UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

ARLEN HOUSE CONDOMINIUM 

ASSOCIATION, INC., AND ARLEN 

HOUSE WEST CONDOMINIUM 

ASSOCIATION, INC., 

Plaintiffs, 

v. 

ROCKHILL INSURANCE COMPANY, 

 Defendant. 

Civil Action No. 1:22-CV-23649 

PLAINTIFFS’ RESPONSE TO DEFENDANT’S OBJECTION TO

THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. SUMMARY OF ALLEGATIONS AND ADDITIONAL BACKGROUND .................... 2

III. ARGUMENT...................................................................................................................... 3

A. The Magistrate Judge Correctly Applied Cole to Deny Rockhill’s Motion 

to Dismiss................................................................................................................ 3

1. Cole Is On-Point and Persuasive................................................................. 3

2. Cole’s Interpretation of Section 627.70152 Is Binding on This 

Court. .......................................................................................................... 5

3. Cole Controls the Outcome of Rockhill’s Motion...................................... 6

B. The Magistrate Judge Correctly Ruled that the Tolling Provision Is 

Procedural and May Be Applied Retroactively. ..................................................... 7

1. The Tolling Provision Does Not Impact Any Substantive Rights.............. 7

2. The Magistrate Judge’s Decision Is Consistent with Menendez................. 9

IV. CONCLUSION................................................................................................................. 13

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Plaintiffs Arlen House Condominium Association, Inc. and Arlen House West 

Condominium Association, Inc. (together, “Arlen House”) submit this response to the objections 

to the Magistrate Judge’s Report and Recommendation (ECF 103) filed by Defendant Rockhill 

Insurance Company (“Rockhill”).

I. INTRODUCTION

The Magistrate Judge correctly concluded that the decision of the Florida Fourth District 

Court of Appeals (“Fourth DCA”) in Cole v. Universal Property & Casualty Insurance Co., 363 

So.3d 1089 (Fla. 4th DCA May 3, 2023) requires that Rockhill’s motion to dismiss be denied. In 

Cole, the Fourth DCA held that the presuit notice provision in Florida Statutes § 627.70152(3) 

applies as written to “all suits” filed after the statute’s effective date, including suits that arise out 

of insurance policies issued prior to that date. It held that the legislature clearly expressed its 

intent in the text of the statute. It held that applying the presuit notice provision retroactively 

raises no constitutional concerns because the provision is procedural. And although it applied the 

two-prong retroactivity analysis laid out in Menendez v. Progressive Express Insurance Co., Inc., 

35 So.3d 873 (Fla. 2010), it reached a different result than Menendez because the procedural 

notice and tolling provisions in Section 627.70152(3) differ in kind from the substantive changes 

that the amendment to the personal injury protection (“PIP”) statute at issue in Menendez made 

to the terms of motor vehicle insurance policies.

As the only precedential decision of a Florida appellate court that has addressed how 

Section 627.70152(3) applies to cases like this one, Cole controls the outcome of Rockhill’s 

motion. Rockhill has identified no reason, let alone a compelling reason, to believe that the 

Florida Supreme Court would reject Cole’s holding that Section 627.70152(3) is procedural or 

the ways in which Cole distinguished Menendez.

While the Magistrate Judge could have relied exclusively on Cole, she also engaged in an 

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additional analysis of whether the tolling provision in Section 627.70152(3)(b) is procedural, and 

thus may be applied retroactively. The Magistrate Judge correctly determined that the tolling 

provision is procedural, based on well-established Florida law that a person has no vested right in 

a statute of limitations until it has run. Because the tolling provision affects no vested rights, it is 

procedural, not substantive, and may be applied retroactively in accordance with the 

Legislature’s intent. Like Cole, the Magistrate Judge’s decision is fully consistent with 

Menendez, which involved a fundamentally different statutory scheme that made substantive 

alterations to the terms of the policies at issue. Section 627.70152(3) makes no such substantive 

alterations.

Arlen House is entitled to the ten business days of tolling provided by 

Section 627.70152(3)(b), and its claim was timely filed. This Court should adopt the Magistrate 

Judge’s recommendation to deny Rockhill’s motion to dismiss.

II. SUMMARY OF ALLEGATIONS AND ADDITIONAL BACKGROUND

Arlen House owns two 22-story condominium towers and a clubhouse in Sunny Isles 

Beach, Florida. Am. Compl. ¶¶ 6-7 [ECF 65]. It brings this lawsuit under a Commercial Property 

Policy issued by Rockhill for severe damage caused by Hurricane Irma, which hit Florida on 

September 10, 2017. See id. ¶¶ 9-25 & Ex. A.

After Rockhill issued the Policy, but before Arlen House filed this case, the Florida 

Legislature enacted Florida Statutes § 627.70152, entitled “Suits Arising Under a Property 

Insurance Policy.” The statute became effective on July 1, 2021. The statute said that it applies 

“to all suits not brought by an assignee arising under a residential or commercial property 

insurance policy, including a residential or commercial property insurance policy issued by an 

eligible surplus lines insurer” initiated after its effective date of July 1, 2021. Id. § 627.70152(1) 

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(emphasis added).1 Among other things, the statute requires a policyholder in “a suit under a 

property insurance policy” 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)(a). To ensure that the notice requirement does not deprive 

a policyholder of time under the applicable statute of limitations, the statute provides that 

“[s]ervice of a notice tolls the time limits provided in § 95.11 for 10 business days if such time 

limits will expire before the end of the 10-day notice period.” Id. § 627.70152(3)(b).

Arlen House filed a Notice of Intent to Initiate Litigation (the “Notice”) on September 8, 

2022. See Am. Compl. Ex. B. Arlen House submitted the Notice within the five-year limitations 

period established by Florida Statutes § 95.11, which expired on September 12, 2022. Arlen 

House then waited ten business days, as the statute requires, and filed a one-count complaint for 

breach of contract on September 22, 2022. There is no dispute that if Arlen House receives the 

ten business days of tolling promised by § 627.70152(3)(b), its complaint was timely filed.

III. ARGUMENT

A. The Magistrate Judge Correctly Applied Cole to Deny Rockhill’s Motion to 

Dismiss.

The Magistrate Judge correctly applied Cole—the only precedential decision of a Florida 

appellate court that has addressed the operation of Section 627.70152(3) in cases like this one—

to deny Rockhill’s motion to dismiss.

1. Cole Is On-Point and Persuasive.

In Cole, the Fourth DCA held that the presuit notice provision in Section 627.70152(3) 

applies as written to all suits filed after its effective date, including suits involving policies issued 

1 The Legislature amended Section 627.70152 effective December 16, 2022. The amendment 

removed the clause “not brought by an assignee” from subsection 1.

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before that date. As the Magistrate Judge recognized, Cole considers and resolves the issues of 

statutory construction that dictate the outcome of Rockhill’s motion.

The Fourth DCA began by setting forth the “‘general rule ... that a substantive statute 

will not operate retrospectively absent clear legislative intent to the contrary, but that a 

procedural or remedial statute is to operate retrospectively.’” Cole, 363 So. 3d at 1091 (citation 

omitted). The court summarized the difference between substantive and procedural statutes: 

“‘[S]ubstantive law prescribes duties and rights’ as opposed to procedural law which concerns 

itself with ‘the means and methods to apply and enforce those duties and rights.’” Id. at 1091-92

(citation omitted). The court then applied the same two-part test from Menendez that the parties 

agree is applicable here:

“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.” Specifically, as to the second part of this test, we 

focus on “whether retroactive application of the statute ‘attaches new legal 

consequences to events completed before its enactment.’”

Id. at 1092 (quoting Menendez, 35 So.3d at 877).

Every aspect of Cole is persuasive. With respect to the first prong of the Menendez test, 

the Fourth DCA held that “the legislature expressed a clear intent for the statute to apply 

retroactively.” Id. at 1093. Emphasizing the “all suits” language in the statute, the court ruled 

that the statute means what it says: “the statute applies to all suits.” Id. (citing Fla. Stat. 

§ 627.70152(1)). Moreover, the court observed, “[i]f the legislature had intended to limit this 

presuit notice provision to policies issued after the statute’s effective date, the legislature would 

have included language stating so.” Id.2

2 Rockhill does not appear to challenge the Magistrate Judge’s conclusion that the Legislature 

clearly intended Section 627.70152(3) to apply retroactively. The Magistrate Judge properly 

concluded that the Court is bound by Cole’s ruling on that issue, and also noted that the 

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With respect to the second prong of the Menendez test, the Fourth DCA concluded that 

the “presuit notice requirement was retroactive and procedural in nature and that it did not affect 

any substantive rights.” Id. The court explained that the policyholder’s “rights and obligations 

are unchanged” and that the “notice provision is simply part of the ‘course, form, manner, 

means, mode, order, process or steps by which a party enforces substantive rights or obtains 

redress for their invasion.’” Id. (citation omitted).

The Fourth DCA also distinguished Menendez. The court acknowledged that the 

amendment to the PIP statute at issue in Menendez likewise contained a presuit notice provision. 

However, Menendez involved a fundamentally different statutory scheme, and other substantive 

terms in the same section of the PIP amendment changed the terms of motor vehicle policies in a 

substantive manner that precluded retroactive application of the PIP amendment. Id. at 1095.

2. Cole’s Interpretation of Section 627.70152 Is Binding on This Court.

The Magistrate Judge properly found that this Court must adopt Cole’s interpretation of 

how Section 627.70152(3) operates. “‘It is well settled that federal courts are bound by the 

interpretation of a state statute by state courts.’” Ins. Co. of N.A. v. Lexow, 937 F.2d 569, 571 

(11th Cir. 1991) (citation omitted). “State law is what the state appellate courts say it is, and we 

are bound to apply a decision of a state appellate court about state law even if we think that 

decision is wrong.” Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 881 F.3d 835, 848 (11th Cir. 

2018).

Accordingly, this Court must follow Cole “absent some persuasive indication that the 

legislative history for Section 627.70152 shows that the Legislature explicitly considered and 

rejected the idea of limiting the statute’s scope to claims arising out of insurance policies issued 

after the statute’s effective date, as opposed to all claims filed after the statute’s effective date. 

See ECF 103 at 13 & n.5.

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state’s highest court would decide the issue otherwise.” Silverberg v. Paine, Webber, Jackson & 

Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983). That rule applies “whether or not the court 

agrees with the reasoning on which the state court’s decision is based or the outcome which the 

decision dictates.” Id.; see also CodeVentures, LLC v. Vital Motion Inc., No. 22-11288, 2023 WL 

2644173, at *3 (11th Cir. Mar. 27, 2023) (same).3

3. Cole Controls the Outcome of Rockhill’s Motion.

Rockhill argues that this Court is free to ignore Cole merely because it deals with the 

presuit notice requirement in Section 627.70152(3)(a) rather than the tolling provision in 

subsection (3)(b). See ECF 105 at 6-7. However, as the Magistrate Judge pointed out, see ECF 

103 at 14, the Fourth DCA referred generally to “section 627.70152(3)” or the “presuit notice 

requirement” of the statute, and gave no indication that it viewed subparagraphs (a) and (b) 

differently. The Legislature also expressed an intent for the notice and tolling provisions to apply 

together by placing both provisions in the same subsection entitled “Notice.”

Moreover, subparagraphs (a) and (b) work together and any attempt to divorce them 

would lead to untenable results. The Magistrate Judge provided an example illustrating this point

3

 Before Cole, federal and state courts in Florida were divided on the issue of whether Section 

627.70152(3) could be applied to policies issued before the statute’s effective date. See ECF 103 

at 16 n.8. Arlen House submitted many cases holding that Section 627.70152(3) applies to all 

property insurance claims filed after the statute’s effective date, regardless of when the policy 

was issued. See ECF 80-1; ECF 92.

 However, as the Magistrate Judge found, Cole is a game-changer. The federal court decisions 

finding that Section 627.70152(3)(b) cannot be applied retroactively “are now distinguishable 

because they were based on the conclusion that Section 627.70152(3)(a) and (4) substantively 

impacts the rights and obligations of the insurer and the insured. However, Cole found that those 

provisions are ‘procedural provisions,’ and as noted above, this Court is now bound by Cole.” ECF 

103 at 16 n.8 (citations omitted). The only post-Cole decision in this District did not consider 

whether the tolling provision was procedural or substantive because the policyholder’s complaint 

was untimely even if the ten-day tolling provision in Section 627.70152(3)(b) applied. Oceania III 

Condo. Assoc., Inc. v. Westchester Surplus Lines Ins. Co., No. 22-23681, 2023 WL 3943612, at 

*3 (S.D. Fla. June 12, 2023).

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and how the tolling provision acts as a “savings clause” for suits at the end of the limitations 

period:

[C]onsider an insured prepared to file her complaint on July 3, 2021, five 

days before the statute of limitations expired on her claim. Pursuant to Cole, 

because section 627.70152 became effective as to that claim on July 1, 2021, 

the insured would have been required to provide presuit notice under Section 

627.70152(3), and could not have filed her lawsuit until ten business days 

later. Unless the tolling subparagraph of the Presuit Notice Provision was also 

retroactive, the insured would not be able to file suit at all because the statute 

of limitations would have expired before the ten day period. In short, unless 

the tolling subparagraph is read as having retroactive application in cases 

where the statute of limitations had not yet expired when the statute took 

effect, Cole’s reasoning would lead to an impermissible reading of the statute, 

as there would be a category of insureds that could not both provide statutory 

presuit notice and timely file suit before their statute of limitations expired.

ECF 103 at 17-18 (footnote omitted). There is no reasonable basis for this Court to conclude that 

the Florida Supreme Court would split up the notice and tolling provisions that the Legislature 

placed together and decide that only one provision could be applied retroactively.

B. The Magistrate Judge Correctly Ruled that the Tolling Provision Is 

Procedural and May Be Applied Retroactively.

Although the Magistrate Judge could have based her decision solely on Cole, she went on 

to provide several pages of well-reasoned analysis explaining why the tolling provision in 

Section 627.70152(3)(b) is procedural rather than substantive, and thus may be applied 

retroactively. The Magistrate Judge’s analysis is fully consistent with Menendez.

1. The Tolling Provision Does Not Impact Any Substantive Rights.

In Florida, the “general rule is that in the absence of clear legislative intent to the 

contrary, a law affecting substantive rights, liabilities and duties is presumed to apply 

prospectively.” Metropolitan Dade Cnty. v. Chase Federal Housing Corp., 737 So. 2d 494, 500 

(Fla. 1999). “Procedural or remedial statutes, on the other hand, are to be applied retrospectively 

and are to be applied to pending cases.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 

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1358 (Fla. 1994). “[E]ven where the Legislature has expressly stated that a statute will have 

retroactive application, [the] Court will reject such an application if the statute impairs a vested 

right, creates a new obligation, or imposes a new penalty.” Menendez, 35 So.3d at 877; see also 

ECF 103 at 10-11.

As the Magistrate Judge explained, see ECF 103 at 15-16, there is no impediment to 

applying the tolling provision in Section 627.70152(3)(b) retroactively because it does not affect 

any substantive rights. Florida law is clear that “‘a person has no vested right in the running of a 

statute of limitations unless it has completely run and barred the action. Before the action is 

barred by the statute, the Legislature has absolute power to amend the statute and alter the period 

of limitations prescribed therein.’” Wiley v. Roof, 641 So. 2d 66, 68 (Fla. 1994) (quoting Corbett 

v. General Eng’g and Machinery Co., 37 So.2d 161, 162 (Fla. 1948)). As a result, the 

“‘Legislature has the power to increase a prescribed period of limitation and to make it 

applicable to existing causes of action provided the change in the law is effective before the 

cause of action is extinguished by the force of a pre-existing statute.’” Id. (quoting Walter 

Denson & Son v. Nelson, 88 So.2d 120, 122 (Fla. 1956)).

When Section 627.70152 became effective on July 1, 2021, Rockhill had no vested right 

in the running of the statute of limitations on Arlen House’s claim because the five-year statute 

of limitations had not yet “completely run and barred the action.” In other words, at the time 

Section 627.70152 went into effect, Arlen House’s claim had not been extinguished by the 

existing five-year statute of limitations. Accordingly, the Legislature had “absolute power” to 

adjust the amount of time that Arlen House had to file suit, and the Legislature chose to do so by 

providing ten business days of tolling under certain circumstances. Applying the tolling 

provision to Arlen House’s claim raises no constitutional concerns because it does not impact 

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Rockhill’s substantive rights.

“In short, Section 627.70152(3)(b), as applied here, does not ‘impair a vested right, create 

a new obligation or impose a new penalty’ and, thus, is not substantive in nature. Instead, the 

tolling subparagraph constitutes a procedural change that applies retroactively in those cases 

where the statute of limitations had not yet expired when Section 627.70152 took effect.” ECF 

103 at 16-17 (footnote omitted).

2. The Magistrate Judge’s Decision Is Consistent with Menendez.

Neither the Magistrate Judge’s decision nor Cole is in conflict with Menendez. To the 

contrary, both decisions properly applied Menendez’s two-part retroactivity test and the 

distinction that Florida law (including Menendez) draws between substantive and procedural 

statutory provisions.

Rockhill seems to be arguing that Menendez prevents retroactive application of any

statutory provision involving an insurance policy, no matter how purely procedural or remedial. 

See ECF 105 at 10-11. That argument reflects a profound misreading of Menendez. Menendez

did not overturn decades of black-letter Florida law holding that the Legislature may establish 

new procedures for enforcing existing rights, and that those procedures may be applied 

retroactively. Indeed, the Florida Supreme Court began its decision in Menendez by noting that 

whether the amendment to the PIP statute could apply to the insurance dispute in that case 

depended upon whether that amendment was “merely procedural” or “substantive.” Menendez, 

35 So. 3d at 874-75. Most of the analysis in Menendez would be utterly superfluous if any 

statutory provision concerning an insurance policy was automatically considered to be 

substantive.

Nothing in Menendez suggests that statutory provisions relating to insurance policies can 

never be applied retroactively. Rockhill relies heavily on the court’s statement in Menendez that 

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“the statute in effect at the time an insurance contract is executed governs substantive issues 

arising in connection with that contract.” Id. at 876; see ECF 105 at 9, 11, 12, 14. Rockhill 

incorrectly construes that statement to mean that all statutes in effect at the time a policy is 

executed are set in stone, and can never be altered retroactively by new statutory provisions, 

even if those new provisions are merely procedural.

The context of the court’s statement makes it clear that Rockhill’s interpretation is wrong. 

The court made the statement as part of its initial evaluation of whether a retroactivity analysis 

was necessary at all. Menendez, 35 So. 3d at 876. Having determined that it was, because 

normally the statute in effect at the time the policy was executed would be controlling, the court 

then completed such a retroactivity analysis, including a lengthy examination of whether the PIP 

amendment at issue was substantive or procedural. Id. at 878-80. If the court had concluded the 

amendment was procedural, it plainly would have had no trouble applying the amendment 

retroactively. See id. at 880.

The Magistrate Judge here took exactly the same approach as the Florida Supreme Court 

in Menendez and the Fourth DCA in Cole. After deciding that a retroactivity analysis was 

required, the Magistrate Judge looked at whether the tolling provision was procedural or 

substantive. The Magistrate Judge’s conclusion that the tolling provision was procedural was

based on the binding reasoning in Cole and the long-standing Florida cases discussed above 

holding that a person has no vested right in a statute of limitations until it has run. Rockhill’s 

cursory attempt to distinguish those cases, see ECF 105 at 12-13, exposes the circularity of its 

reasoning. Rockhill simply assumes the conclusion that the tolling provision is substantive, 

arguing that Corbett and Nelson do not show the tolling provision can apply retroactively 

because no statutory provision involving an insurance policy can apply retroactively. It is that

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position, not the Magistrate Judge’s decision or Cole, that is incompatible with Menendez.

Rockhill also wrongly equates the procedural notice and tolling provisions in Section 

627.70152(3) with the substantive changes that the PIP amendment made to the terms of motor 

vehicle policies. There is no indication that the Florida Supreme Court would reject the many 

key distinctions that Cole drew between Section 627.70152(3) and the PIP amendment. See Cole, 

363 So.3d at 1095. Although the PIP amendment included a tolling provision, Rockhill 

misleadingly implies that the tolling provision was a main focus of the Menendez analysis. See 

ECF 105 at 10. In fact, Menendez omitted the tolling provision from its list of the “problematic 

provisions” that precluded retroactive application of the amendment. Those “problematic 

provisions” were “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.” Id. at 878.

As the Fourth DCA held in Cole, “section 627.70152(3) does not contain any of the same 

problematic characteristics.” Cole, 363 So. 3d at 1095. Specifically, unlike the “problematic 

provisions” in Menendez, nothing in section 627.70152(3) substantively modifies the terms of 

the property insurance policy or alters when, whether, or how much an insurer pays under the

policy. Tolling a statute of limitations is not akin to extending a contractual deadline. Changing 

the terms of motor vehicle policies to “grant an insurer additional time to pay benefits” is 

substantive, particularly in the special context of the PIP statute. As Menendez explained, “any 

impediment of the right of the insured to recover in a ‘swift and virtually automatic way has the 

potential for interfering with the PIP scheme’s goal of being a reasonable alternative to common 

law tort principles.” Menendez, 35 So.3d at 877. In contrast, as discussed above, the Florida 

Supreme Court repeatedly has held that the legislature may retroactively lengthen unexpired 

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statutes of limitations because no one has any vested right in such unexpired statutes of 

limitations. See Wiley, 641 So. 2d at 68.

Rockhill likewise does not dispute Cole’s conclusion that “subsection (3) does not even 

create any substantive ‘delay’ in filing suit.” Cole, 363 So. 2d at 1095. The tolling provision 

extends the time in which the insured may file suit. 

Near the end of its brief, Rockhill tosses in a handful of statutory provisions that are not 

at issue here, including Section 627.70152(4) and (5), and asserts that Section 627.70152 is 

substantive “when viewed as a whole.” See ECF 105 at 14-15. However, as Cole pointed out, 

even assuming some of those provisions are substantive,4 provisions “not an issue in this case” 

are “not relevant to our determination.” Cole, 363 So.3d at 1094. “One provision that is 

substantive in scope does not act as a bar to enforcement of another provision that is able to be 

applied retroactively.” Id. (citing Lawnwood Med. Ctr. Inc. v. Seeger, 990 So.2d 503, 518 (Fla. 

2008) and Leapai v. Milton ̧ 595 So.2d 12, 15 (Fla. 1992)). Cole’s invocation of the severability

doctrine is consistent with the rule that “statutes should be construed to effectuate the express 

legislative intent and all doubt as to the validity of any statute should be resolved in favor of its 

constitutionality.” Leapai, 595 So. 2d at 14 (Fla. 1992). “The purpose underlying severability [is] 

to preserve the constitutionality of enactments where it is possible to do so.” Ray v. Mortham, 

742 So. 2d 1276, 1281 (Fla. 1999). Rockhill does not even mention severability, let alone offer 

any reason why that purpose has less force when deciding whether constitutional principles 

permit a statute to apply retroactively.

4 Cole held specifically that Section 627.70152(4) is not substantive and instead relates to 

“process and procedure.” Cole, 363 So.3d at 1093-94.

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IV. CONCLUSION

The Magistrate Judge properly followed Cole, which is binding on this Court, and 

determined that the tolling provision is procedural and may be applied retroactively. Arlen 

House’s claim was timely filed, and this Court should adopt the Magistrate Judge’s 

recommendation to deny Rockhill’s motion to dismiss.5

September 1, 2023 

/s/ Jennifer Ruiz 

Jennifer Ruiz (Florida Bar No. 0967173) 

WEISBROD MATTEIS & COPLEY PLLC

500 E. Broward Blvd, Suite 1700 

Fort Lauderdale, FL 33394 

(954) 300-3864 

jruiz@wmclaw.com

Shelli L. Calland (admitted pro hac vice) 

1201 New Hampshire Avenue, NW, 4th Floor

Washington, DC 20036

(202) 793-2900

scalland@wmclaw.com

5 Arlen House respectfully disagrees with the Magistrate Judge’s rulings regarding equitable 

tolling and estoppel (see ECF 103 at 18 n.10) and whether Arlen House is seeking only a 

prospective application of the tolling provision (see id. at 7-9), but is not objecting to the 

Magistrate Judge’s Report and Recommendation. If necessary, Arlen House reserves the right to 

challenge those rulings on appeal. 

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