NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

EZEQUIEL CUEVAS, ) ) Appellant, ) ) v. ) Case No. 2D13-2230 ) TOWER HILL SIGNATURE INSURANCE ) COMPANY f/k/a Royal Palm Insurance ) Company, ) ) Appellee. ) ) Opinion filed January 30, 2015. Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Robert E. Biasotti and Annette Marie Lang of Biasotti and Associates, St. Petersburg, for Appellant. Anthony J. Russo and Curt Allen of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.

BLACK, Judge.- 2 - Ezequiel Cuevas appeals the final summary judgment entered in favor of Tower Hill Signature Insurance Company 1 in a dispute over a sinkhole insurance claim.

Because the trial court erred in finding that Mr. Cuevas' lawsu it was barred once Tower Hill initiated the statutory neutral evaluation process, we rev erse and remand for further proceedings. The facts relevant to our holding are few. Mr. Cuevas' home w as insured under a policy issued by Tower Hill and included sinkhole cover age. Mr. Cuevas made a claim under his policy, and Tower Hill acknowledged the exist ence of an active sinkhole and stated Mr. Cuevas' policy provided coverage for th e loss. Subsequently, both Tower Hill and Mr. Cuevas procured remediation proposals. The proposals suggested differing remediati on approaches and markedly differi ng costs for remediation. As a result, Tower Hill initiated the neutral eva luation process pursuant to section 627.7074, Florida Statutes (2011). Shortly thereafter, Mr. Cuevas filed his

lawsuit. Tower Hill filed motions for summary judgment; howeve r, the trial court stayed the litigation, as required by section 627.7074(10). Following the conclusion of neutral evaluation, the stay was lifted and the trial court heard Tower Hill's Amended First Motion for Summary Judgment (Violation of Section 627.7074(10), Florida Statutes, and "Suit Against Us" Provision).

Tower Hill contended that section 627.7074 prohibits the initi ation of judicial proceedings until the neutral evaluation process is co mplete. Further, it

asserted that because Mr. Cuevas ' policy specifically incorpora ted section

1 Tower Hill Signature Insurance Co mpany was formerly known as Ro yal Palm Insurance Company.- 3 - 627.7074(10), making it a term and condition of the contract, M r. Cuevas violated the "Suit Against Us" provision of h is insurance contract when he p rematurely filed suit. The "Suit Against Us" provision states that "[n]o action can be brought unless the policy provisions have been complied with and the action is started wi thin five (5) years after the date of loss." Therefore, according to Tower Hill, Mr. Cue vas materially breached his policy and relieved Tower Hill of any further contractual r esponsibility. Finding that Mr. Cuevas was required to participate in and com plete the neutral evaluation process before filing suit and that his suit was filed prematurely and in

contravention of both section 627.7074 and the insurance contra ct, the court granted final summary judgment in favor of Tower Hill. The summary jud gment effectively released Tower Hill from its obligations under the insurance po licy and foreclosed Mr. Cuevas from recovering his benefits. Section 627.7074(10) provides as follows: "Regardless of when noticed, any court proceeding related to the subject matter of the neutr al evaluation shall be stayed pending completion of the neutral evaluation and for 5 d ays after the filing of the neutral evaluator's report with the court." 2 This court has previously held that section 627.7074 "provides neutral evaluation as both a potential precu rsor and as a parallel, contemporaneous process" to judici al proceedings. Citizens Pro p. Ins. Corp. v. Trapeo, 136 So. 3d 670, 678 (Fla. 2d DCA 2014). Thus, neutral evaluati on is not a presuit requirement. Id. The plain language of the statute does not p reclude the filing of a

2 Although the difference in statutory language between the 2010 and 2011 versions of the stay provision of section 627.7074 has no effec t on this case, we reiterate that the stay provision is procedural and appropriate for retroactive application. See Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670, 676 (F la. 2d DCA 2014).- 4 - lawsuit during the pendency of the neutral evaluation process. Cf. §§ 400.0233(3)(a), (providing that "[n]o suit may be filed for a period of 75 days after [presuit] notice is mailed to any prospective defendant"); 429.293(3)(a) (same); 76 6.106(3)(a), Fla. Stat. (2014) (providing that "[n]o suit may be filed for a period of 90 days after [presuit] notice is mailed to any prospective defendant"). And the trial court' s finding otherwise was error. Because initiation of neutral evaluation does not precl ude the filing of a lawsuit nor violate the stay provision of section 627.7074, it also doe s not violate the "Suits Against Us" provision of the in surance policy. Tower Hill was not entitled to judgment

as a matter of law on these bases. Accordingly, we reverse the final summary judgment in favor of Tower Hill and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and CRENSH AW, JJ., Concur.