DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY 

a/s/o DOLORES M. SENKO,

Appellant,

v.

GROVE ISLE AT VERO BEACH CONDOMINIUM ASSOCIATION, INC.,

Appellee.

No. 4D2023-0021

[February 28, 2024]

Appeal from the County Court for the Nineteenth Judicial Circuit, 

Indian River County; Robyn E. Stone, Judge; L.T. Case No.

312022CC001585.

Nancy W. Gregoire Stamper of Birnbaum, Lippman & Gregoire, PLLC, 

Fort Lauderdale, and Diana E. Rodriguez and Alyson Holob of Universal 

Property and Casualty Insurance Company, Fort Lauderdale, for 

appellant.

E. Taylor George and Shaun R. Koby of Lydecker LLP, Tampa, for 

appellee.

KUNTZ, J.

Universal Property and Casualty Insurance Company appeals the 

county court’s order granting Grove Isle at Vero Beach Condominium 

Association’s motion for judgment on the pleadings. The county court 

entered judgment based on its retroactive application of amendments to 

section 627.714(4), Florida Statutes (2021). We conclude the court erred 

when it retroactively applied the statutory amendments and reverse the 

court’s order granting judgment on the pleadings.

i. Background

Universal insured Dolores M. Senko’s condominium unit at Grove Isle. 

The policy, effective April 30, 2021, included a provision granting Universal 

subrogation rights. After the policy was issued, the Florida Legislature 

amended section 627.714 to state that if a condominium association’s 
2

policy does not provide the association’s insurer subrogation rights against 

an individual unit owner, then a policy issued to an individual unit owner 

cannot provide subrogation rights against the association.

After the policy was issued and the statute was amended, Senko’s unit 

sustained water damage, and Universal covered the loss. Universal sued 

Grove Isle, alleging Grove Isle negligently failed to maintain Senko’s 

exterior wall. In response, Grove Isle moved for judgment on the pleadings, 

arguing the amendment to section 627.714(4) foreclosed Universal’s 

action. Grove Isle argued that the amended statute precluded the 

subrogation claim because Grove Isle’s condominium association 

insurance policy did not grant its insurer subrogation rights against Grove 

Isle’s unit owners. In response, Universal argued that even if the 

amendment to section 627.714(4) applied, the Legislature did not intend 

it to apply retroactively. Universal also argued its retroactive application 

would unconstitutionally impair its subrogation rights, which took effect 

on April 30, 2021.

The county court agreed with Grove Isle and concluded that section 

627.714(4) applied and that Grove Isle’s insurance policy waived its

insurer’s subrogation rights against Grove Isle’s unit owners.

ii. Analysis

We focus on the county court’s retroactive application of the changes 

to section 627.714(4). The effective date of the policy Universal issued to 

Senko was April 30, 2021, and insurance contracts are generally governed 

by the law as it existed when the policy issued. Menendez v. Progressive 

Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010); Hassen v. State Farm Mut. 

Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) (“[I]t is generally accepted 

that the statute in effect at the time an insurance contract is executed 

governs substantive issues arising in connection with that contract.”).

Grove Isle disagrees and argues the dispositive date is the date the tort 

claim accrued. On that point, it argues R.A.M. of South Florida, Inc. v. WCI 

Communities, Inc., 869 So. 2d 1210 (Fla. 2d DCA 2004), controls. But 

R.A.M. is distinguishable.

R.A.M. involved an unlicensed contractor who agreed to perform 

construction work. Id. at 1213. At the time of contracting, a statute 

provided that all contracts entered by unlicensed contractors were illegal 

and unenforceable unless the contractor cured this defect by subsequently 

obtaining a license. Id. at 1214. Later, the Legislature amended the 

statute, eliminating the ability to cure. Id. Later still, the contractor 
3

obtained a license and sued on the contract. Id. The defendant argued 

illegality and inability to cure, while the contractor argued that the 

statutory right to cure created a vested contract right to cure that could 

not later be eliminated. Id. at 1214–15.

The Second District rejected the contractor’s argument, holding that 

the cure provision did not constitute a vested right under the contract, but 

a gift of “legislative grace that could be withdrawn by subsequent 

legislative action.” Id. at 1217. The court explained that because the 

contractor had no right to enforce an illegal contract, he had no rights 

under the contract until he cured by obtaining a license, and his failure to 

obtain a license before the cure provision was eliminated precluded vesting 

of any enforceable right. Id. at 1218–19.

Distinct from R.A.M., this case does not involve an illegal contract 

needing a cure. Instead, it involves an insurance contract that included a 

valid subrogation provision at the time the contract was entered. As 

Universal argues, the insurance policy was issued based on the inclusion 

of the subrogation right. The price paid for the policy was based, in part,

on Universal’s right to seek subrogation when appropriate. Thus, unlike 

in R.A.M., enforceable contract rights were created when the policy was 

issued. As such, the presumption that an insurance policy is governed by 

the law at the time the policy was issued applies. See Menendez, 35 So. 

3d at 876.

Of course, presumptions are not absolute. After the policy was issued, 

the Legislature amended subsection (4) of section 627.714 to state: “If a 

condominium association’s insurance policy does not provide rights for 

subrogation against the unit owners in the association, an insurance 

policy issued to an individual unit owner in the association may not 

provide rights of subrogation against the condominium association.” § 

627.714(4), Fla. Stat. (2021). So if the amendments to section 627.714(4)

apply retroactively, Senko’s insurer cannot exercise its subrogation rights 

against Grove Isle.1

Generally, “a substantive statute will not operate retrospectively absent 

clear legislative intent to the contrary, but . . . a procedural or remedial 

statute operate[s] retrospectively.” State Farm Mut. Auto. Ins. Co. v. Laforet, 

658 So. 2d 55, 61 (Fla. 1995) (citations omitted). We conclude the 

statutory amendments at issue were substantive. See Fla. Ins. Guar. 

Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So. 3d 187 (Fla. 2011).

1 We agree with the county court that Grove Isle’s insurance policy waives its 

insurer’s right to subrogation against Grove Isle unit owners.
4

In Devon, the statute was amended after the policy was issued to extend 

its reach to commercial insurance policies and impose penalties for failure 

to comply with new statutory requirements. Id. at 194–95. The court 

concluded that the amendments to “section 627.7015 as amended in 2005 

cannot be characterized as simply procedural or remedial, but w[ere]

clearly substantive.” Id. at 195. As a result, “the presumption against 

retroactive application of the substantive amendments to section 

627.7015 applie[d].” Id. As in Devon, the statutory amendments here 

impact a substantive right. If applied retroactively, the statute removes 

the insurer’s contractually bargained-for subrogation right that existed 

before the enactment of the statutory amendment.

For a substantive statute to apply retroactively it must satisfy a twoprong test. Menendez, 35 So. 3d at 877. “First, the Court must ascertain 

whether the Legislature intended for the statute to apply retroactively.” Id.

at 877. “Second, . . . the Court must determine whether retroactive 

application would violate any constitutional principles.” Id. Because 

“[e]ven when the Legislature . . . expressly state[s] that a statute is to have 

retroactive application, [the Florida Supreme Court] has refused to apply 

a statute retroactively if the statute impairs vested rights, creates new 

obligations, or imposes new penalties.” Laforet, 658 So. 2d at 61.

On the first prong of the test, we again turn to Devon. In Devon, the 

court determined the Legislature did not clearly intend a statutory 

amendment to apply retroactively for two main reasons. 67 So. 3d at 194–

97. First, “the text of the amendment itself [was] silent as to its forward 

or backward reach,” and, second, “the enacting law specifically state[d]

that the amendments [were] to be effective” on a particular date. Id. at 

196. The same is true here. The text of the statutory amendment was 

silent about retroactivity. But the enacting law explicitly provided that the 

legislation “shall take effect July 1, 2021.” Ch. 2021-99, Laws of Fla. In 

Devon, the court “noted that the Legislature’s inclusion of an effective date 

for an amendment is considered to be evidence rebutting intent for 

retroactive application of a law.” Devon, 67 So. 3d at 196. Nothing 

suggests the Legislature intended to apply the section 627.714(4)

amendments retroactively.

Grove Isle counters that subsection (1) of section 627.714 applies to 

“policies issued or renewed on or after July 1, 2010 . . . .” § 627.714(1).2 

2 Section 627.714(1) stated at the time the policy was issued, and still states 

today, that:
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But only subsection (1) of section 627.714 states “[f]or policies issued or 

renewed on or after July 1, 2010 . . . .” Id. The remaining language in 

subsection (1) does not discuss subrogation rights, but instead discusses 

required coverage and maximum deductibles for “loss assessment 

coverage.” Id. The different subjects addressed in subsections (1) and (4) 

suggest that the July 1, 2010 date is inapplicable to subsection (4).

As the Florida Supreme Court did in Devon, we conclude the Legislature 

did not express a clear intent to retroactively apply the amendments to 

section 627.714(4).

“Once the first inquiry is made, and only ‘[i]f the legislation clearly 

expresses an intent that it must apply retroactively, then the second 

inquiry is whether retroactive application is constitutionally permissible.’” 

Devon, 67 So. 3d at 194 (quoting Metro. Dade County v. Chase Fed. Hous.

Corp., 737 So. 2d 494, 499 (Fla. 1999) (cleaned up)). But “[because w]e 

conclude that the [statute’s] plain language . . . does not evince an intent 

that the statute apply retroactively[, w]e . . . need not address the second 

prong.” Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, 

Inc., 986 So. 2d 1279, 1284 (Fla. 2008).

iii. Conclusion

We reverse the county court’s order retroactively applying amendments 

to section 627.714(4), and remand for further proceedings.

Reversed and remanded.

KLINGENSMITH, C.J., concurs.

ARTAU, J., dissents with opinion.

ARTAU, J., dissenting.

For policies issued or renewed on or after July 1, 2010, coverage 

under a unit owner’s residential property policy must include at 

least $2,000 in property loss assessment coverage for all 

assessments made as a result of the same direct loss to the 

property, regardless of the number of assessments, owned by all 

members of the association collectively if such loss is of the type of 

loss covered by the unit owner’s residential property insurance 

policy, to which a deductible of no more than $250 per direct 

property loss applies. If a deductible was or will be applied to other 

property loss sustained by the unit owner resulting from the same 

direct loss to the property, no deductible applies to the loss 

assessment coverage.
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I respectfully dissent. In my view, the trial court did not impermissibly 

give retroactive application to section 627.714(4), Florida Statutes (2021). 

Instead, the trial court correctly applied section 627.714(4)’s amended 

version because the contractual right to bring the cause of action in this 

case did not accrue until well after the amended statute’s effective date.

As Justice Canady observed while serving on the Second District, 

“[d]etermining proper limitations on the temporal reach of statutes is a

recurring problem in the law.” R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc., 

869 So. 2d 1210, 1215 (Fla. 2d DCA 2004).

In Landgraf v. USI Film Products, 511 U.S. 244, 268-69 (1994), the 

United States Supreme Court explained that the universally accepted “ban 

on retrospective legislation” applies to “statutes, which though operating 

only from their passage, affect vested rights and past transactions.” 

However, “[a] statute does not operate ‘retrospectively’ merely because it is 

applied in a case arising from conduct antedating the statute’s enactment 

. . . or upsets expectations based in prior law.” Id. at 269 (citing Republic 

Nat’l Bank of Miami v. United States, 506 U.S. 80, 100 (1992) (Thomas, J., 

concurring in part and concurring in judgment)).

Instead, as our supreme court in Metropolitan Dade County v. Chase 

Federal Housing Corp., 737 So. 2d 494 (Fla. 1999), made clear, a statute 

can only be said to apply retroactively if it “attaches new legal 

consequences to events completed before its enactment.” Id. at 499 

(emphasis added) (quoting Landgraf, 511 U.S. at 270). As our sister court 

held in R.A.M., where a contract provides “merely an expectant and 

contingent right,” rather than “an ‘immediate, fixed right[,]’” there can be 

“no [enforceable] cause of action on the contract” or “vested right” that is 

infringed upon by application of a statute that took effect before “a cause 

of action has accrued[.]” R.A.M., 869 So. 2d at 1218-20; see also Menendez 

v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla. 2010) (explaining 

that courts will reject retroactive application of new statutory enactments 

where the new statute “impairs a vested right, creates a new obligation, or 

imposes a new penalty” (emphasis added)).

Here, the insurer’s contractual right to seek subrogation under the 

terms of its insurance policy with its insured did not mature into a “vested” 

contractual right to pursue the subrogated cause of action against the 

association until well after section 627.714(4)’s amended version became 

effective.

A contractually subrogated cause of action does not arise or vest until 

the date on which the original “rightsholder” suffers the loss giving rise to 
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the cause of action that is subrogated. See Villa Maria Nursing & Rehab. 

Ctr., Inc. v. S. Broward Hosp. Dist., 8 So. 3d 1167, 1170 n.1 (Fla. 4th DCA 

2009) (explaining that the limitations period for a contractual subrogation 

action runs “from the date of the injury to the original ‘rightsholder’” 

(quoting Allstate Ins. Co. v. Metro. Dade Cnty., 436 So. 2d 976, 979 (Fla. 

3d DCA 1983))); see also Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 

So. 3d 365, 368 (Fla. 4th DCA 2014) (noting that “[a] cause of action 

accrues when the last element constituting the cause of action occurs” 

(quoting section 95.031(1), Fla. Stat. (2005))).

“Florida law is well established that the right to sue on an inchoate 

cause of action—one that has not yet accrued—is not a vested right.”

Raphael v. Shecter, 18 So. 3d 1152, 1157 (Fla. 4th DCA 2009) (quoting 

Williams v. Am. Optical Corp., 985 So. 2d 23, 30 (Fla. 4th DCA 2008)). As 

a result, and contrary to the position taken by the majority, the insurer 

could not possibly have had a “vested,” and therefore enforceable, 

contractual right to pursue the subrogated claim against the association 

when the insurer issued its policy to the unit owner.

In my view, the trial court correctly determined in the judgment on 

review that, “at the time the [insurance] contract was executed[,]” the 

insurer “possessed only an expectant or contingent right, not an 

immediate, fixed, and vested right” to the subrogated negligence cause of 

action against the association at issue here that only matured into a 

“vested” contractual right after section 627.714(4)’s amended version 

became effective. As the trial court explained, “[t]here simply was no 

possible way for [the insurer] to know in advance what would occur, whom 

it might occur with, and on what day it might occur.” Therefore, the trial 

court correctly concluded that “[i]t [was] impossible for [the insurer] to 

possess an immediate, fixed, vested right for an unknown cause of action 

against an unknown defendant on an unknown day” when the insurer 

issued its policy to the unit owner.

No retroactive application of section 627.714(4)’s amended version can 

be said to have occurred in this case because the insurer possessed no 

“vested” contractual right to sue the association on the subrogated 

negligence claim before the enactment of the amended statute. See Adjei 

v. First Cmty. Ins. Co., 352 So. 3d 900, 905-06 (Fla. 3d DCA 2022) 

(determining that a statute governing post-loss assignments of insurance 

benefits could be applied to a claim arising under a policy issued prior to 

the statute’s enactment because the only vested rights affected were those 

arising under the assignment of benefits that occurred after the statute’s 

enactment); Blaesser v. State Bd. of Admin., 134 So. 3d 1013, 1016 (Fla. 

1st DCA 2012) (holding that a former state employee could not establish 
8

retroactive impairment of any right to renewed membership in the Florida 

Retirement System (FRS), resulting from a statute’s enactment after his 

separation from FRS-covered employment but before he returned to work 

with an FRS-covered agency, because any such right was only an 

“expectant or contingent right” that could vest only “if he [had] returned to 

FRS-covered employment” before the enactment of the challenged statute).

Moreover, the inchoate nature of the insurer’s subrogation claim, at the 

time section 627.714(4)’s amended version became effective, distinguishes 

this case from Hassen v. State Farm Mutual Automobile Insurance Co., 674 

So. 2d 106 (Fla. 1996)—the case upon which the majority relies for the 

proposition that “the statute in effect at the time an insurance contract is 

executed governs substantive issues arising in connection with that 

contract.” Id. at 108. Unlike here, where the incident giving rise to the 

subrogation claim did not occur until well after section 627.714(4)’s 

amended version became effective, the subrogation claim in Hassen vested 

two years prior to that challenged statute’s enactment when the accident 

giving rise to the covered loss occurred. See id. at 107-10.

Thus, I would affirm the trial court’s entry of judgment on the pleadings 

in favor of the association because section 627.714(4), as amended, 

barred recovery on the insurer’s subrogation claim, which was merely 

inchoate and not yet vested when the amended statute became effective.

* * *

Not final until disposition of timey filed motion for rehearing.