THOMAS DEMASE AND JOANNE DEMASE

v.

STATE FARM FLORIDA INSURANCE COMPANY

1 Upon State Farm’s motion to dismiss, the trial court initially dismissed the complaint on the ground that it failed to state a cause of action because it did not allege there was an underlying first-party action for insurance benefits. This court reversed in Demase v. State Farm Florida Insurance Co., 239 So. 3d 218 (Fla. 5th DCA 2018). SPECIFIC POLICY LANGUAGE THAT IS RELEVANT TO THE VIOLATIONS INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING: SEE SUBJECT POLICY: STATE FARM FLORIDA INSURANCE COMPANY POLICY NO: [redacted] COVERAGE A–DWELLING ALL ADDITIONAL COVERAGE PROVISIONS ALL COVERAGE(S) PROVIDED BY ENDORSEMENT OR RIDER THE DECLARATIONS PAGE LOSS PAYMENT OR SETTLEMENT PROVISION DUTIES IN THE EVENT OF LOSS POLICY PROVISION THE INSURANCE POLICY’S DEFINITION SECTION THE INSURANCE POLICY’S EXCLUSION OF COVERAGE PROVISIONS ALL INSURANCE POLICY PROVISIONS THAT PROVIDE COVERAGE TO THE INSURED PROPERTY ALL POLICY PROVISIONS. Ultimately, State Farm moved for summary judgment arguing the Demases’ CRN upon which the lawsuit was based was invalid. Specifically, State Farm argued that the CRN: (1) failed to identify the specific policy language at issue; (2) failed to identify the specific statutory provisions State Farm had allegedly violated; (3) failed to identify the person at State Farm most responsible for the alleged violation; and (4) failed to state with specificity the facts and circumstances giving rise to the alleged violation. In response, the Demases asserted that the motion for summary judgment was legally insufficient, that State Farm could not challenge the CRN’s sufficiency based on waiver and estoppel, that State Farm was barred from challenging the validity of the CRN because of the Department of Financial Services’ (“the Department”) acceptance of the CRN, and that the CRN was legally sufficient. The trial court granted the motion and entered final judgment for State Farm, and this appeal ensued.

2 We do not reach the merits of the Demases’ waiver argument because their initial brief fails to challenge the specific grounds on which the trial court decided the issue, and they have therefore waived argument on that point. See Hagood v. Wells Fargo, N.A., 112 So. 3d 770, 771–72 (Fla. 5th DCA 2013) (holding that issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief). authority does not determine legality of the notice and courts have an independent obligation pursuant to Article V, section 21 of the Florida Constitution to interpret statutes).

3 As this conclusion was actually decided as an essential step on the path to disposition, it does not appear to be dicta. See Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020) (“A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment.” (internal citations omitted)). v. Walgreen Drug Stores Co., 10 So. 2d 314, 316 (Fla. 1942). But see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 318 (2012) (observing that the maxim that “statutes in derogation of common law must be strictly construed” is a relic and there is no more reason to reject a fair reading of a statute that changes the common law than there is to reject a fair reading of a statute that repeals a prior statute). a. Substantial Compliance, Prejudice, and Waiver The manner in which we construe section 624.155 is important because it informs my conclusion as to the Demases’ next argument: that this court should conclude the Demases “substantially complied” with section 624.155’s CRN requirements, and, as a result, their CRN was legally sufficient. For the following reasons, I reject this argument as well. Primarily, nothing in the text of section 624.155 permits “substantial compliance” to be considered in determining the legal sufficiency of a CRN. To the contrary, the statute employs the mandatory language “shall” when specifying both the form and the content of the CRN. The statute further requires that the content be stated “with specificity.” § 624.155(3)(b), Fla. Stat. And if that were not clear enough, the statute then restates that a CRN must state the “specific” statutory language and the “specific” policy language relevant to the alleged violation. § 624.155(3)(b)1., (3)(b)4. Despite the clarity of section 624.155’s specificity requirement, the Demases urge this court to adopt a substantial compliance test employed by federal district courts, including Pin-Pon Corp. v. Landmark American Insurance Co., 500 F. Supp. 3d 1336 (S.D. Fla. 2020), and Fox v. Starr Indemnity & Liability Co., No. 8:16-cv-3254-T-23MAP, 2017 WL 1541294 (M.D. Fla. Apr. 28, 2017). In both cases, the district courts considered whether an insured’s CRN was legally sufficient where the insured substantially complied with section 624.155’s requirements. Pin-Pon Corp., 500 F. Supp. 3d at 1345; Fox, 2017 WL 1541294, at *3. Relying on QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n, 94 So. 3d 541 (Fla. 2012), both courts adopted a “substantial compliance” test, and in both cases concluded that because the insured’s CRN substantially complied with section 624.155’s requirements, the CRNs were sufficient. Pin-Pon Corp., 500 F. Supp. 3d at 1345; Fox, 2017 WL 1541294, at *3. This is problematic because the courts in Pin-Pon and Fox transplanted the substantial compliance test from substantively different soil that is inapplicable here. In Chalfonte, the case relied upon in Pin-Pon and Fox, the Florida Supreme Court considered whether the language and type- size requirements established by section 627.701(4)(a), Florida Statutes (2009), rendered a noncompliant hurricane deductible provision in an insurance policy void and unenforceable. 94 So. 3d at 552–54. The legal principle the court considered was one of remedy. So, in analyzing the issue, the court questioned whether courts could supply a remedy for violation of a statute (i.e. declaring a policy void) where the legislature did not. Ultimately, the court deferred to legislative prerogative, finding dispositive the fact that the legislature had provided no such penalty. As a result, the court concluded noncompliance did not render the contract void. Id. at 554. In analyzing the effect of failing to comply with the requirements of section 624.155, the issue also becomes one of legislative prerogative. Section 624.155 creates a statutory condition precedent to bring a cause of action. § 624.155(3)(a), Fla. Stat. And courts have found noncompliance with statutory (as opposed to contractual) conditions precedent excusable only when there are specific statutory exceptions which permit such a consideration. See, e.g., Stresscon v. Madiedo, 581 So. 2d 158, 160 (Fla. 1991) (“The fact that no prejudice has been nor can be shown is not the determining factor in this case; nor is it significant that Stresscon substantially complied with the mechanics’ lien law. The courts have permitted substantial compliance or adverse effect to be considered in determining the validity of a lien when there are specific statutory exceptions which permit their consideration.”); Lamberti v. Mesa, 29 So. 3d 446, 450 (Fla. 4th DCA 2010) (“While the doctrine of futility may excuse a party from performing a condition precedent in a contract, that doctrine does not apply to excuse a statutory condition precedent. To impose a common law doctrine to eliminate a statutory condition precedent would be to rewrite the statute.”). In my view, the legislature created a clear specificity requirement in section 624.155 and did not include an exception for substantial compliance. Cf., e.g., § 713.06(2)(c), Fla. Stat. (“The notice may be in substantially the following form . . . .”). So, similar to the reasoning in Chalfonte, because the legislature did not choose to include a substantial compliance exception, this court cannot apply one. For the same reason, I would reject the Demases’ argument that their claim should proceed because State Farm was not prejudiced by any deficiencies. A prejudice exception is also a decision for the legislature. See Stresscon, 581 So. 2d at 160. b. Legal Sufficiency of the Demases’ CRN Having provided my analytical framework, I now turn to the question of whether the Demases’ CRN complied with the requirements of section 624.155. As this court’s opinion explains, the Demases’ CRN lists virtually every statutory and policy provision available to them as insureds. And the CRN does not refer to “specific policy language” at all, choosing to instead list the headings of various policy sections with a general reference to “all policy provisions.” This “kitchen sink” approach does not satisfy the specificity requirements of section 624.155. The design of section 624.155 would crumble under the opposite conclusion. For example, the plain language of section 624.155(3)(b) demonstrates that the required information is for the purpose of providing “notice.” Section 624.155(3)(d) provides that the insurer may cure after it “receives notice.” For either of these provisions to have meaningful operative effect, the CRN must be, as the statute says, “specific.” In other words, the substance of the CRN must be stated in a way that enables the insurer to ascertain directly from the notice both the alleged violation and the steps it must take to cure the violation. See Specific, American Heritage Dictionary of the English Language (5th ed. 2011) (explicitly set forth; definite; clear or detailed in communicating). A CRN which simply regurgitates every statutory and policy provision fails to meet this requirement. Thus, the trial court properly concluded the Demases’ CRN was legally insufficient.