United States District Court 

for the 

Southern District of Florida 

Oceania III Condominium 

Association, Inc. Plaintiff, 

v. 

Westchester Surplus Lines Ins. Co. 

and Everest Indemnity Ins. Co., 

Defendants.

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Civil Action No. 22-23681-Civ-Scola 

Order Granting Defendants’ 

Joint Motion to Dismiss Amended Complaint 

This matter is before the Court on the Defendants Everest Indemnity 

Insurance Company and Westchester Surplus Lines Insurance Company’s 

(collectively the “Defendants”) joint motion to dismiss Plaintiff Oceania III 

Condominium Association, Inc.’s (“Oceania”) amended complaint. (Defs.’ Mot., 

ECF No. 20.) Oceania has responded to the motion, and the Defendants have 

replied. (Pl.’s Resp., ECF No. 26; Defs.’ Reply, ECF No. 30.) Having reviewed the 

record, the parties’ briefs, and the relevant legal authorities, the Court grants 

the Defendants’ motion. (Defs.’ Mot., ECF No. 20.) 

1. Background1

Oceania is the owner of the property located at 16485 Collins Ave., 

Sunny Isles Beach, FL 33160. (Am. Compl. ¶ 5, ECF No. 15.) On September 10, 

2017, the property sustained a loss as a result of Hurricane Irma. (Id. ¶ 13.) At 

that time, the property was insured against certain losses under two active 

policies independently issued by the Defendants. (Id. ¶¶ 7–13.) Seeking 

coverage from the Defendants, Oceania complied with the policies’ post-loss 

obligations and provided the Defendants with a full account of the damages 

sustained by the property. (Id. ¶¶ 14–15.) However, on November 4, 2021, the 

Defendants formally denied Oceania’s claims. (Id. ¶ 18; Ex. A to Defs.’ Reply, 

ECF No. 30-1.)2

1 The factual background is based on the allegations in Oceania’s amended complaint. (Am. 

Compl., ECF No. 15.) For purposes of evaluating the Defendants’ motion, the Court accepts 

Oceania’s factual allegations as true and construes the allegations in the light most favorable 

to it per Federal Rule of Civil Procedure 12(b)(6). 2 Although Oceania’s amended complaint does not specify that the denial occurred on 

November 4, 2021, the Defendants provide the formal denial letter as Exhibit A to the reply in 

support of their motion. (Ex. A to Defs.’ Reply, ECF No. 30-1.) The Court may consider this 

document because it is central to Oceania’s claims, which arise from the Defendants’ denial of 

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 1 of 11
Approximately ten months later, on August 29, 2022, Oceania submitted 

to each Defendant a notice of intent to enter litigation pursuant to Fla. Stat. 

§ 627.70152(3). (Id. ¶¶ 20–21.) Oceania’s notices specified that it intended to 

file a lawsuit upon expiration of the safe harbor provision in § 627.70152(3)(a), 

which requires that “notice must be given at least 10 business days before 

filing [a] suit” arising under a residential or commercial property insurance 

policy. (Id.) Per § 627.70152(4), another provision of the same statute, the 

Defendants were required to “respond in writing within 10 business days after 

receiving” Oceania’s notices. Because of the intervening Labor Day holiday, the 

Defendants’ response deadline fell on September 13, 2022. On that day, the 

Defendants responded to Oceania’s notices of intent by requesting reinspection of the property in accordance with § 627.70152(4). (Id. ¶¶ 22–25.)

The Defendants’ responses also made Oceania settlement offers in the amount 

of $500 each, specifying that the offers were made “to avoid litigation and 

because [the Defendants were] required to [make them] under Fla. Stat. 

§ 627.70152, if such statute applie[d].” (Id.) 

Critically, the statute of limitations on Oceania’s claim, as set forth in 

Fla. Stat. § 95.11(2), expired on September 12, 2022, one day before the 

Defendants’ responses to the notices were due. However, rather than file suit 

on September 12, 2022, Oceania continued to engage with the Defendants 

pursuant to the pre-suit procedures outlined in § 627.70152. On September 

15, 2022, Oceania emailed the Defendants acknowledging their request for 

reinspection of the property and attempting to coordinate dates for reinspection 

within the fourteen-day period set forth in § 627.70152(4). (Id. ¶ 27.) Although 

the parties engaged in some back-and-forth on the scheduling, no reinspection 

occurred, and on October 4, 2022, upon the lapse of fourteen business days, 

Oceania filed the instant lawsuit. (Id. ¶¶ 27–33.)

In the lawsuit, Oceania states a single claim against each Defendant for 

their alleged breach of their respective insurance policies. (Id. ¶ 19.) The 

Defendants jointly move to dismiss Oceania’s amended complaint arguing that 

it is time-barred because it was filed after the five-year state of limitations that 

ended on September 12, 2022. (Defs.’ Mot. 1–2, ECF No. 20.) Oceania does not 

dispute that the statute of limitations passed on September 12, 2022. (See 

generally Pl.’s Resp., ECF No. 26.) Instead, it argues that the Defendants’ 

coverage, and is undisputed in terms of authenticity. See Maxcess, Inc. v. Lucent Techs., Inc., 

433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the 

complaint may still be considered if it is central to the plaintiff's claims and is undisputed in 

terms of authenticity.”); Pinhasov v. Equifax Info. Servs., LLC, No. 21-cv-62582-BLOOM/Valle, 

2022 U.S. Dist. LEXIS 48934, at *7 n.1 (S.D. Fla. Mar. 17, 2022) (Bloom, J.) (considering 

document filed by defendant after submission of its motion to dismiss).

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motion should be denied for any one of three reasons: (1) the ten-business day 

safe harbor provision of § 627.70152(3)(b) should apply to toll the statute of 

limitations deadline; (2) equitable estoppel bars the Defendants from asserting 

the statute of limitations; and (3) equitable tolling is appropriate under the 

circumstances to deem the action timely filed. (Id. at 5.) For the reasons set 

forth below, the Court rejects all three arguments and concludes that Oceania’s 

claim is time-barred. 

2. Legal Standard 

A court considering a motion to dismiss, filed under Federal Rule of Civil 

Procedure 12(b)(6), must accept all of the complaint’s allegations as true, 

construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need 

only contain a short and plain statement of the claim showing that the pleader 

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal 

punctuation omitted). A court must dismiss a plaintiff’s claims if she fails to 

nudge her “claims across the line from conceivable to plausible.” Twombly, 550 

U.S. at 570.

The Eleventh Circuit has held that a statute of limitations bar is an 

affirmative defense, and that plaintiffs are not required to negate such defenses 

in the complaint. La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th 

Cir. 2004). Dismissal on statute of limitations grounds “is appropriate only if it 

is ‘apparent from the face of the complaint’ that the claim is time-barred.” Sec’y 

of Labor v. Labbe, 319 F. App’x. 761, 764 (11th Cir. 2008); see also Tello v. 

Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005) (same); La 

Grasta, 358 F.3d at 845 (same); Omar ex rel. Cannon v. Lindsey, 334 F.3d 

1246, 1251(11th Cir. 2003) (noting that Rule 12(b)(6) dismissal is appropriate 

“if noncompliance with the statute of limitations is apparent on the face of the 

complaint”). The court in Labbe went on to hold that dismissal is only

appropriate “if it appears beyond a doubt” that a plaintiff “can prove no set of 

facts that toll the statute.” Labbe, 319 F. App’x. at 764 (quoting Tello, 410 F.3d 

at 1288 n. 13).

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 3 of 11
3. Discussion 

A. Fla. Stat. § 627.70152(3)(b) 

Fla. Stat. § 627.70152, which applies “to all suits arising under a 

residential or commercial property insurance policy,” creates a notice 

requirement “[a]s a condition precedent to filing a suit under [said] property 

insurance policy.” Id. § 627.70152(1), (3)(a). The statute contains various 

tolling provisions that extend the time limit established by § 95.11 while the 

parties are engaged in the pre-suit notice process. For present purposes, the 

most relevant of those provisions is the following: 

(b) A claimant must serve a notice of intent to initiate litigation 

within the time limits provided in s. 95.11. However, the notice is 

not required if the suit is a counterclaim. Service of a notice tolls 

the time limits provided in s. 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) (emphasis added). The Defendants argue that, because 

the statute became effective on July 1, 2022, it cannot be applied retroactively 

to toll the statute of limitations on Oceania’s claim, which is based on a policy 

issued years before. (Defs.’ Mot. 6–9, ECF No. 20.) Oceania counters that, 

because it complied voluntarily with the statute, it is entitled to the ten-day 

safe harbor of § 627.70152(3)(b). (Pl.’s Resp. 9–10, ECF No. 26.) The Court is 

not convinced. 

“The question of whether a statutory change in the law should be applied 

retroactively is governed by state law.” Rivera v. Wal-Mart Stores E., LP, No. 

3:10-cv-956-J-20TEM, 2011 U.S. Dist. LEXIS 154571, at *3 (M.D. Fla. Jan. 12, 

2011) (citing Turner v. United States, 514 F.3d 1194, 1199 n. 3 (relying upon 

Florida law to determine retroactive application of Florida statutory 

amendment)). The Supreme Court of Florida has applied a two-part analysis for 

determining whether a statute should be applied retroactively to an insurance 

policy issued prior to the statute’s enactment. See, e.g., Menendez v. 

Progressive Express Ins. Co., 35 So.3d 873, 877 (Fla. 2010). First, the Court 

must determine whether the Legislature intended for the statute to apply 

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

determine whether retroactive application would violate any constitutional 

principles. Id.; see also Rivera, 2011 U.S. Dist. LEXIS 154571, at *4 (quoting 

Menendez and applying same inquiry); Fla. Hosp. Waterman, Inc. v. Buster, 984 

So.2d 478, 487 (Fla. 2008) (same). With respect to the second prong, “[t]he 

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central focus of th[e] [c]ourt’s inquiry is whether retroactive application of the 

statute ‘attaches new legal consequences to events completed before its 

enactment.’” Menendez, 35 So. 3d at 877 (quoting Metro. Dade Cty. v. Chase 

Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999)). “The presumption against 

retroactive application is a well-established rule of statutory construction that 

is appropriate in the absence of an express statement of legislative intent.” Fla. 

Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So.3d 187, 195 (Fla. 

2011). 

Preliminarily, the Court notes that it is unclear how applying 

§ 627.70152 resolves Oceania’s statute of limitations problem. Oceania did not 

file suit until October 14, 2022. (Am. Compl. ¶ 33, ECF No. 15.) Therefore, even 

if the September 12, 2022, deadline is extended by ten business days, 

Oceania’s suit is late. As touched on above, § 627.70152 contains other tolling 

provisions, which, if applicable, might extend Oceania’s statute of limitations to 

October 14, 2022. See, e.g., § 627.70152(4)(a) (“The time limits provided in s. 

95.11 are tolled during the reinspection period if such time limits expire before 

the end of the reinspection period.”). However, Oceania nowhere argues for 

application of those other tolling provisions, focusing exclusively on 

§ 627.70152(3)(b). Therefore, the Court is left unclear as to how exactly 

§ 627.70152 tolls the statute of limitations to make Oceania’s claim timely. 

 Nonetheless, the Court need not decide the foregoing because it 

concludes that § 627.70152 does not apply retroactively to Oceania’s claim. 

“Courts considering whether § 627.70152 applies to policies issued before the 

statute’s enactment have overwhelmingly found that, because the statute 

affects substantive rights by imposing new duties on the insured, it cannot be 

applied retroactively.” Hershenhorn v. Am. Home Assurance Co., No. 2:21-CV897-JES-MRM, 2022 U.S. Dist. LEXIS 145606, at *4 (M.D. Fla. Aug. 15, 2022); 

see also O’Kelley v. Lexington Ins. Co., No. 1:22-CV-21218-KING/DAMIAN, 

2022 U.S. Dist. LEXIS 167710, at *10 (S.D. Fla. Sep. 16, 2022) (report and 

recommendation compiling cases). These courts have largely relied on the 

Florida Supreme Court’s decision in Menendez v. Progressive Exp. Ins. Co., 35 

So. 3d 873, 874 (Fla. 2010), which analyzed a pre-suit notice provision like 

that in § 627.70152. In Rosario v. Scottsdale Ins. Co., for example, this Court 

noted that Menendez “spoke[] clearly on the issue of the applicability of a new 

law that effects a substantive change to a party’s rights under an insurance 

policy.” No. 21-24005-CIV, 2022 U.S. Dist. LEXIS 11693, at *3 (S.D. Fla. Jan. 

21, 2022) (Scola, J.). Specifically, retroactive application “is to be rejected ‘if the 

statute impairs a vested right, creates a new obligation, or imposes a new 

penalty,’” and § 627.70152 “does just that: it effects a substantive change to 

the law because it ‘substantively alters an insurer’s obligation to pay and an 

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insured’s right to sue under the contract.’” Id. (quoting Menendez, 35 So. 3d at 

877, 879); see also Villar v. Scottsdale Ins. Co., No. 22-cv-21362, 2022 U.S. 

Dist. LEXIS 138534, at *11 (S.D. Fla. Aug. 3, 2022) (Bloom, J.) (same). 

Oceania argues that Rosario and other cases rejecting the retroactive 

application of § 627.70152 are distinguishable because, unlike in those cases, 

it, as the insured, is voluntarily complying with the statute’s notice provisions. 

(Pl.’s Resp. 10, ECF No. 26.) However, this is not a significant distinction.

Whether an insured voluntarily complies with the statute is irrelevant to 

whether the statute is substantive in nature. In addition, to apply the statute 

retroactively only because the insured voluntarily complies with it potentially 

engenders the inequitable situation wherein the insured is able to unilaterally 

determine when the statue governs the parties’ substantive obligations and 

rights. 

Further, to the extent Oceania argues that by voluntarily complying with 

the statue it is not imposing any obligations on the Defendants and that, as 

such, the statute’s notification procedure does not touch on any of the 

Menendez factors (Id. at 9–10.), it also misses the mark. In Menendez, the 

Florida Supreme Court rejected retroactive application of a statue like

§ 627.70152 because it substantively impacted both parties. Menendez, 35 So. 

3d at 879. Like the statute at issue in Menendez, § 627.70152 alters a 

claimant’s rights in a manner that, in turn, impacts the insurer’s obligations. 

As just one example, in response to a claimant’s pre-suit notice pursuant to 

§ 627.70152(3), § 627.70152(4) requires that an insurer “have a procedure for 

the prompt investigation, review, and evaluation of the dispute stated in the 

[claimant’s] notice and must investigate each claim contained in the notice in 

accordance with the Florida Insurance Code.” § 627.70152(3)(b)’s ten-day 

tolling provision is thus directly related to § 627.70152(4)’s specification that 

“[a]n insurer must respond in writing within 10 business days after receiving 

the notice specified in subsection (3).” Accordingly, “when viewed as a whole,” 

§ 627.70152 is a substantive statute. See Menendez v. Progressive Express Ins. 

Co., 35 So. 3d 873, 879 (Fla. 2010); see also Eichman v. Geovera Specialty Ins. 

Co., No. 3:21cv3458-MCR-HTC, 2022 U.S. Dist. LEXIS 89003, at *6-7 (N.D. 

Fla. Mar. 1, 2022) (“[A]s in Menendez, [§ 627.70152] as a whole governs 

substantive issues, including when suit may be filed, the tolling of limitations 

periods, and whether, and in what amount, statutory attorneys’ fees may be 

awarded.”). 

In sum, because § 627.70152 affects the parties’ substantive rights, it 

cannot be applied retroactively to toll the statute of limitations on Oceania’s 

claim. 

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 6 of 11
B. Equitable Estoppel 

Under Florida law, equitable estoppel requires proof of three elements: 

(1) a representation by the party estopped to the party claiming the 

estoppel as to some material fact, which representation is contrary 

to the condition of affairs later asserted by the estopped party; (2) a 

reliance upon this representation by the party claiming the estoppel; 

and (3) a change in the position of the party claiming the estoppel to 

his detriment, caused by the representation and his reliance 

thereon.

United States Life Ins. Co. v. Logus Mfg. Corp., 845 F. Supp. 2d 1303, 1318

(S.D. Fla. 2012) (Zloch, J.); see also State v. Harris, 881 So. 2d 1079, 1084 (Fla. 

2004) (same). The doctrine “is based on principles of fair play and essential 

justice and arises when one party lulls another party into a disadvantageous 

legal position[.]” Fla. Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So. 2d 1091, 

1096 (Fla. 2002). In other words, it “presupposes a legal shortcoming in a 

party’s case that is directly attributable to the opposing party’s misconduct.” 

Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 (Fla. 2001). 

Oceania argues that the Defendants should be estopped from raising the 

statute of limitations because they have been aware since August 29, 2022, 

that Oceania intended to comply with § 627.70152, but stayed silent through 

September 12, 2022, and then responded to Oceania in accordance with

statute’s notice procedures. (Pl.’s Resp. 5–7, ECF No. 26.) The Defendants 

counter by disclaiming Oceania’s assertion that neither of them questioned 

whether § 627.70152 applies. (Defs.’ Reply 4–5, ECF No. 30.) They also argue 

that Oceania has otherwise failed to identify any appropriate justification for 

equitable relief. (Id. at 5–6.) The Court agrees. 

Oceania fails to identify a single representation by the Defendants on 

which it relied in deciding to comply with the pre-suit provisions of 

§ 627.70152 instead of filing suit. Per Oceania’s own account, it decided to 

submit its notices of intent on August 29, 2022, and it wasn’t until September 

13, 2022, one day after the September 12, 2022, statute of limitations date,

that the Defendants responded. As clarified by Oceania itself, the Defendants’

responses were timely under § 627.70152(a) due to the intervening Labor Day 

holiday. (Pl.’s Resp. 3 n.3, ECF No. 26.) Therefore, Oceania’s position would 

effectively impose an affirmative obligation on the Defendants to warn it, even 

before their deadline to respond, of the running of the September 12, 2022,

statute of limitations and the inapplicability of § 627.70152. Oceania does not 

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cite, and this Court is not aware, of any authority in support of such an 

obligation. 

Further, the cases relied on by Oceania are distinguishable because in 

them, unlike here, noncompliance with the statute of limitations can be traced 

to the estopped party’s conduct. For example, the defendant in Salcedo v. 

Asociacion Cubana had “secur[ed] the dismissal of a timely-filed action by 

successfully contending that the case must be submitted to medical

mediation.” 368 So. 2d 1337, 1338 (Fla. 3d DCA 1979). “[H]aving successfully 

claimed that mediation was a required condition precedent to the filing of th[e] 

action,” it was later estopped from arguing “that the delay specifically caused 

by the pendency of that very proceeding [] resulted in the running of the statute 

of limitations.” Id. at 1339. Similarly, in Glantzis v. State Auto. Mut. Ins. Co., the 

appellee was equitably estopped from relying on the statute of limitations 

because it had accepted the appellant’s demand for arbitration in writing and 

proceeded to pick arbitrators before arguing, upon the passing of the statute of 

limitations, that the “deal was off.” 573 So. 2d 1049, 1051 (Fla. 4th DCA 1991). 

As explained by the Glantzis court, “[w]hen [the] appellants demanded 

arbitration, they also had the option to file suit[,]” but “when [the appellee] 

accepted the demand to arbitrate and proceeded along those lines, the 

necessity for [the] appellants to file suit was obviated.” Id. Unlike in these and 

the other cases relied on by Oceania, there was no conduct by the Defendants 

here that obviated Oceania’s need to meet the September 12, 2022, statute of 

limitations. The Defendants made no communications to Oceania prior to 

September 12, 2022, that suggested they accepted proceeding according to 

§ 627.70152’s pre-suit procedures in lieu of the usual litigation process.

Further, even the Defendant’s September 13, 2022, responses specified that 

they were made in compliance with “Fla. Stat. § 627.70152, if such statute 

applie[d].” (Am. Compl. ¶¶ 22–25, ECF No. 15) (emphasis added). 

Finally, Oceania’s argument that the Defendants’ current stance is a 

reversal of its previous position in state and federal courts seems to confound

the doctrines of equitable and judicial estoppel. A party seeking the invocation 

of judicial estoppel under Florida law must establish four elements:

[1] A claim or position successfully maintained in a former 

action or judicial proceeding [2] bars a party from making a 

completely inconsistent claim or taking a clearly conflicting 

position in a subsequent action or judicial proceeding, [3] to 

the prejudice of the adverse party, [4] where the parties are 

the same in both actions, subject to the “special fairness and 

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 8 of 11
policy considerations” exception to the mutuality of parties

requirement.

Boneta v. Am. Med. Sys., No. 20-CV-60409-RUIZ/STRAUSS, 2021 U.S. Dist. 

LEXIS 195531, at *12 (S.D. Fla. Oct. 11, 2021), report and recommendation 

adopted, 2021 U.S. Dist. LEXIS 200668 (S.D. Fla. Oct. 19, 2021) (Ruiz, J.)

(quoting Salazar-Abreu v. Walt Disney Parks & Resorts U.S., Inc., 277 So. 3d 

629, 631 (Fla. 5th DCA 2018); see also Bueno v. Workman, 20 So. 3d 993, 997 

(Fla. 4th DCA 2009) (“The elements of judicial estoppel are the same as 

equitable estoppel, with the added elements of successfully maintaining a 

position in one proceeding, while taking an inconsistent position in a later 

proceeding, in which the same parties and questions are involved.”). Although 

it provides a sampling of the Defendants’ motions to dismiss from other actions 

involving other parties (Pl.’s Resp. 6 n.6, ECF No. 26), Oceania does not explain 

the relevance of those unrelated actions to the current case or provide any 

authority for why the Defendants’ alleged statements in those other actions

should estop them from taking a different position here. 

In sum, the Court concludes that Oceania fails to identify any 

representation by the Defendants on which it detrimentally relied in deciding to 

forego filing its claim by September 12, 2022, and, as such, equitable estoppel 

does not bar the Defendants from raising the statute of limitations. 

C. Equitable Tolling 

“Under certain circumstances,” the doctrine of equitable tolling permits 

“the filing of a lawsuit that otherwise would be barred by a limitations period.” 

Machules v. Dep’t of Admin., 523 So. 2d 1132, 1133-34 (Fla. 1988). The 

doctrine permits “a type of equitable modification which ‘focuses on the 

plaintiff's excusable ignorance of the limitations period and on [the] lack of 

prejudice to the defendant.’” Id. at 1334 (quoting Cocke v. Merrill Lynch & Co.,

817 F.2d 1559, 1561 (11th Cir. 1987)). Further, the doctrine has generally 

“been applied when the plaintiff has been misled or lulled into inaction, has in 

some extraordinary way been prevented from asserting [its] rights, or has 

timely asserted [its] rights mistakenly in the wrong forum.” Id.

Oceania argues that, on August 29, 2022, several conditions converged 

such that it had no choice but to pursue compliance with § 627.70152’s presuit notice provisions rather than file suit before September 12, 2022. (Pl.’s 

Resp. 7–9, ECF No. 26.) Per Oceania, if it had forgone sending the pre-suit 

notices, the Defendants would surely have moved to dismiss its complaint, 

and, if successful, would have left Oceania out of court and past the statute of 

limitations. (Id. at 8.) The Defendants respond by pointing out that over nine 

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 9 of 11
months passed from the moment they denied coverage to when Oceania sent 

its notices, and that Oceania offers no explanation for this delay. (Defs.’ Reply 

2–3, 6, ECF No. 30.) Thus, they argue, Oceania’s inaction leading up to August 

29, 2022, rather than some imaginary Hobson’s choice, is the real reason why 

this suit is untimely. (Id.) The Court agrees. 

The circumstances outlined by Oceania—amounting to a last-minute

choice between complying with § 627.70152 in the hope that its tolling 

provision would apply and timely filing suit within the statute of limitations—

are not the sort to which equitable tolling has been applied. See generally 

Machules, 523 So. 2d at 1133-34. As explained in more detail above with 

respect to equitable estoppel, Oceania does not point to any facts that indicate

it was misled or lulled, by the Defendants or otherwise, into waiting until two 

weeks before the statute of limitations deadline to begin moving on its claim. 

Further, there is nothing extraordinary about the circumstances presented by 

Oceania. At most, they amount to a difficult legal decision whose potentially 

serious consequences could have been avoided if Oceania had not waited until 

the last moment to pursue its claim. See, e.g., Washington v. Keitz, No. 2:14-

CV-14470-ROSENBERG, 2015 U.S. Dist. LEXIS 196778, at *8 (S.D. Fla. June 

30, 2015) (Rosenberg, J.) (rejecting equitable tolling where plaintiffs’ counsel 

waited “over two weeks” to address an issue arising from a failed attempt to file 

complaint “two days before the statute of limitations expired”); Fowler v. Coad, 

No. 3:14-cv-309-RS-EMT, 2015 U.S. Dist. LEXIS 52765, at *10 (N.D. Fla. Apr. 

22, 2015) (“[W]hat prevented [plaintiff] from bringing a timely action against 

Defendants was his failure to file the Complaint until two days before the 

statute of limitations expired.”); Hummer v. Adams Homes of Nw. Fla., Inc., No. 

8:13-CV-1981-T-17AEP, 2014 U.S. Dist. LEXIS 28930, at *9 (M.D. Fla. Mar. 6, 

2014) (“Equitable tolling is not appropriate where the causal connection 

between nonconforming conduct and Plaintiffs’ injuries/damages was made 

known to Plaintiffs well within the statute of limitations.”). Finally, this is not a 

case where an otherwise timely assertion of rights has been made in the 

incorrect forum. 

Accordingly, the Court concludes that the circumstances surrounding 

Oceania’s late filing of its claim do not merit equitable tolling of the September 

12, 2022, statute of limitations deadline. 

4. Conclusion 

For the reasons stated above, the Court grants the Defendants’ joint 

motion to dismiss the amended complaint (Defs.’ Mot., ECF No. 20), thus 

dismissing Oceania’s case with prejudice. The Clerk is directed to close this 

case. 

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 10 of 11
Done and ordered at Miami, Florida on February 23, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:22-cv-23681-RNS Document 32 Entered on FLSD Docket 02/24/2023 Page 11 of 11