Florida’s SB 2A Ended One-Way Legal Fees. Now Some Insurers Say it’s Retroactive

Plaintiffs’ attorneys took it on the chin when Florida lawmakers in December approved Senate Bill 2A, which ended the practice of one-way attorney fees in property insurance litigation.

Now, though, a number of insurance carriers and defense firms insist that the new statute should be applied retroactively, blocking insurers’ payment of most attorney fees in cases that began long before SB 2A was signed into law.

And some policyholder attorneys are crying foul. They say it will take a few years of litigation and appeals court decisions to settle the matter.

“This is an improper interpretation of the law,” said West Palm Beach attorney Gina Clausen Lozier, who represents policyholders in insurance cases.

The statute in effect at the time an insurance contract is signed governs issues like this, according to Florida court rulings, Lozier said. In other words, if a policy was written before the attorney-fee limitation bill became law in late 2022, one-way attorney fees can still be allowed when an insured prevails over a carrier, she said.

“All of our research shows that the law is not retroactive,” said Chip Merlin, a claimants’ attorney in Tampa. “Members of the Legislature, in fact, have said it was not retroactive.”

At least two insurers in recent months have begged to differ.

In Lee County, ground zero for Hurricane Ian claims, American Integrity Insurance Co. in mid-February asked a circuit judge to strike the homeowners’ request that the insurer pay their legal fees.

“Based on recent legislation aimed at addressing excessive litigation by eliminating one-way attorney fees for property insurance, and limiting the ability to acquire fees to an offer of judgment pursuant to Fla. Stat. § 768.79 or § 57.105, plaintiffs’ claim for attorney fees … is improper, immaterial and must be stricken by this court,” American Integrity attorney Amanda Droleski wrote in her motion.

Florida’s one-way fees, allowed by statute and court rulings for more than a decade, were cited as the number one reason that insurance claims litigation exploded in the last five years. The practice was seen as a strong incentive for some claimants’ attorneys to file thousands of unnecessary, premature or even duplicative suits on homeowner claims, costing insurers millions, driving up premiums and sending 10 property insurers into the realm of insolvency in the last three years, insurers and defense lawyers have said.

SB 2A, much heralded by the insurance industry when it passed, “makes it perfectly clear that there is no right to attorney fees…,” Droleski’s motion reads. Because the homeowners filed their lawsuit in January, after the bill became law, their lawyer is not entitled to fees paid by the insurer.

In another suit, from Charlotte County, Spinnaker Insurance Co. made a similar assertion in an appeal to Florida’s 6^th District Court of Appeals. The court has asked both sides to submit briefs about the issue.

Both cases are still pending.

Case law speaks to the question, Lozier and Merlin said. In 2010, the Florida Supreme Court in Menendez vs. Progressive Express Insurance found that a Florida statute requiring notification of intent to sue could not be applied retroactively to policies issued before the amendment was enacted.

The court noted that even if the Legislature intended for the pre-suit notice provision to be applied retroactively, the court cannot accept that assertion “if the statute impairs a vested right, creates a new obligation, or imposes a new penalty.” It was considered a substantive change, not merely procedural, the justices wrote.

With SB 2A’s attorney fee provision, there was no clear legislative intent that the law should reach back in time, said Lozier, with the Clausen Choquette law firm. Interpreting the law otherwise would be a substantive change, would attach new and unexpected penalties, and would run afoul of the U.S. Constitution’s ex post facto principle, she argued.

Michael Packer, a Fort Lauderdale insurance attorney with the Marshall Dennehey firm, strongly disagreed.

“Our current analysis is that the attorney fee provision in SB 2A, which eliminates the one-way attorney fee provision, should apply to lawsuits filed after 1/1/23 or notices of intent” filed after the law took effect in December, Packer said. The right to attorneys’ fees is triggered only with the filing of a lawsuit, not the issuance of an insurance policy, he said.

The Menendez court decision and other court rulings cited by trial lawyers do not apply, Packer said. After SB 76 was passed in 2021, requiring a 10-day pre-suit notice before litigation is launched, courts decided that legal fees are linked to that pre-suit notice requirements and that fee limits cannot be retroactive.

But SB 2A does not mention and is not dependent on a notice requirement, Packer argued.

That’s a strained bit of reasoning, Merlin fired back. The Menendez decision is the most relevant guidepost and speaks directly to the issue.

“I often say the opposing insurance defense counsel are brilliant at coming up with theories of non-payment. This is another example that will be fought over in the courts until a definitive ruling is made,” he added.

Ultimately, it may take another state Supreme Court decision to clear up the differences. Until then, uncertainty may exist on legal fees in hundreds of claims.

Related: Florida Appeals Court Found that Notice of Intent Applies to All AOBs Signed After the 2019 Law Was Enacted, Even if the Policy Pre-dates the Statute.

Topics Florida Carriers