. Devon Neighborhood Association, Inc., ___ So. 3d ___, 36 Fla. L. Weekly S311 (Fla. 6/30/11)
The trial court denied FIGA’s motion to compel arbitration of a condominium association’s claim for hurricane damage because the association had not been provided with notice, under Section 627.7015, Florida Statutes, of the availability of mediation. When the statute was enacted, it did not apply to commercial residential insurance policies. After the policy was issued, the statute was amended to expand its scope to commercial residential policies and to provide a penalty for the failure to comply with its notice provisions; namely, forfeiture of the insurance company’s right to compel appraisal. The Fourth District Court of Appeal affirmed based on its conclusion that retroactive application of the statute did not violate the constitution. The Florida Supreme Court reversed. The statute is substantive. Therefore, a two pronged analysis was necessary: First, whether the legislature manifested a clear intent to apply the statute retroactively, and second, whether retroactive application of the statute violated the constitution. The Fourth District erred by considering only the second prong of the test, which comes into play only if the first prong is satisfied. In this case, the amendment to the statute provided an effective date, “evidence rebutting intent for retroactive application of a law.” The “language, structure, purpose, and legislative history of the enactment” did not reveal clear retroactive intent on the part of the legislature. As a result, the court quashed the decision of the Fourth District Court of Appeal.