WATER DAMAGE EXPRESS, LLC a/a/o JOANNE DILLARD v. FIRST PROTECTIVE INSURANCE COMPANY D/B/A FRONTLINE INSURANCE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

WATER DAMAGE EXPRESS, LLC a/a/o JOANNE DILLARD,
Appellant,

v.

FIRST PROTECTIVE INSURANCE COMPANY
d/b/a FRONTLINE INSURANCE,
Appellee.

No. 4D21-618

[March 16, 2022]

Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Melanie Surber, Judge; L.T. Case No. 50-2019-CC-007595-
XXXX-MB.

Yasmin Gilinsky, Christopher Tuccitto, and James D. Underwood of
Florida Advocates, Dania Beach, for appellant.

Jay M. Levy of Jay M. Levy, P.A., Miami, for appellee.

FORST, J.

Appellant Water Damage Express appeals the trial court’s order
granting appellee First Protective Insurance’s (“Insurer”) motion to strike
Appellant’s motion for attorney’s fees. On appeal, Appellant argues that
because the legislature never intended for section 627.7152(10), Florida
Statutes (2019) to apply retroactively, the trial court erred in finding that
section 627.7152(10) barred Appellant from recovering attorney’s fees. We
agree with Appellant, reverse the trial court’s decision, and remand for
further proceedings.

Background

On August 12, 2018, the homeowners incurred substantial fire damage
to their residential property. The property was subject to a homeowners
policy issued by Insurer prior to the loss. The homeowners filed a claim
with Insurer seeking reimbursement for their damages.
 On August 27, 2018, the homeowners entered into an assignment of
benefits agreement (“AOB”) with Appellant in exchange for Appellant’s
remediation services. The AOB gave Appellant the right to be reimbursed
by Insurer for its services.

On June 13, 2019, Appellant filed a breach of contract claim against
Insurer, asserting that Insurer owed Appellant $7,624.24 dollars in breach
of contract damages plus interest and attorney’s fees. Insurer did not
contest its liability for the $7,624.24 in damages or Appellant’s right to
prejudgment interest. However, Insurer did contest Appellant’s statutory
claim to attorney’s fees.

Appellant had contended its right to attorney’s fees was governed by
section 627.428(1), Florida Statutes (2018), the controlling statute for
attorney’s fees in an assignment of benefits action at the time when the
Insured and Appellant entered the AOB. Insurer, on the other hand,
asserted that Appellant’s attorney’s fees claim was governed by section
627.7152(10), Florida Statutes (2019), the controlling statute when
Appellant filed suit.

Accordingly, Insurer filed a motion to strike Appellant’s request for
attorney’s fees, claiming section 627.7152(10) barred recovery. In
response to Insurer’s motion to strike, Appellant argued section 627.428(1)
controlled its attorney’s fees claim because section 627.428(1) controlled
at the time of loss. Furthermore, Appellant claimed section 627.7152
could not be applied retroactively because it concerned substantive—not
procedural—rights.

The trial court granted Insurer’s motion to strike. The trial court
determined section 627.7152(10)’s plain language “clearly states” the
statute applies to the date the suit is filed—not the date that the AOB is
entered. This appeal followed.

Analysis

When the denial of a motion for attorney’s fees is predicated on
statutory interpretation, we review the underlying questions de novo.
Destination Boat Clubs, Inc. v. Island Breeze Boat Club & Rental Inc., 226
So. 3d 301, 303 (Fla. 2d DCA 2017).

Section 627.7152(10) pertains to the recovery of attorney’s fees in “a
suit related to an assignment agreement for post-loss claims arising under
a residential or commercial property insurance policy . . . .” §

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627.7152(10), Fla. Stat. (2019). Attorney’s fees and costs for such suits
“may be recovered by an assignee only under s. 57.105 and this section.”
Id. Before section 627.7152’s enactment in 2019, the award of attorney’s
fees relative to insurance policy disputes was controlled by section
627.428(1). 1 The parties agree that Appellant would have a valid claim to
attorney’s fees under section 627.428(1), but would not be able to recover
such fees under section 627.7152(10).

Thus, the fundamental question in this case is whether the motion for
attorney’s fees is governed by: (a) section 627.428(1), the statute in effect
when the homeowners became insured by Insurer, when the homeowners
suffered a covered loss, and when the AOB agreement was entered; or (b)
section 627.7152(10), the statute in effect when Appellant filed suit.

The trial court sided with Insurer and found “the plain language of
section 627.7152[] clearly states that it’s related to the date the suit is filed
and not the date the assignment of benefits is signed.”

However, the trial court’s interpretation of section 627.7152 is
contradicted by the face of the statute. Section 627.7152(13) states, “[t]his
section applies to an assignment agreement executed on or after July 1,
2019.” (emphasis added). Although the legislature later moved the
effective date of the legislation to May 24, 2019—see 2019 Florida House
Bill No. 337, Florida One Hundred Twenty-First Regular Session—it never
evinced any intent for section 627.7152 to apply retroactively to
assignment agreements executed before May 24, 2019.

In Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla.
2010), the Florida Supreme Court found that “the statute in effect at the
time an insurance contract is executed governs substantive issues arising
in connection with that contract.” Id. (emphasis added) (quoting Hassen
v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996)). The
statutory right to attorney’s fees is substantive, and accordingly statutes
limiting the right to recover attorney’s fees do not apply retroactively. Id.
at 878–79 (holding that a statutory amendment could not be permitted to
apply retroactively because that would permit “an insurer to avoid an
award of attorneys’ fees, which constitutes a substantive change to the

1Section 627.428(1) was amended in 2021 to add the following statement: “In a
suit arising under a residential or commercial property insurance policy not
brought by an assignee, the amount of reasonable attorney fees shall be awarded
only as provided in s. 57.105 or s. 627.70152, as applicable.” Ch. 2021-77, § 9,
Laws of Fla.

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statute in effect at the time the insureds’ insurance policy was issued”);
Timmons v. Combs, 608 So. 2d 1, 2–3 (Fla. 1992). The supreme court has
also found that—prior to its replacement by section 627.7152—“the terms
of section 627.428 [were] an implicit part of every insurance policy issued
in Florida.” State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla.
1993).

Several federal courts have addressed the issue before us. These courts
determined the legislature did not express an intent for section
627.7152(10) to apply retroactively and, regardless, “Florida law is clear
that the statutory right to attorney’s fees is a substantive right and that
the ‘statute in effect at the time an insurance contract is executed governs
substantive issues arising in connection with that contract.’” Procraft
Exteriors, Inc. v. Metro. Cas. Ins. Co., No. 2:19-CV-883, 2020 WL 5943845,
at *3 (M.D. Fla. May 13, 2020) (quoting Menendez, 35 So. 3d at 876). See
also CMR Constr. & Roofing, LLC v. Hartford Ins. Co. of the Midwest, No.
9:19-CV-81610, 2020 WL 264671, at *1 (S.D. Fla. Jan. 17, 2020),
reconsideration denied, No. 9:19-CV-81610, 2020 WL 1043799 (S.D. Fla.
Mar. 4, 2020) (“[T]he statutory change—which limits the right to recover
attorney fees, impairing a substantive right—nevertheless does not apply
retroactively to the insurance policy at issue in this action, which was
issued before the effective date of the change.”). Similarly, the court in JPJ
Companies held that section 627.7152 could not be applied retroactively
regardless of the legislature’s intent:

Here, the Court does not read Fla. Stat. § 627.7152 as
reflecting an intent by the Florida Legislature for the
change to § 627.7152(10) to apply retroactively, and
Defendant has pointed to no other expression of an
intent by the Legislature for the statutory change to
apply retroactively. See generally Fla. Stat. § 627.7152.
Even if the Legislature expressed such an intent, the
statutory change—which limits the right to recover
attorney fees, impairing a substantive right—
nevertheless does not apply retroactively to the
insurance policy at issue in this action, which was
issued before the effective date of the change.

JPJ Companies, LLC v. Hartford Ins. Co. of the Midwest, No. 9:19-CV-
81696, 2020 WL 264673, at *2 (S.D. Fla. Jan. 17, 2020), reconsideration
denied, No. 9:19-CV-81696, 2020 WL 1043798 (S.D. Fla. Mar. 4, 2020).

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 Additionally, one federal court focused on the date of the AOB, rather
than the date the insurance policy was issued, noting:

Fla. Stat. § 627.7152 explicitly applies to assignment
agreements between an insured and an assignee. See Fla.
Stat. § 627.7152. In other words, the statute only applies if
an assignment agreement exists. See id. Thus, the statute
itself strongly suggests by its plain language that the date of
the assignment agreement controls.

Castilla Roofing, Inc v. Hartford Ins. Co. of the Midwest, No. 2:19-CV-613,
2020 WL 821051, at *3 (M.D. Fla. Jan. 30, 2020), report and
recommendation adopted sub nom. Castilla Roofing, Inc. v. Hartford Ins. Co.
of the Midwest, No. 2:19-CV-613, 2020 WL 820235 (M.D. Fla. Feb. 19,
2020) (emphasis added). The court rejected the argument that “the
operative date to consider is the date the litigation commenced,” finding
that “the plain language of Fla. Stat. § 627.7152 does not support [this]
argument.” Id.

In the instant case, Insurer issued a property insurance policy to the
homeowners at some point before August 12, 2018, the date of the covered
loss. The homeowners and Appellant signed an AOB on August 27, 2018.
All three of these pertinent events occurred before May 24, 2019, the
effective date of section 627.7152(10). Moreover, section 627.7152(10)’s
plain language does not demonstrate a legislative intent to designate the
date a complaint was filed as the reference point for determining the
applicability of the 2019 statutory amendment. To the contrary, section
627.7152(10), as amended, states, “[t]his section applies to an assignment
agreement executed on or after [May 24, 2019].” § 627.7152(13), Fla. Stat.
(2019). Per Menendez and the statute’s plain language, whether the
pertinent focus is the date when Insurer issued the policy or the date when
the AOB was entered, retroactive application of section 627.7152(10) is
impermissible.

Conclusion

As set forth above, the trial court erred in striking Appellant’s section
627.428(1) motion for attorney’s fees. As Insurer agrees that Appellant is
otherwise entitled to attorney’s fees under section 627.428(1), this matter
is remanded for the trial court to enter an order denying Insurer’s motion
to strike Appellant’s motion for attorney’s fees, granting Appellant’s motion
for reasonable attorney’s fees and costs, and setting an evidentiary hearing
to determine the amount of fees and costs to be awarded.

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 Reversed and remanded for proceedings consistent with this opinion.

CIKLIN and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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