UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22895-CIV-ALTONAGA/Damian

JESUS ROCK MINISTRIES, 

INC., 

Plaintiff,

v. 

SCOTTSDALE INSURANCE 

COMPANY, 

Defendant.

____________________________/ 

ORDER

THIS CAUSE came before the Court on Defendant, Scottsdale Insurance Company’s

Motion for Summary Judgment [ECF No. 50], filed on August 22, 2023. Plaintiff, Jesus Rock 

Ministries, Inc. filed a Response [ECF No. 51]; to which Defendant filed a Reply [ECF No. 54]. 

The Court has carefully considered the record, the parties’ written submissions,1 and applicable 

law. For the following reasons, the Motion is granted. 

I. BACKGROUND

This is an action for damages arising from losses Plaintiff sustained during Hurricane Irma 

in September 2017. (See SOF ¶ 2; Resp. SOF ¶ 2). At the time of the losses, Plaintiff’s property 

was insured under a policy issued by Defendant. (See SOF ¶ 1; Resp. SOF ¶ 1). The policy

provided information about how to report claims (see SOF ¶¶ 13–17), notice requirements (see id.

¶ 18), limitations on legal actions (see id. ¶ 20), and limitations on coverage (see id. ¶¶ 21–22). 

1 The parties’ factual submissions include Defendant’s Statement of Undisputed Material Facts [ECF No. 

49] (“SOF”); Plaintiff’s Response to Defendant’s Statement of Undisputed Material Facts [ECF No. 52] 

(“Resp. SOF”); and Defendant’s Reply Statement of Undisputed Material Facts [ECF No. 53] (“Reply 

SOF”).

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 1 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

2

Although Plaintiff “notified Defendant’s agent of the loss a day or two after the date of 

loss” (Resp. SOF ¶ 19 (citation omitted)), Plaintiff did not notify Defendant directly until August 

2020 (see SOF ¶ 9). Once Defendant was directly notified, it sent an independent claim adjuster 

to inspect the property. (See SOF ¶¶ 11–12; Resp. SOF ¶¶ 11–12). Defendant’s expert, relying 

on the inspection report, concluded there may have been causes of the damage that were 

“completely unrelated to Hurricane Irma” but noted that his “conclusions and opinions were based 

on the limited information available to him at the time of his Report.” (SOF ¶¶ 27, 31–32; Resp. 

SOF ¶¶ 27, 31–32). 

Plaintiff filed an initial Complaint [ECF No. 1] on September 9, 2022, and an Amended 

Complaint [ECF No. 12] on September 16, 2022, alleging that Defendant “failed to timely evaluate 

and pay the benefits owed to [] Plaintiff under the terms of the insurance policy issued by [] 

Defendant.” (Am. Compl. ¶ 12 (alterations added)). Plaintiff alleges that this “failure to comply” 

caused “damages including, but not limited to, additional property damage.” (Id. ¶ 14). 

Defendant filed its Answer and Affirmative Defenses [ECF No. 31] (“Answer & Aff. 

Defenses”) on February 24, 2023, asserting eight affirmative defenses. Relevant here, Defendant 

alleges that the losses were not covered by its policy (see id. 4–7); “Plaintiff [] failed to comply 

with the conditions in the policy,” resulting in prejudice to Defendant (id. 7–8 (alteration added)); 

and “Plaintiff [] failed to provide mandatory pre-suit notice of the claim” (id. 8 (alteration added)).2

Defendant now seeks summary judgment on two grounds. (See generally Mot.). It argues 

that summary judgment is appropriate because Plaintiff filed its Complaint without first submitting 

a statutorily required pre-suit notice. (See id. 3–7). According to Defendant, because Plaintiff

failed to abide by the pre-suit notice requirement, the action must be dismissed. (See id. 7). 

2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers 

of all court filings.

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 2 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

3

Defendant also argues that Plaintiff failed to comply with the policy’s reporting requirements (see 

id. 7–12); and this failure both gives rise to a presumption of prejudice and, in this case, resulted 

in actual prejudice (see id. 12–16).

In response, Plaintiff makes four arguments: (1) the pre-suit notice requirement does not 

apply (see Resp. 2–13); (2) whether it complied with the policy raises material questions of fact 

that a reasonable jury could still resolve in its favor, making summary judgment inappropriate (see 

id. 13–16); (3) there is no presumption of prejudice (see id. 17–18); and (4) whether prejudice 

exists cannot be determined without resolving factual disputes and making credibility 

determinations that are inappropriate by summary judgment (see id. 18–20).

II. LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense — or the 

part of each claim or defense — on which summary judgment is sought.” Fed. R. Civ. P. 56(a). 

Summary judgment may be rendered if the pleadings, discovery and disclosure materials on file, 

and any affidavits show there is no genuine dispute of any material fact and the movant is entitled 

to judgment as a matter of law. See id. 56(a), (c). An issue of fact is “material” if it might affect 

the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). A dispute of fact is “genuine” if the evidence could lead a reasonable jury to find 

for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986). The Court draws all reasonable inferences in favor of the party opposing 

summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000). 

If the non-moving party bears the burden of proof at trial, the moving party may obtain 

summary judgment simply by: (1) establishing the nonexistence of a genuine issue of material fact 

as to any essential element of a non-moving party’s claim and (2) showing the Court there is 

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 3 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

4

insufficient evidence to support the non-moving party’s case. See Blackhawk Yachting, LLC v. 

Tognum Am., Inc., No. 12-Civ-14209, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015). “Once 

the moving party discharges its initial burden, a non-moving party who bears the burden of proof 

must cite to . . . materials in the record or show that the materials cited do not establish the absence 

or presence of a genuine dispute.” Id. (alteration added; quotation marks omitted; quoting Fed. R. 

Civ. P. 56(c)(1)). 

III. DISCUSSION

Defendant first argues that summary judgment should be entered because Plaintiff failed 

to comply with a statutory pre-suit notice requirement. (See Mot. 3–7). Plaintiff concedes “[t]here 

are no material facts in dispute as to [this] argument” because “Plaintiff did not file a pre-suit 

notice[.]” (Resp. 2 (alterations added)). The only issue, therefore, is whether, as a matter of law,

Plaintiff was required to provide such notice; Plaintiff maintains that it was not. (See id. 3). 

Because the Court disagrees and thus grants summary judgment for Defendant, it does not reach 

the remaining arguments

Insurance claimants are required to “provide the [Florida Department of Financial 

Services] with written notice of intent to initiate litigation . . . . at least 10 business days before 

filing suit under the policy[.]” Fla. Stat. § 627.70152(3) (alterations added). This statutory 

requirement became effective in July 2021. (See Resp. 6). The policy in this case went into effect 

in July 2017 (see SOF ¶ 1; Resp. SOF ¶ 1); consequently, Plaintiff argues that the requirement 

cannot be retroactively applied to it (see Resp. 3–13). Defendant insists that state law now 

mandates retroactive application of the pre-suit notice requirement, and Defendant is entitled to 

summary judgment as a result. (See Mot. 3–7; Reply 2–4).

Florida courts apply a two-pronged test to determine whether a statute should apply 

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 4 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

5

retroactively: “First, the Court must ascertain whether the Legislature intended for the statute to 

apply retroactively. Second, if such an intent is clearly expressed, the Court must determine 

whether retroactive application would violate any constitutional principles.” Menendez v. 

Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) (citing Metro. Dade Cnty. v. Chase Fed. 

Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999)). 

The Court recognizes, as it has in the past, that there existed a “growing consensus among 

lower courts” that the pre-suit notice requirement could not be applied retroactively. See 

Carmichael v. Lexington Ins. Co., No. 22-62196-Civ, Order on Motion to Dismiss [ECF No. 17] 

5, filed Jan. 17, 2023 (S.D. Fla. 2023); see also Dozois v. Hartford Ins. Co. of the Midwest, 595 F.

Supp. 3d 1204, 1208 (M.D. Fla. 2022) (holding it is impermissible for courts to retroactively apply 

section 627.70152(3) because the statute “imposes new duties, obligations, and penalties”); 

Rosario v. Scottsdale Ins. Co., No. 21-24005-Civ, 2022 WL 196528, at *1–*3 (S.D. Fla. Jan. 21, 

2022) (same); Broward Design Ctr., Inc. v. Scottsdale Ins. Co., No. 22-cv-60613, 2022 WL 

1125787, at *1 (S.D. Fla. Apr. 15, 2022) (same); Villar v. Scottsdale Ins. Co., No. 22-cv-21362, 

2022 WL 3098912, at *4–*5 (S.D. Fla. Aug. 3, 2022) (same); Bharratsingh v. Lexington Ins. Co., 

No. 22-cv-60037, 2022 WL 3279537, at *1 (S.D. Fla. Aug. 10, 2022) (same); O’Kelley v. 

Lexington Ins. Co., No. 22-cv-21218, 2022 WL 17583683, at *4–*5 & *5 n.1 (S.D. Fla. Sept. 16, 

2022) (same); Williams v. Foremost Prop. & Cas. Ins. Co., 619 F. Supp. 3d 1161, 1164–66 (M.D. 

Fla. 2022) (same).

Courts reaching this conclusion did so largely based on the second prong — whether 

retroactive application violates any constitutional principles. “Generally, due process 

considerations prevent the State from retroactively abolishing vested rights.” Metro. Dade Cnty., 

737 So. 2d at 503 (citation omitted). Therefore, under Florida law, courts cannot apply a new law

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 5 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

6

or change in the law retroactively if it is “substantive,” as opposed to “procedural.” Weingrad v. 

Miles, 29 So. 3d 406, 409 (Fla. 3d DCA 2010), rev’d on other grounds 164 So. 3d 1208 (Fla. 

2015). In other words, a change in the law will not apply retroactively if it alters substantive 

“duties and rights” rather than the procedural “means and methods to enforce those duties and 

rights.” Id. Florida courts “will reject [retroactive] application if the statute impairs a vested right, 

creates a new obligation, or imposes a new penalty.” Menendez, 35 So. 3d at 877 (alteration added; 

citation and footnote call number omitted). Most courts previously concluded that section 

627.70152 “imposes new duties, obligations, and penalties;” and thus considered it a substantive, 

rather than procedural, law that did not apply retroactively. Dozois, 595 F. Supp. 3d at 1208.

Since those decisions issued, however, state law has changed. As Defendant notes, a recent 

decision from Florida’s Fourth District Court of Appeal reached the opposite conclusion. (See 

Mot. 4 (citing Cole v. Universal Property & Casualty Insurance Company, 363 So. 3d 1089, 1093 

(Fla. 4th DCA 2023)). In Cole, the court found “the legislature expressed a clear intent for the 

statute to apply retroactively” and concluded that the “litany of notification requirements” in 

section 627.70152 “add[s] up to provisions related to process and procedure.” 363 So. 3d at 1093

(alteration added). 

Admittedly, this outcome is in tension with nearly all the federal courts that have 

considered the issue, including the undersigned. Understandably, Plaintiff argues that “Cole was 

decided wrongly” and persuasive reasons exist for the Court to decide the issue differently. (Resp. 

2 (citation omitted)). Plaintiff denies that either the language or the purpose of section 627.70152 

suggests the Legislature intended for retroactive application. (See id. 6–11). It also argues that 

the statute is substantive rather than procedural and thus “cannot be applied 

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 6 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

7

retroactively . . . regardless of the legislative intent.” (Id. 13 (alteration added)).3

 As Defendant 

correctly explains, however, the Court is not in a position to disagree with Cole. (See Mot. 4–5). 

“[T]he rule is that, absent a decision from the state supreme court on an issue of state law, 

[federal courts] are bound to follow decisions of the state’s intermediate appellate courts unless 

there is some persuasive indication that the highest court of the state would decide the issue 

differently.” McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) (alterations added; citations 

omitted). “That rule is . . . particularly appropriate in Florida, where the state’s highest court has 

held that ‘the decisions of the district courts of appeal represent the law of Florida unless and until 

they are overruled by the Florida Supreme Court.’” Id. (alteration added; other alterations adopted;

quoting Pardo v. State, 596 So.2d 665, 666 (Fla. 1992)). “This rule applies even where, as here, 

there is only one intermediate appellate decision.” Royal Palm Vill. Residents, Inc. v. Slider, 57 

F. 4th 960, 965 (11th Cir. 2023) (citations omitted).

Cole is dispositive of the issue presented by Defendant’s Motion. The only factual 

difference between Cole and this case is that the policy in Cole was still in effect when the presuit notice requirement was enacted, see Cole, 363 So. 3d at 1093; whereas the policy here had 

already expired (see SOF ¶ 1; Resp. SOF ¶ 1). Nothing in the reasoning of Cole indicates that this 

difference would affect application of the requirement, see 363 So. 3d at 1093, and Plaintiff does 

not argue that it should (see generally Resp.). According to Cole, the pre-suit notice requirement 

is intended to apply retroactively and, because it is entirely procedural, it can.4

 See 363 So. 3d at 

3 Plaintiff further states that the Motion should be denied because the operative date to consider is the 

effective date of the insurance policy and not the pre-suit notice requirement’s effective date. (See Resp. 

4). The Court agrees that its analysis should look to the insurance policy’s effective date. See Menendez, 

35 So. 3d at 876.

4 The parties do not dispute that the pre-suit notice requirement, if it is procedural, would apply in federal 

court. (See generally Mot.; Resp.; Reply). Typically, a federal court sitting in diversity applies state 

substantive law and federal procedural law. See Hanna v. Plumer, 380 U.S. 460, 465 (1965). Nevertheless, 

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 7 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

8

1093–95.

There is no “persuasive indication” that the Florida Supreme Court would overturn Cole. 

McMahan, 311 F.3d at 1080. Cole’s first conclusion — that the legislature intended for section 

627.70152 to apply retroactively — is based on the statute’s plain language. See 363 So. 3d at 

1093. The Court is persuaded by Cole’s reasoning.

Section 627.70152(a) covers “all suits arising under a residential or commercial property 

insurance policy[.]” Fla. Stat. § 627.70152(1) (alteration added). Plaintiff makes no arguments 

and cites no cases suggesting that Cole’s reading of the statutory language is somehow untenable. 

Instead, it argues simultaneously that “legislative intent is not apparent from the statutory 

language; “the statutory language is clear and unambiguous”; “there is no statement by the 

Legislature that the statute was to apply retroactively”; and “the intent of the Florida Legislature 

was to not have [section] 627.70152 apply retroactively.” (Resp. 7, 10–11 (alteration added; 

emphasis in original)).5

 

a federal court can apply a state statute, despite its procedural nature, if there is no on-point Federal Rule 

of Civil Procedure and not applying the law would “lead to different outcomes in state and federal court 

and result in inequitable administration of the laws or forum shopping.” Carbone v. Cable News Network, 

Inc., 910 F.3d 1345, 1349 (11th Cir. 2018) (quotation marks and citation omitted). It appears likely that “a 

failure to apply the pre-suit notice requirement in federal court” could encourage forum shopping and 

“inequitable administration of law[.]” Pearson v. Scottsdale Ins. Co., No. 22-cv-1530, 2023 WL 4419725, 

at *3 n.4 (M.D. Fla. July 10, 2023) (alteration added). Given the parties’ apparent agreement that the statute 

applies here, procedural or not, the Court does not consider the issue further. See id.

5 Plaintiff briefly cites a case stating that “‘inclusion of an effective date . . . rebuts any argument that 

retroactive application of the law was intended.’” (Resp. 7 (alteration added; quoting Fla. Dep’t of Revenue 

v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla. 1977))). The Florida Supreme Court has clarified, 

however, that this is not an “unbending principle” and “clearly expressed legislative intent” will prevail. 

Metro. Dade Cnty., 737 So. 2d at 502. Indeed, the inclusion of an effective date has been overcome by 

similar use of the word “any[.]” Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 487–88 (Fla. 2008)

(alteration added; quotation marks and citation omitted) (finding that constitutional amendment giving 

“patients” — defined to include previous patients — “a right to have access to any records” was intended 

to apply retroactively despite the inclusion of an effective date (emphasis added; quoting Fla. Const. art. X, 

§ 25(a))). Given the similarities between “any” and “all,” the Court is not convinced that Cole would be 

overturned on the basis of the effective date.

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 8 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

9

To these conclusory and contradictory assertions, Plaintiff adds a series of policy 

arguments that overlap with its arguments addressing the second prong of the retroactivity test. 

(See Resp. 6–11). Plaintiff maintains that “the courts have become confused” and, in seeking to 

understand the Legislature’s intent, should consider the “sweeping change [made] to the personal 

property insurance scheme.” (Resp. 7–9 (alterations added)). Plaintiff’s own description of the 

statute is that it was intended “to reduce litigation costs for the state and insurance companies”; 

“force some insureds to leave their current carrier”; and “create[] incentive to resolve [disputes] 

without resort to litigation and . . . to encourage good faith resolution.” (Resp. 8–9 (alterations 

added)). Even acknowledging that “the purpose of the enactment must be considered” when 

determining legislative intent as to retroactivity, Metro. Dade Cnty., 737 So. 2d at 500 (citations 

omitted) — and even assuming Plaintiff describes the statute’s purposes accurately — the Court 

is not convinced those purposes prevent retroactive application. Retroactive application of a presuit notice requirement does not defeat Plaintiff’s suggested purposes but in fact furthers them by 

increasing the number of cases that can be resolved without litigation. After considering the 

statute’s text and purpose, the Court is not persuaded the Florida Supreme Court would disagree 

with Cole’s conclusion that the Legislature intended section 627.70152 to apply retroactively.

Further, although Plaintiff argues that Cole’s conclusion on the second prong — that 

section 627.70152 is procedural — presents a potential conflict with the Florida Supreme Court’s 

decision in Menendez (see Resp. 3–6, 13), the Court is not persuaded that the Florida Supreme 

Court would decide this issue differently either.

6

 In Menendez, the Florida Supreme Court 

6 Plaintiff also recognizes that “the issue has not yet been addressed by any other District Court of Appeal, 

nor by the Florida Supreme Court.” (Resp. 2). While Plaintiff urges the Court to “examine the issue to see 

if there are persuasive reasons . . . to decide the issue differently” (id. (alteration added)), the only proper 

inquiry considering an intermediate appellate court decision is whether “there is some persuasive indication 

that the highest court of the state would decide the issue differently.” McMahan, 311 F.3d at 1080 

(emphasis added; citations omitted).

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 9 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

10

concluded that a pre-suit notice requirement for certain insurance cases was substantive. See 35 

So. 3d at 879–80. It identified several “problematic provisions” that imposed penalties, affected 

the recovery of attorney’s fees, altered the timeline for payment of benefits, and delayed the right 

of claimants to sue. Id. at 878. 

Cole specifically distinguished Menendez, noting that the pre-suit notice requirement in 

this case “does not contain any of the same problematic characteristics[.]” 363 So. 3d at 1095

(alteration added). Ultimately, “Menendez involved a fundamentally different statutory 

framework, which includes ‘swift and virtually automatic’ right of the insured to recovery” of 

certain benefits; “[t]he same considerations are not implicated in [section 627.70152(3)].” Id. 

(alterations added; quoting Menendez, 35 So. 3d at 877). In concluding that the pre-suit notice 

requirement here is procedural, Cole followed the interpretative framework in Menendez and did

not clearly contradict it.7

 See 363 So. 3d at 1094–95. There is thus no persuasive indication that 

the Florida Supreme Court would disagree with the outcome. 

It is certainly possible that the Florida Supreme Court could reverse Cole; but as it stands, 

Plaintiff has only made a case that “the Florida Supreme Court could rule contrary to the appellate 

court’s decision[,]” not “that it actually would change the law.” Weiss v. City of Gainesville, Fla., 

462 F. App’x 898, 908 (11th Cir. 2012) (alteration added; citation omitted). This is not enough. 

7 The Court recognizes that section 627.70152 also altered plaintiffs’ entitlement to attorney’s fees, see Fla. 

Stat. § 627.70152(8); and the right to attorney’s fees is a substantive one, see Menendez, 35 So. 3d at 878. 

As in Cole, however, this provision is not at issue in this case and “does not act as a bar to enforcement of 

another provision that is able to be applied retroactively.” 363 So. 3d at 1094 (citing Lawnwood Med. Ctr., 

Inc. v. Seeger, 990 So. 2d 503, 518 (Fla. 2008); Leapai v. Milton, 595 So. 2d 12, 15 (Fla. 1992)); see also 

Arlen House Condo. Ass’n, Inc. v. Rockhill Ins. Co., No. 22-cv-23649, 2023 WL 5992142, at *10 (S.D. Fla. 

Sept. 15, 2023) (agreeing with Cole); Pearson, 2023 WL 4419725, at *3 (same). Further, although the 

attorney’s fees provision existed at the time of enactment, see Fla. Stat. § 627.70152(8) (2021), the 

Legislature amended the statute effective December 16, 2022 and deleted the entire subsection (8) dealing 

with attorney’s fees, see Ch. 2022-271, § 17, Fla. Laws; Fla. Stat. § 627.70152 (2022).

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 10 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

11

Nor is it enough that the undersigned previously reached a different conclusion or could reach a 

different conclusion in this case. “The fact that [federal courts] decided the issue differently is not 

a persuasive indication that the Florida Supreme Court would agree with [them] and not with one 

of its own intermediate appellate courts, which presumably knows more about Florida law[.]” 

McMahan, 311 F.3d at 1080 (alterations added). 

The Court is bound by Cole “whether or not [it] agrees with the reasoning on which the 

state court’s decision is based or the outcome which the decision dictates.” Silverberg v. Paine, 

Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983) (alteration added; citations 

omitted); see also CodeVentures, LLC v. Vital Motion Inc., No. 22-11288, 2023 WL 2644173, at 

*3 (11th Cir. Mar. 27, 2023) (recognizing that court is bound by state intermediate appellate courts 

even if it “disagree[s] with [their] reasoning” (alterations added)). It is worth noting that two 

federal district courts have already followed Cole. See Arlen House Condo. Ass’n, Inc., 2023 WL 

5992142 at *10 (finding “no indication” that Florida Supreme Court would overturn Cole);

Pearson, 2023 WL 4419725 at *3 (same).

In short, Cole is a binding change in Florida state law, and the Court has “the authority, 

power, and duty to . . . comport with the latest word from the Florida courts[.]” McMahan, 311 

F.3d at 1081 (alterations added). Accordingly, the Court grants Defendant summary judgment on 

its defense of Plaintiff’s failure to provide pre-suit notice under section 627.70152(3) and

dismisses the case without prejudice.8

 

8 Defendant argues that the Court should dismiss the case with prejudice “because the pre-suit notice can 

no longer be timely served.” (Mot. 5). The statute, however, expressly states that if the pre-suit notice 

requirement is not met, “[a] court must dismiss without prejudice[.]” Fla. Stat. § 627.70152(5) (alterations 

added). Defendant does not cite any authority to support its argument that the Court can and should deviate 

from this statutory directive. (See generally Mot.; Reply).

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 11 of 12
CASE NO. 22-22895-CIV-ALTONAGA/Damian

12

IV. CONCLUSION

For the foregoing reasons, it is 

ORDERED AND ADJUDGED that Defendant, Scottsdale Insurance Company’s Motion 

for Summary Judgment [ECF No. 50] is GRANTED. The Amended Complaint [ECF No. 12] is 

DISMISSED without prejudice. All pending motions are denied as moot.

DONE AND ORDERED in Miami, Florida, this 23rd day of October, 2023.

 ________________________________________

 CECILIA M. ALTONAGA

 CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record

Case 1:22-cv-22895-CMA Document 62 Entered on FLSD Docket 10/23/2023 Page 12 of 12