January 18, 2024

Kelley Kronenberg Triumphs in Second Dismissal of Hurricane Sally Insurance Case

Kelley Kronenberg Practice Partner, Esmee Vera-Benavidez, recently secured a significant victory in a First-Party Property Insurance Defense case in the Florida Circuit Court for Escambia County. The case, presided over by The Honorable Jan Shackelford, involved a breach of contract suit arising from Hurricane Sally, with the plaintiff seeking damages totaling $80,914.52.  

This victory resulted from the dismissal of the plaintiff’s case due to their failure to comply with the statutory requirement of serving a Notice of Intent to Litigate, as mandated by Fla. Stat. 627.70152. Notably, this marked the second dismissal for the plaintiff, following a strategic move by their counsel during the initial dismissal to circumvent a prior attorney’s fee lien. 

In response to the plaintiff’s refiling of the suit, Ms. Vera-Benavidez strategically utilized Fla. Stat. 627.70152 by filing a Motion to Dismiss. The crux of the matter revolved around the plaintiff’s attempt to establish Hughes as the controlling law while disregarding Cole. Ms. Vera-Benavidez argued that Hughes and Cole, though conflicting, were pending certification for resolution by the Florida Supreme Court. Until such certification occurred, she maintained that neither case held controlling authority. Additionally, she distinguished Menendez v. Progressive, asserting its procedural status and emphasizing the Court’s prior grant of similar motions. 

The Court, in its Order, made a crucial determination by characterizing the requirements of Fla. Stat. 627.70152(3) as a procedural change in the law, not governed by Menendez v. Progressive. Consequently, the Court granted the Defendant’s Motion to Dismiss, doing so without prejudice and without leave to amend. It’s important to note that under the two-dismissal rule, any future attempts to bring forth suits on this claim are automatically barred, despite the order being stated as without prejudice.