FSC Squashes 3d DCA on PIP Statute Retroactivity!

Oh oh -- the 3d DCA got "squashed."

Hold on, I meant to say an opinion of the 3d DCA got quashed:

Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.

Actually, the 3d already got quashed, squashed, whatever once in this case back in February.

This new opinion is revised and clarified as to the attorney's fees on remand, but reaches the same conclusion.

3d DCA Reversed on PIP Presuit Notice Requirements.

The coffee-swilling in the bunker has reached fever pitch this morning, as the Florida Supreme Court has just reversed the 3d DCA on the retroactive application of PIP pre-suit statutory notice requirements.

Although the statute was intended to be applied retroactively, it impairs vested rights and imposes substantial new burdens:

In agreeing with the insureds that the statute cannot be applied retroactively, we conclude that the most problematic provisions of the statute are those which (1) impose a penalty, (2) implicate attorneys’ fees, (3) grant an insurer additional time to pay benefits, and (4) delay the insured’s right to institute a cause of action.

Basically the 3d messed up in finding the statute to be merely procedural, as opposed to substantive:

Based on our above analysis, we conclude that the statutory presuit notice provision is not “procedural” and should not be given retroactive application. Consequently, we conclude that the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not “violate the general rule against retrospective operation.” Menendez, 979 So. 2d at 331.

You can read Judge Rothenberg's original opinion here.

(Big props to Bob Tilghman btw.)