Austin Flickstein and Lisa Vick successfully achieved a NOI Non-Compliance Dismissal.
The Plaintiff filed a lawsuit, alleging breach of Contract regarding a claim for damages resulting from Hurricane Eta. Before commencing this initial litigation, the Insured filed a Notice of Intent to Initiate Litigation on May 13, 2022, which was responded to by the Carrier. Last year, Bressler Attorneys successfully persuaded the Opposing Counsel to dismiss the case right before trial. However, because the case was dismissed without prejudice, on October 24, 2023, Plaintiff recommenced the litigation by filing a Second Complaint for Breach of Contract pertaining to the same Hurricane Eta loss.
Before recommencing the action, the Plaintiff did not file a new Notice of Intent to Initiate Litigation. Bressler Defense Counsel Lisa Vick, Esq., prepared a Motion to Dismiss for failure to comply with Fla. Stat. § 627.7152, which Principal Austin L. Flickstein, Esq, successfully argued.
In reviewing Florida Statute 627.70152, Lisa discovered that the second lawsuit filing was invalid because the Insured did not file a new Notice of Intent to Initiate Litigation. Instead, the Insured felt as though the initial Notice of Intent that was filed before the initial lawsuit was sufficient. Lisa and Austin set forth that the language of § 627.70152 requires an application to “all suits,” and while the Statute carved out an exception for suits that are counterclaims, no such exception was made for re-filed suits. Notably, the Statute could easily have been written to apply to each claim instead of each lawsuit, but it was not. The Insured also signified their ‘intent’ to abandon the litigation by filing a voluntary dismissal. Additionally, the Defendant should be entitled to subsequence notice of their intent to re-initiate litigation in case the party's positions were significantly altered regarding the damages being claimed, attorney’s fees, or the desire of the Carrier to make an offer of settlement.
Austin argued the Motion to Dismiss and won the hearing before the Honorable Kathleen Mchugh in the County Court of the 17th Judicial Circuit Broward County. The Court ultimately agreed with Austin and Lisa. The Court determined that the requirement to file a Notice of Intent to Initiate Litigation under Fla. Sta. § 627.70152 must be strictly enforced and applies to each individual lawsuit, even those re-filed after a dismissal. The Court dismissed Yarima Moreno v People’s Trust Insurance Company upon a second filing of the breach of contract lawsuit for failure to file a second Notice of Intent to Initiate Litigation prior to recommencing the litigation.