ARLENE DONOVAN, APPELLANT,
v.
FLORIDA PENINSULA INSURANCE COMPANY, APPELLEE
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Arlene Donovan appealed the dismissal of her breach of homeowner's insurance contract claim against Florida Peninsula Insurance Company. The trial court dismissed based on statute of limitations and alleged failure to provide notice of loss. The court reversed, holding that the new statute of limitations provision could not be applied retroactively without clear legislative intent, and that dismissal on the notice of loss ground was improper because the record did not establish the contract's terms.
The court reversed the dismissal on both grounds. First, section 95.11(2)(e) could not be applied retroactively to Donovan's pre-May 2011 cause of action absent clear legislative intent for retroactive application, which was not evident on the face of the statute or in its legislative history. Second, the trial court erred in dismissing based on the notice of loss provision because the record did not establish whether the contract contained such a provision or whether Donovan failed to comply with it.
[1] Legislatures have the authority to modify existing remedies, including statutes of limitations, without impairing the obligation of contracts, provided a sufficient remed…
[2] A savings clause providing a reasonable period for commencing an action demonstrates legislative intent for a statute reducing the period of limitation to apply retroacti…
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Join FLexlaw to unlock all legal intelligence“It is well settled that before a statute of limitations can be applied retroactively, there must be a clear manifestation of legislative intent that the statute be given retroactive effect.”
Establishes the controlling legal standard for retroactive application of statutes of limitations
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Join FLexlaw to unlock all legal intelligenceDonovan purchased homeowner's insurance with hurricane coverage from Florida Peninsula. After Hurricane Wilma damaged her home in October 2005, an app…
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Arlene Donovan appeals the order dismissing with prejudice her cause of action for breach of a property insurance contract. The trial court dismissed the suit based on two grounds: the statute of limitations and a finding that Donovan failed to comply with the insurance contract’s notice of loss provision. We agree with Donovan that the judicial act of dismissal was not warranted on either ground, and we reverse and remand for further proceedings.
Donovan brought a complaint against the appellee, Florida Peninsula Insurance Company (Florida Peninsula), for breach of property insurance contract. Donovan alleged that she purchased homeowner’s insurance from Florida Peninsula, and that the policy included hurricane coverage. After her home was damaged by Hurricane Wilma in October 2005, an appraisal award was entered by an umpire. However, Donovan’s application for a local government permit to repair her roof was denied because the roofing material envisioned in the appraisal was no longer being manufactured. Thereupon Donovan requested from Florida Peninsula the remaining insurance benefits to complete the repairs in compliance with applicable code. In January 2010, Florida Peninsula refused and Donovan filed the underlying lawsuit in July of 2011.1
Florida Peninsula moved to dismiss the suit, arguing that it was brought more than five years after the 2005 loss and was time-barred by section 95.11(2)(e), Florida Statutes (2011), and that Donovan provided late notice of loss. The court entered an extremely brief order granting the motion based on the grounds argued by Florida Peninsula, “to wit: Statute of Limitations and Late Notice.”
The parties do not dispute that the statute of limitations period for Donovan’s contract action is five years. Instead, they dispute whether the limitations period began running when the cause of action accrued (when Florida Peninsula denied coverage) or on the date of loss (October, 2005).
Section 95.11(2)(e) became effective on May 17, 2011 after Donovan’s cause of action accrued. This statutory enactment provided that the limitations period in an action for breach of property insurance contract began running from the date of loss. Prior to the effective date of section 95.11(2)(e), a suit for breach of a property insurance contract began running from the date the cause of action accrued — that is, when coverage was alleged to have been erroneously denied. See § 95.11(2)(b), Fla. Stat. (2010) (providing for a five-year limitations period for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument”); § 95.031(1), Fla. Stat. (2010) (providing that, unless otherwise specified, the limitations period begins running when the cause of action accrues, which is “when the last element constituting the cause of ac*568tion occurs”); J-J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1050 (Fla. 4th DCA 2003) (“In regard to insurance contracts, a specific refusal to pay a claim is the breach which triggers the cause of action and begins the statute of limitations running”) (citation omitted).
The parties are in agreement that the application of section 95.11(2)(e) to Donovan’s action would be retroactive. To the extent section 95.11(2)(e) is properly regarded as a statute of limitations, as the parties believe,2 it could not be applied retroactively unless it was clear the legislature intended it to be given such application. See Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735, 736 (Fla.1987) (“It is well settled that before a statute of limitations can be applied retroactively, there must be a clear manifestation of legislative intent that the statute be given retroactive effect.”); Homemakers, Inc. v. Gonzales, 400 So.2d 965, 967 (Fla.1981) (“[A] statute of limitations will be prospectively applied unless the legislative intent to provide retroactive effect is express, clear and manifest.”); Garofalo v. Cmty. Hosp. of S. Broward, 382 So.2d 722, 724 (Fla. 4th DCA 1980) (“We start with the basic proposition that a shortening of any statute of limitations will be given retroactive application only upon the showing of clear intent by the Legislature”) (citations omitted). Section 95.11(2)(e) does not contain evidence of the legislature’s intent for retroactive application, on its face or in its legislative history. Nor does it contain a savings clause, which would allow for a period of time to file suit for those with existing causes of action-such clauses indicate the legislature’s intent for retroactive application. Carpenter v. Fla. Cent. Credit Union, 369 So.2d 935, 937 (Fla.1979).
In sum, the court erred in applying section 95.11(2)(e) retroactively in the absence of evidence of the legislature’s intent for such application.
The court also dismissed Donovan’s suit based on her alleged failure to comply with a notice of loss provision in the contract. “The trial court cannot go beyond the four corners of the complaint in deciding the merits of a motion to dismiss. When confronted with a motion to dismiss, the court is required to take the allegations of the complaint as true and to decide only questions of law.” Rohatynsky v. Kalogiannis, 763 So.2d 1270, 1272 (Fla. 4th DCA 2000) (citations omitted). However, “[a] trial court is not bound by the four corners of the complaint where the facts are undisputed and the motion to dismiss raises only a pure question of law.” Metro. Cas. Ins. Co. v. Tepper, 969 So.2d 403, 405 (Fla. 5th DCA 2007) (citation omitted).
Here, the record contains Donovan’s complaint and Florida Peninsula’s motion to dismiss, with their respective exhibits. The record before us does not establish whether the contract contained a notice of loss provision and whether Donovan failed to comply with such a provision. *569Accordingly, the trial court erred in ordering a dismissal on this ground.
It is not apparent from the record before us that Florida Peninsula was entitled to a dismissal with prejudice. We therefore reverse the order dismissing Donovan’s complaint and reinstate her cause of action for further proceedings.
Reversed and remanded for further proceedings.
MAY and KLINGENSMITH, JJ., concur.
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Authorities Cited
- Melendez v. Dreis & Krump Mfg. Co., 515 So. 2d 735 (Fla. 1987)
- Pembroke Lakes Mall Ltd. v. McGRUDER, 137 So. 3d 418 (Fla. 4th DCA 2014)
- Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981)
- Carpenter v. Fla. Cent. Credit Union, 369 So. 2d 935 (Fla. 1979)
- Carr v. Broward Cnty., 505 So. 2d 568 (Fla. 4th DCA 1987)
- Philip Morris USA, Inc. v. Hess, 95 So. 3d 254 (Fla. 4th DCA 2012)
- J.J. Gumberg Co. v. Janis Servs., Inc., 847 So. 2d 1048 (Fla. 4th DCA 2003)
- Metro. Cas. Ins. Co. v. Tepper, 969 So. 2d 403 (Fla. 5th DCA 2007)
- Rohatynsky v. Theo Kalogiannis, 763 So. 2d 1270 (Fla. 4th DCA 2000)
- Garofalo v. Cmty. Hosp. of S. Broward, 382 So. 2d 722 (Fla. 4th DCA 1980)