DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

GARRETT BUIS and MISTY BUIS,

Appellants,

v.

UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,

Appellee.

No. 2D2023-0655

September 6, 2024

Appeal from the County Court for Pinellas County; John Carasass, 

Judge.

Barbara Hernando and Dean Makris of Makris & Mullinax, P.A., Tampa; 

and Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., 

Tampa, for Appellants.

Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for Appellee.

ATKINSON, Judge.

Garrett and Misty Buis appeal the trial court's final order 

dismissing their action against Universal Property & Casualty Insurance 

Company for failure to comply with the presuit notice requirement in

section 627.70152(3), Florida Statutes (2021). See § 627.70152(3)(a) ("As 

a condition precedent to filing a suit under a property insurance policy, a 
2

claimant must provide the department with written notice of intent to 

initiate litigation on a form provided by the department."). We reverse 

and remand for further proceedings.

The Buises contend that the trial court erred by applying section 

627.70152 retroactively to an action founded on their homeowners'

insurance policy that was issued before the statute's effective date of 

July 1, 2021. See Hassen v. State Farm Mut. Auto. Ins., 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."). Our review is de novo. See 

Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 947 (Fla. 2011) ("The 

question of whether a statute applies retroactively or prospectively is a 

pure question of law; thus, our standard of review is de novo."); Swope 

Rodante, P.A. v. Harmon, 85 So. 3d 508, 509 (Fla. 2d DCA 2012) ("This 

court reviews an order granting a motion to dismiss de novo."). 

The parties have not challenged whether enforcement of the 

statutory provisions enacted after the insurance policy was issued would 

constitute retroactive application. See Love v. State, 286 So. 3d 177, 187 

(Fla. 2019) ("A statute does not operate 'retrospectively' merely because it 

is applied in a case arising from conduct antedating the statute's 

enactment . . . . Rather, the court must ask whether the new provision 

attaches new legal consequences to events completed before its 

enactment." (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269–70 

(1994))); Metropolitan Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 

494, 499 (Fla. 1999) (same). Rather, without disputing that application 

of section 627.70152 to the Buises' cause of action does constitute 

retroactivity, the question presented by the parties is whether such a 

retroactive application is permissible. 
3

In evaluating whether it is permissible to apply a statute 

retroactively, the court applies a two-pronged test: (1) "whether the 

Legislature intended for the statute to apply retroactively" and (2) "if such 

an intent is clearly expressed, . . . whether retroactive application would 

violate any constitutional principles." Menendez v. Progressive Exp. Ins., 

35 So. 3d 873, 877 (Fla. 2010); see also Fla. Ins. Guar. Ass'n v. Devon 

Neighborhood Ass'n, 67 So. 3d 187, 196 (Fla. 2011) ("Our precedent 

makes abundantly clear that in determining the question of retroactivity 

of a legislative enactment, the court must apply the two-prong test—

beginning with a search for clear evidence of legislative intent for 

retroactivity."). Under the second prong, retroactive application is 

unconstitutional "if the statute impairs a vested right, creates a new 

obligation, or imposes a new penalty." Menendez, 35 So. 3d at 877

(citing State Farm Mut. Auto. Ins. v. Laforet, 658 So. 2d 55, 61 (Fla. 

1995)); see also Chase Fed. Hous. Corp., 737 So. 2d at 499.

We are not the first appellate district to address the retroactivity of 

section 627.70152. The Third and Fourth Districts have concluded that 

section 627.70152 can apply retroactively because it contains clear 

legislative intent for retroactive application and is procedural in nature. 

See Cantens v. Certain Underwriters at Lloyd's London, 388 So. 3d 242, 

245 (Fla. 3d DCA 2024); Cole v. Universal Prop. & Cas. Ins., 363 So. 3d 

1089, 1093 (Fla. 4th DCA 2023). Conversely, the Sixth District has 

concluded that section 627.70152 cannot apply retroactively because it 

lacks clear legislative intent for retroactive application and is substantive 

in nature. See Hughes v. Universal Prop. & Cas. Ins., 374 So. 3d 900, 

910 (Fla. 6th DCA 2023), review granted, No. SC2024-0025, 2024 WL 

1714497 (Fla. Apr. 22, 2024). 
4

Accepting the presumption that enforcement of section 627.70152 

in this case constitutes retroactive application of the statute, we 

conclude, as did the Sixth District, that the requisite legislative intent for 

such retroactive application is lacking. The statute is silent regarding 

whether it applies to insurance policies issued prior to its enactment. 

But the statute does contain an effective date of July 1, 2021, and the 

supreme court has construed the existence of an effective date in a 

statute as evidence rebutting intent for retroactive application. See 

Devon Neighborhood Ass'n, 67 So. 3d at 196 ("We have 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." (citing Dep't of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 

358 (Fla. 1977))); Zuckerman-Vernon Corp., 354 So. 2d at 358 ("The 1977 

Legislature's inclusion of an effective date of July 1, 1977, in Ch. 77-281 

effectively rebuts any argument that retroactive application of the law 

was intended.").

We reject Universal's argument—which is consistent with the 

rationale adopted by the Third and Fourth Districts—that the statute's 

application to "all suits" indicates clear legislative intent for retroactive 

application. See § 627.70152(1) ("This section applies exclusively to all 

suits not brought by an assignee arising under a residential or 

commercial property insurance policy . . . ."); Cantens, 388 So. 3d at 245 

(concluding that section 627.70152 contains clear legislative intent for 

retroactivity because it applies to "all suits" regardless of when the policy 

was issued); Cole, 363 So. 3d at 1093 (same). Read in context, the

phrase "all suits" is modified by a description of the type of plaintiff and 

lawsuit for which section 627.70152 applies, not the timing of the

insurance policies that are governed by the statute. See Ham v. Portfolio 
5

Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020) ("In interpreting [a]

statute, we follow the 'supremacy-of-text principle'—namely, the principle 

that '[t]he words of a governing text are of paramount concern, and what 

they convey, in their context, is what the text means.' " (second alteration 

in original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 56 (2012))). In other words, the language "all 

suits" informs the reader that the statute only applies to suits involving

plaintiffs who are not "assignee[s]" and that arise under "residential or 

commercial property insurance polic[ies]" and that the statute excludes

suits involving plaintiffs who are assignees and that arise under other 

insurance policies such as automobile or personal injury policies. 

In addition, an expansive reading of the "all suits" language to 

indicate universal temporal inclusivity does not take into consideration 

the term "exclusively," a word which indicates that the sentence in which 

it appears is intended to narrow the application of the statute to certain 

types of cases to the exclusion of others—not to be expansively inclusive 

of cases based on insurance policies issued before and after the statute 

was enacted. By use of the term "exclusively," the provision is excluding 

from its purview those suits that are "brought by an assignee arising 

under a residential or commercial property insurance policy" and 

accomplishing that exclusion by use of the phrase "all suits" to indicate 

all those suits that are "not brought by an assignee arising under a 

residential or commercial property insurance policy." (Emphasis added.) 

There is nothing in the language of the statute to indicate that the 

phrase "all suits" is serving another purpose of expanding its reach to

those suits based on policies that both predate and postdate the 

enactment of the statute. To the contrary, an interpretation of the 

phrase "all suits" as an expansive temporal indicator is one that 
6

disregards the contextual clue of use of the term "exclusively" in the 

phrase "exclusively to all suits." See Heart of Adoptions, Inc. v. J.A., 963 

So. 2d 189, 198 (Fla. 2007) ("We are required to give effect to 'every word, 

phrase, sentence, and part of the statute, if possible, and words in a 

statute should not be construed as mere surplusage.' " (quoting Am.

Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 

2005))).

Universal and other proponents of the view that the phrase "all 

suits" evinces an intent that the statute be applied retroactively are 

reading only a part of the pertinent phrase—"exclusively to all suits"—

and ignoring the rest of it by myopically training their focus on the two 

words "all suits." This blinkered view is apparent in the opinions of the 

Third and Fourth Districts, which examine an incomplete rewriting of the 

statute that omits salient portions of the phrase at issue. The Third 

District refers to the statute as applying to "all suits arising under a 

residential or commercial property insurance policy," Cantens, 388 So. 

3d at 244, 245, and the Fourth District refers to the provision as 

applying "exclusively to all suits . . . arising under a residential or 

commercial property insurance policy," Cole, 363 So. 3d at 1092 (ellipses 

in original). These rewritings of the statute by omission ignore one or 

both of the phrases "exclusively to" and "not brought by an assignee"

that, when considered, bear upon the meaning of the sentence at issue: 

"This section applies exclusively to all suits not brought by an assignee

arising under a residential or commercial property insurance policy . . . ." 

§ 627.70152(1) (emphasis added). Consideration of the phrases 

apparently ignored by the Third and Fourth Districts undermine those 
7

courts' expansive reading of the language as referring in any manner to 

the timing of when the underlying insurance policy was issued.1 

All that is to say that section 627.70152 does not contain a clear 

expression of legislative intent that the presuit notice requirement is to 

be applied retroactively to insurance policies issued prior to the effective 

date of the statute. See Menendez, 35 So. 3d at 877 (providing that 

legislative intent for retroactive application must be "clearly expressed"). 

The statute is silent in that respect, and the statute's effective date 

supports a conclusion that its only application should be prospective. 

See Devon Neighborhood Ass'n, 67 So. 3d at 196 (concluding there was 

no "clearly expressed legislative intent" for retroactive application where 

the statute was "silent as to its forward or backward reach" and included

an effective date). 

Because we conclude that section 627.70152 does not contain a 

clear expression of intent for retroactive application, the statute cannot 

be retroactively applied, and it is unnecessary to consider the second 

prong regarding whether retroactive application would violate any 

constitutional principles. Case law is clear that the second prong of the 

analysis need not be reached if it is concluded that retroactive intent is 

not clearly expressed in the statute. See Devon Neighborhood Ass'n, 67 

So. 3d at 197 ("Because we have reached this conclusion under prong 

1 In Cantens, the Third District mischaracterized Menendez as 

having concluded that the statute in that case "evinced a clear

expression of legislative intent to apply retroactively" "because" the 

statute at issue "applied to 'any action.' " 388 So. 3d at 244 (citing 

Menendez, 35 So. 3d at 877). Menendez did not premise its conclusion 

"that the Legislature intended for the statutory presuit notice provision to 

be applied retroactively" on the statute's inclusion of the phrase "any 

action." Menendez, 35 So. 3d at 877. In Menendez, the supreme court 

did not elaborate at all on why it reached that conclusion. And there is 

no discussion whatsoever involving the phrase "any action."
8

one of the two-prong test, we need not address whether retroactive 

application of the amendments would be constitutional."); Old Port Cove 

Holdings, Inc. v. Old Port Cove Condo. Ass'n One, 986 So. 2d 1279, 1284 

(Fla. 2008) (providing that, in the absence of clear legislative intent for 

retroactive application of a statute, the court "need not address the 

second prong"). As such, to the extent that the question of whether the 

new provisions in section 627.70152 are substantive or procedural is a 

necessary component to the second prong, we need not resolve that 

question—a question that would be controlled by Menendez's binding 

determination that the newly enacted presuit notice provisions at issue 

in that case were substantive such that retroactive application would be 

unconstitutional under the second prong because it impairs a vested 

right, creates a new obligation, or imposes a new penalty.

2 See Hughes, 

374 So. 3d at 907 ("Even if we agreed with the Fourth District that 

2 The rationale expressed by the supreme court in Menendez—

which we are bound to follow—that taken "as a whole," the statute "is a 

substantive statute," see 35 So. 3d at 879, would also bear upon the 

threshold determination of whether applying the statutory provision to 

the case would "truly" constitute retroactive application because 

"whether a new procedural statute applies in a pending case will 

generally turn on the posture of the case, not the date of the events 

giving rise to the case[,] [a]nd if the new procedure does apply, that is not 

in and of itself a retrospective operation of the statute," see Love, 286 So. 

3d at 187 (emphasis added); see also Landgraf, 511 U.S. at 275 ("[T]he 

fact that a new procedural rule was instituted after the conduct giving 

rise to the suit does not make application of the rule at trial 

retroactive."); Love, 286 So. 3d at 187 ("Here, although section 

776.032(4) may make it more difficult—as a practical matter—for the 

State to proceed to trial, the statute in no way 'attaches new legal 

consequences to events completed before its enactment.' Therefore, even 

if applied in a pending case, section 776.032(4) is not truly a 

retrospective statute." (citation omitted) (quoting Landgraf, 511 U.S. at 

270)). 
9

section 627.70152 contains clear evidence of legislative intent to apply 

the statute retroactively, we would nonetheless find that the statute is 

substantive and therefore cannot be applied retroactively. Simply put, 

Menendez's holding compels a finding that section 627.70152 is 

substantive in nature." (emphasis added)). Without answering that 

question, we are able to conclude that, under controlling case law, the 

trial court erred by retroactively applying section 627.70152 to the 

Buises' insurance policy. 

We reverse the trial court's order granting Universal's motion to 

dismiss and remand for further proceedings. We certify conflict with 

Cantens v. Certain Underwriters at Lloyd's London, 388 So. 3d 242 (Fla. 

3d DCA 2024), and Cole v. Universal Property & Casualty Insurance Co., 

363 So. 3d 1089 (Fla. 4th DCA 2023).

Reversed and remanded; conflict certified.

NORTHCUTT J., Concurs.

KHOUZAM, J., Concurs specially.

KHOUZAM, Judge, Specially concurring.

I concur in all respects except for the discussion of the statutory 

word "exclusively," which I do not believe bears on the issue of 

retroactivity in this case.

Opinion subject to revision prior to official publication.