FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-0243

LT Case No. 16-2020-CA-004553

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AYMEE TAYLOR, Individually and 

on behalf of those similarly 

situated,

Appellant,

v.

STATE FARM FLORIDA 

INSURANCE COMPANY, A Florida 

Insurance Corporation,

Appellee.

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On appeal from the Circuit Court for Duval County.

Michael S. Sharrit, Judge.

Gordon Van Remmen, of Hall & Lampros, LLP, Atlanta, GA, and 

Tracy L. Markham, of Southern Atlantic Law Group, PLLC, 

Winter Haven, and William L. Sundberg and Alison M. Thiele, of 

Sundberg, P.A., Tallahassee, for Appellant.

Christopher B. Hall, of Hall & Lampros, LLP, Atlanta, GA, pro 

hac vice, for Appellant.

Nancy A. Copperthwaite, and Marcy Levine Aldrich, of Akerman 

LLP, Miami, for Appellee.

April 12, 2024
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ON MOTION FOR REHEARING 

HARRIS, J.

Appellee, State Farm Florida Insurance Company (“State 

Farm”), moved for rehearing of this Court’s February 2, 2024 

opinion reversing the trial court’s order dismissing Appellant’s, 

Aymee Taylor, complaint. We grant the motion, withdraw the 

opinion, and substitute the following opinion in its place.

In 2020, Taylor’s Jacksonville, Florida residence sustained 

water damage due to an overflowing sink. At the time, her property 

was covered by a homeowners insurance policy (the “Policy”) 

issued by State Farm. In 2021, the parties took part in an 

appraisal, which resulted in an award to Taylor for her damages, 

and State Farm promptly paid the appraisal award.

Taylor subsequently sued State Farm because the amount 

State Farm paid did not include interest. Taylor ultimately filed a 

two-count second amended complaint setting forth a contractual 

cause of action as well as a statutory claim. Following a hearing on 

State Farm’s motion to dismiss, the court entered an order 

dismissing with prejudice both of Taylor’s claims based on a 

limitation against private causes of action contained in section 

627.70131(5), Florida Statutes (2020). Taylor now argues that the 

court erred in dismissing her contractual claim based on that 

statutory limitation. We agree.

We begin our analysis by looking at the language of the Policy 

and of section 627.70131(5)(a) (“section 5(a)”). Pertinent to this 

appeal, the Policy included the following provision:

8. Loss Payment. We will adjust all losses with you. We 

will pay you unless some other person is named in the 

policy or is legally entitled to receive payment. Loss 

will be payable upon the earlier of the following:

a. 20 days after we receive your proof of loss 

and reach agreement with you; or
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b. 60 days after we receive your proof of loss 

and:

(1) there is an entry of a final judgment; or

(2) there is a filing of an appraisal award 

with us.

If we do not pay or deny a loss within 90 days after 

we receive notice of an initial, reopened, or 

supplemental property insurance claim from you and 

no factors beyond our control would reasonably 

prevent us from making payment, interest will be paid 

in accordance with Section 627.70131(5) of the Florida 

Insurance Code.

At the time the Policy was in effect,1 section (5)(a) provided:

(a) Within 90 days after an insurer receives notice 

of an initial, reopened, or supplemental property 

insurance claim from a policyholder, the insurer shall 

pay or deny such claim or a portion of the claim unless 

the failure to pay is caused by factors beyond the 

control of the insurer which reasonably prevent such 

payment. Any payment of an initial or supplemental 

claim or portion of such claim made 90 days after the 

insurer receives notice of the claim, or made more than 

15 days after there are no longer factors beyond the 

control of the insurer which reasonably prevented such 

payment, whichever is later, bears interest at the rate 

set forth in s. 55.03. Interest begins to accrue from the 

date the insurer receives notice of the claim. The 

provisions of this subsection may not be waived, 

voided, or nullified by the terms of the insurance 

policy. If there is a right to prejudgment interest, the 

insured shall select whether to receive prejudgment 

interest or interest under this subsection. Interest is 

payable when the claim or portion of the claim is paid. 

Failure to comply with this subsection constitutes a 

1 Section 627.70131 was amended in 2021 and subsection 

(5)(a) was renumbered as subsection (7)(a). 
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violation of this code. However, failure to comply with 

this subsection does not form the sole basis for a private 

cause of action.

§ 627.70131(5)(a), Fla. Stat. (2020) (emphasis added). 

The question we must resolve then is whether the prohibition 

on a standalone statutory cause of action contained in section 5(a) 

is broad enough, as the trial court concluded, to also bar a claim 

based on a breach of the insurance policy. State Farm goes to great 

lengths to demonstrate that it did not breach the Policy and 

therefore was not obligated to pay interest. As this case was 

dismissed with prejudice, reviewing that order de novo, we are 

confined to the four corners of the complaint and the policy 

attached thereto and we must accept Taylor’s factual allegations 

as true. Wilmington Sav. Fund Soc’y, FSB v. Contreras, 278 So. 3d 

744, 747 (Fla. 5th DCA 2019). Those allegations include the fact 

that the claimed breach was of the Policy resulting from State 

Farm’s failure to pay interest as the Policy said it would.2

Taylor argues that, while her claim for statutory interest may 

be barred by section 5(a), there is no similar limitation on her right 

to enforce the terms of her contract. State Farm responds that 

Taylor’s position has been consistently rejected by Florida courts. 

We find the cases relied upon by State Farm to be readily 

distinguishable.

First, State Farm relies on State Farm Florida Insurance Co. 

v. Silber, 72 So. 3d 286 (Fla. 4th DCA 2011), a case which it calls 

“analogous” to this case. However, Silber simply held that insureds 

cannot move for confirmation of an appraisal award that had 

already been paid in an attempt to recover attorney’s fees. Id. at 

289. Silber does go on to discuss section 5(a) and concludes that 

“the last sentence of the statute closes the door on any insured 

unless there is a viable independent cause of action.” Id. at 290

(emphasis added). Because there was no viable cause of action to 

2 We accept this allegation to the extent that it demonstrates 

that Taylor’s claim is for a breach of the policy and should not be 

taken as an acceptance of any legal conclusion, i.e., that a breach 

occurred.
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confirm an already-paid appraisal award, the claim for interest 

could not stand on its own. The opinion does not discuss whether 

the insured’s breach of policy claim was an independent

standalone claim sufficient to withstand section 5(a)’s ban on 

causes of action.3

State Farm relies heavily on Barbato v. State Farm Florida 

Insurance Co., 669 F. Supp. 3d 1241 (S.D. Fla. 2023), appeal 

docketed, No. 23-11645 (11th Cir. May 15, 2023), a federal trial 

court case that relied in part on the order on appeal in this case. 

In Barbato, the court found that the provisions of section 5(a) were 

“explicitly incorporated” into the insured’s policy. Id. at 1242. 

Because the policy’s only reference to State Farm’s obligation to 

pay interest was by incorporating the statute itself, the court 

concluded that section 5(a) still served to preclude their claim as 

there was no basis, independent of the statute, to establish a cause 

of action. Id. at 1244–45.

We need not decide whether the Barbato court’s holding, 

under the facts of that case, was correctly decided because our case 

is distinguishable. Taylor’s policy did not just incorporate section 

5(a) by reference, which it certainly could have done. Instead, State 

Farm decided, for whatever reason, to include a separate and 

independent loss payment provision that, like the statute, 

provided for the payment of interest. The only reference to section 

5(a) in the loss payment provision simply deals with the manner 

in which interest will be paid. We find this wholly insufficient to 

3 State Farm cites other cases that reject statutory claims 

barely clothed as contractual ones. See Riley v. Heritage Prop. & 

Cas. Ins. Co., No. 22-22893, 2023 WL 2988847 (S.D. Fla. Apr. 18, 

2023); Williams v. Universal Prop. & Cas. Ins. Co., No. 22-22890, 

2023 WL 3750608 (S.D. Fla. June 1, 2023). In those cases, courts 

rejected claims for purported breach of contracts that contained no 

express promise to pay interest, where the insureds argued that 

their contracts implicitly incorporated the terms of section 5(a). 

Those statutory claims in breach-of-contract clothing are readily 

distinguishable from the true contractual claim that we face here, 

as the parties’ contract contains an express promise to pay 

interest.
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adopt the entirety of section 5(a), including the limitation on 

actions, a goal State Farm could have easily accomplished had it 

chosen to do so. While the Barbato court correctly noted that 

section 5(a) “does not convey a private right of action for the 

recovery of unpaid interest alone,” 669 F. Supp. 3d at 1243, it fails 

to recognize that the statute says nothing about whether failure to 

perform an express contractual promise to pay interest can form 

the basis for a private cause of action. We therefore conclude that 

section 5(a) does not limit the right of an insured to file a claim for 

interest if that claim is based on an independent policy provision 

that does more than simply incorporate, implicitly or explicitly, the 

terms of section 5(a).

The parties were free to add this provision to the Policy, and 

State Farm’s decision to do so must mean something. 

Contractually obligating itself to do what the statute similarly 

provides does not “waive, void or nullify” the provisions of section 

5(a). Stated otherwise, there is nothing in section 5(a) that would

prohibit parties from creating an express contractual right to the 

interest that the statute describes; doing so does not waive, void, 

or nullify the statutory obligation that section 5(a) imposes on 

insurers. Nor does creating such an express contractual right 

waive, void, nullify, or otherwise contravene section 5(a)’s 

limitation on actions. That limitation states only that a “failure to 

comply with [section 5(a)] does not form the sole basis for a private 

cause of action”; it does not limit an insured’s ability to bring an 

action for a failure to perform an express contractual promise to 

pay interest. We therefore hold that an insurance policy that 

contains a standalone, independent obligation to pay interest can 

form the sole basis for a private cause of action that is not 

precluded by the statutory limitation on actions. We reverse the 

order of dismissal and remand this matter for further proceedings.

REVERSED and REMANDED.

SOUD and PRATT, JJ., concur.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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