Florida Statute § 627.70152: Part 1 – A Rushed Mess

This three-part series of blog posts intends to shed light on the expedited legislative process that culminated in a hodgepodge law, Florida Statute § 627.70152.

On June 11, 2021, Governor Ron DeSantis signed Senate Bill 76, and the law took effect on July 1, 2021. Within that bill, Florida Statute § 627.70152 was created, and with it, certain requirements regarding notification of a policyholder’s intent to initiate litigation.

In its infinite wisdom, the Florida Legislature sought to utilize this notice requirement to carve out a new method for determining a policyholder’s ability to collect attorney’s fees and costs. Unfortunately, however, there is a seemingly overlooked error in the now codified law.

Part of Florida Statute § 627.70152 is premised on a policyholder, under certain circumstances, providing a “presuit settlement demand” along with their notice of intent to initiate litigation. Florida Statute § 627.70152(2)(d) defines the “presuit settlement demand” as “the demand made by the claimant in the written notice of intent to initiate litigation as required by paragraph (3)(e).” Herein lies the problem. . . . There is no (3)(e).

Although Florida Statute § 627.70152(2)(d) does go on to state that “[t]he demand must include the amount of reasonable and necessary attorney fees and costs incurred by the claimant, to be calculated by multiplying the number of hours worked on the claim by the claimant’s attorney as of the date of the notice by a reasonable rate,” no other requirements can be deduced. Further down, under Florida Statute § 627.70152(3)(a), the demand “must itemize the damages, attorney fees, and costs,” but again no further clarification.

Without the inclusion of (3)(e) referenced in the definitions section, policyholders are left attempting to discern what is legally required of them. Do they follow the remainder of (2)(d)? Do they follow (3)(a)? Maybe a guessed combination of the two?

Some may posit that this is a harmless Scrivener’s Error. Surely the courts of Florida are looking forward to applying the Scrivener’s Error Doctrine to a newly enacted yet rushed law.