Whether or not Bill 408 is truly retroactive may be the most compelling story line to watch over the next year. The bill itself does not necessarily contain the magical words that the changes will apply to existing claims, it would be near impossible to do that. The bill does contain language that the intent is to “clarify” the prior version of the Florida Statutes governing sinkholes. The clarification language is not surprisingly cryptic and really only specifically addressees technical or scientific” definitions and terms. Does this mean that only the changes involving scientific or technical terms will be retroactive? Does that mean then that changes such as added deadlines and neutral evaluation selection are not retro-applied? We frankly may not know the answers right now. The other issue is even if the scientific definitions (meaning the new definition of structural damage) are meant to be applied retroactively, can they? One big glaring issue with this theory is that most insurance companies here in Florida have not written their insurance policies to say that only structural damage will be covered. In fact, most insurance policies in effect right now still state that the insurance company will cover all physical damage caused by sinkhole activity. The law here in Florida is pretty clear that the insurance policy wins out over the statutes. We have also touched on the fact that there may be constitutional issues involved. Can the State of Florida step in and re-write a contract that two private parties entered into previously? No. We have also heard from reliable sources that the ACLU is now interested in this Bill and the effects it will have on citizens rights. The long story short is that if Rick Scott signs Bill 408 into effect, the fight may only be just beginning. We encourage homeowners to read their insurance policies when determining determining whether to file a claim and when deciding which insurance to buy, some may actually provide more coverage than others depending on how they are written.
May 18, 2011 by Morgan Barfield