Florida Plaintiffs Claim Victory After Dropping Suit to Block SB 76’s Solicitation Ban

By | June 14, 2022

When the Florida Legislature approved Senate Bill 76 last year, with its restrictions on homeowner solicitation by roofing contractors, insurers saw it as a major blow against runaway fraudulent and exaggerated roof claims.

Then a contractor, Gale Force Roofing and Restoration, and others quickly filed suit against the state agency charged with enforcing the law. A federal judge in July 2021 issued an injunction, temporarily halting the solicitation provisions in the law, noting that the prohibitions may violate roofers’ constitutional right to free speech. The court action prompted outcries from the insurance industry but it ultimately led to the passage of other, far-reaching but more-nuanced legislation at the Florida special session last month.

Now, both sides in the Gale Force suit have agreed that, thanks to the recent measures signed into law, the SB 76 restrictions are moot. The same federal judge who put a hold on the 2021 law agreed Friday to dismiss the complaint.

“SB 2D is now law and resolved the complaints that plaintiffs and plaintiff intervenors raised,” reads the joint motion to dismiss the case, filed in the U.S. District Court for the Northern District of Florida. “In sum, the declaratory and injunctive relief sought in the complaints is now ‘inappropriate’ and the case is moot.”

The attorney for Gale Force Roofing said Monday that his client had essentially prevailed in the suit, had prevented the strict prohibitions from taking effect, and had forced the Legislature to revise the law.

“Gale Force won its case, and it was only dismissed because there was no further relief (other than the attorneys’ fees at issue) that the court could award,” attorney Jeremy Bailie, of Saint Petersburg, wrote in an email.

Senate Bill 2D, one of two reform bills approved during the May 23-25 special insurance session, made a wide range of statutory changes designed to limit roof claims, unnecessary claims litigation and plaintiffs’ attorney fees. It also amended the same section of state law that last year’s SB 76 addressed on roof-work solicitation.

SB 76 had prohibited any “written or electronic communication by a contractor that encourages, instructs, or induces a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage.” That included flyers, door hangers, business cards and emails.

This year’s SB 2D prohibits only those advertisements that lack a disclaimer that clearly states that the homeowner is responsible for paying the insurance policy deductible, and that a contractor offering to waive or pay the deductible is guilty of a third-degree felony.

Florida Rep. Jay Trumbull, right, House sponsor of SB 2D, and Rep. Matt Willhite, as the bill passed in the special session. (AP Photo/Phil Sears)

The only remaining question in the Gale Force suit is the amount of attorney fees racked up in the case – and who will pay them. The parties have until July 13 to file motions on fees and costs, Judge Mark Walker wrote in his June 10 order.

The motion for dismissal also raised a point that is sure to lead to some chuckles in the state capital. The motion notes that the case is ripe for dismissal because the new law overrides SB 76’s provisions, those provisions are not likely to be reenacted, and SB 2D was not adopted simply to manipulate the court’s thinking.

“First, the legislative changes were the product of serious deliberation on the part of the Florida Legislature, which met in a special session to enact comprehensive reforms to the State’s insurance laws,” the motion reads.

Those who were present at the special session may agree that while lawmakers gave a number of speeches on the pros and cons of SB 2D, they did not engage in true deliberation: The passage of the bill and its companion, SB 4D, appeared to be a foregone conclusion before the session started. The bills were said to be crafted by the governor’s office and House and Senate leadership, and hardly a word was changed during the session. Some 27 amendments were offered, including a freeze on homeowner insurance rates, but none passed.

SB 2D also added other provisions that weren’t mentioned in the motion to dismiss the SB 76 suit. One major change now bars assignees of benefits from being awarded their attorney fees, even if they prevail in lawsuits. Another limits the fee multiplier to rare cases. Insurance industry advocates have said those measures could help curtail solicitation by roofers and should greatly reduce the thousands of AOB claims lawsuits filed every month in Florida.

It remains to be seen if Gale Force Roofing will now join a lawsuit filed just days after the special session, which challenges the constitutionality of SB 2D. Bailie said he is not aware of any plans by his client to intervene.

That suit was filed in Leon County Circuit Court by Restoration Association of Florida, a group of contractors, and by Air Quality Assessors, a firm that tests for the presence of mold in homes after water leaks.

Topics Lawsuits Florida

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