Denise Blumberg v. Security First Insurance Company

Summary

The Fifth District Court of Appeal of Florida held that statutory amendments eliminating an insured’s right to recover attorney’s fees could not be applied retroactively to Denise Blumberg’s property insurance policy, which was issued before the amendments. Applying the Florida Supreme Court’s Menendez retroactivity framework and its prior decision in Smith, the court concluded that the amendments lacked clear retroactive intent and impaired a substantive contractual right. The court reversed the order denying attorney’s fees and remanded for determination of an appropriate fee award.

Holdings

1. The amendments and repeals to sections 627.428 and 627.70152, Florida Statutes, cannot be applied retroactively because the Legislature did not clearly express an intent for retroactive application.
2. The statutory right to attorney's fees is substantive, and eliminating that right cannot be applied retroactively to an insurance policy issued before the statutory changes.
3. The statutory right to attorney's fees was incorporated into Blumberg's insurance policy when it was issued, so Security First could not avoid the right by relying on later statutory amendments.

Questions Presented

1. Whether amendments and repeals eliminating an insured's statutory right to attorney's fees in property-insurance litigation could be applied retroactively to a policy issued before the amendments took effect.
2. Whether retroactive application of the amendments would impermissibly impair a substantive contractual right to attorney's fees.
3. Whether the statutory right to attorney's fees was incorporated into Blumberg's insurance policy when the policy was issued.

Disposition

reversed_and_remanded