DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY a/s/o VIRGILIO PEREZ Y. PEREZ and SIRKKA PEREZ, Appellant, v. LAGUNA RIVIERA CONDOMINIUM ASSOCIATION, INC., Appellee.

No. 2D23-34

March 1, 2024 Appeal from the Circuit Court for Manatee County; Edward Nicholas, Judge.

Nancy Gregoire Stamper of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; Jourdan Weltman and Alyson Holob of Universal Property and Casualty Insurance Company, Fort Lauderdale; for Appellant.

E. Taylor George and Shaun R. Koby of Lydecker LLP, Tampa, for Appellee.

LABRIT, Judge.

Universal Property and Casualty Insurance Company appeals an adverse final judgment in a negligence action it brought—as subrogee of its insureds, Virgilio and Sirkka Perez—against Laguna Riviera Condominium Association. We affirm because the trial court properly applied section 627.714(4), Florida Statutes (2022), in entering judgment for the Association.

I.

In January 2021, Universal issued a property insurance policy to the Perezes, owners of a unit within the Laguna Riviera Condominiums.

The policy was for a term ending in January 2022. The complete policy is not in the record, but it undisputedly contains a provision that subrogates Universal to the rights of the Perezes to the extent of any payment made under the policy.

After Universal issued the policy, the legislature amended the insurance code and added the following language to section 627.714(4): If a condominium association's insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.

Ch. 2021-99, § 1, Laws of Fla. This amendment effectively precludes a unit owner's insurer from suing an association in subrogation if the association's insurer doesn't have a reciprocal right to sue unit owners.

And pertinent here, this amendment became effective on July 1, 2021.

Id. at § 27.

On July 13, 2021, a main pipe within the Laguna Riviera Condominiums failed and damaged the Perezes' unit. Universal paid $125,000 to cover the loss. It then filed a negligence complaint against the Association, as subrogee of the Perezes, alleging that the Association's failure to inspect, maintain, test, or repair the main pipe caused the loss. The Association answered the complaint and asserted section 627.714(4) as an affirmative defense. The Association also attached a copy of its insurance policy to its pleading, showing that the Association's insurer had "waive[d] [its] rights to recover payment from any unit-owner" through the policy it issued to the Association.

Based on this waiver and the language of section 627.714(4) as amended, the Association moved for judgment on the pleadings. It argued that the statute bars Universal's action because the Association's policy does not provide for rights of subrogation against unit owners.

The trial court agreed. It granted the Association's motion for judgment on the pleadings and entered final judgment for the Association.1 This is Universal's appeal. We review the trial court's decision de novo.

Hilbrands v. Hilbrands, 320 So. 3d 938, 939 (Fla. 2d DCA 2021) (citing U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So. 3d 477, 479 (Fla. 2d DCA 2013)).

II.

Universal argues, as it did below, that its subrogation rights vested in January 2021 when it issued its policy and that the July 2021 amendment to section 627.714(4) does not and cannot apply retroactively to impair its vested contract rights. For its part, the Association contends that Universal's subrogation rights didn't and couldn't vest until the loss occurred on July 13, 2021—after the amendment's effective date—and that the trial court properly applied the statutory amendment prospectively. Thus, the dispositive question is whether Universal had a vested subrogation right against the Association when section 627.714(4) became effective on July 1, 2021.

Our decision in R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla. 2d DCA 2004), is instructive. There, we considered whether a statutory amendment barred an unlicensed contractor's claims, even though the claims would have been viable under the version of the statute in effect when the contractor signed its

In so holding, we explained the critical difference between vested and fixed rights on the one hand, and expectant or contingent ones on the other. Id. at 1218. "A vested right has been defined as 'an immediate, fixed right of present or future enjoyment' and also as 'an immediate right of present enjoyment, or a present, fixed right of future enjoyment.' " Id. (quoting City of Sanford v. McClelland, 163 So. 513, 514–15 (Fla. 1935)). In other words, rights "are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest." Id. (quoting Pearsall v. Great N. Ry. Co., 161 U.S. 646, 673 (1896)). Conversely, rights "are expectant when they depend upon the continued existence of the present condition of things until the happening of some future event." Id. (quoting Pearsall, 161 U.S. at 673). And "[t]hey are contingent when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting." Id. (quoting Pearsall, 161 U.S. at 673).

Here, Universal's subrogation rights were not immediate or fixed in January 2021 when it issued the Perezes' policy. That is, Universal was not immediately subrogated to the rights of the Perezes because "no right of subrogation arises until the claim has been paid." See 16 Couch on Insurance § 223:3 (3d ed. 2023); see also Nat'l Sur. Corp. v. Bimonte, 143 So. 2d 709, 710 (Fla. 3d DCA 1962) (stating that a claimant's "right to

subrogation was not perfected until it paid the claim of its indemnitee in full" (first citing Fowler v. Lee, 143 So. 613, 614 (Fla. 1932); and then citing Whyel v. Smith, 134 So. 552, 554 (Fla. 1931))); accord Dadeland Dodge Inc. v. Am. Vehicle Ins. Co., 698 So. 2d 929, 931 (Fla. 3d DCA 1997). Instead, when the policy incepted, Universal's subrogation rights were contingent on a future event—namely Universal's payment of a covered loss—and its rights were expectant because they depended on the law not changing during Universal's policy period. It is of course beyond dispute that the legislature had the authority to amend section 627.714(4). And when it did so, Universal's subrogation rights were not vested.

It is likewise "well established that the right to sue on an inchoate cause of action—one that has not yet accrued—is not a vested right because no one has a vested right in the common law, which the [l]egislature may substantively change prospectively." Raphael v. Shecter, 18 So. 3d 1152, 1157 (Fla. 4th DCA 2009) (quoting Williams v. Am. Optical Corp., 985 So. 2d 23, 30 (Fla. 4th DCA 2008)); cf. R.A.M., 869 So. 2d at 1220 ("[O]nce a cause of action has accrued, the right to pursue that cause of action is generally considered a vested right."). The cause of action Universal pursued here did not accrue until the pipe failed and damaged the Perezes' unit. See Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323, 1325 (Fla. 1990). Thus, Universal, standing in the Perezes' shoes, did not have a vested right to sue the Association until July 13, 2021—after the amendment to section 627.714(4) became effective. See Cas. Indem. Exch. v. Penrod Bros., 632 So. 2d 1046, 1047 (Fla. 3d DCA 1993) ("In subrogation actions, the subrogee stands in the shoes of the subrogor and has only those rights which the subrogor had.").

We acknowledge the body of law holding that "the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract." Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 876 (Fla. 2010) (quoting Hassen v. State Farm Mut. Auto. Ins., 674 So. 2d 106, 108 (Fla. 1996)). But that body of law applies to contractual claims between contracting parties, "which are logically, and constitutionally, governed by the law in effect at the time of the contract." Fla. Ins. Guar. Ass'n v. Bernard, 140 So. 3d 1023, 1033 (Fla. 1st DCA 2014); see also Hausler v. State Farm Mut. Auto. Ins. Co., 374 So. 2d 1037, 1038 (Fla. 2d DCA 1979) ("When Hausler and State Farm negotiated for and entered into the subject contract of insurance, its terms were set in accordance with the law in effect at that time . . . .").

Universal's cause of action against the Association is neither contractual nor between the parties to the insurance contract; rather, it is based on the transfer of the right to sue in tort from one contracting party to the other. And that transfer was contingent on the occurrence of future events, without which Universal's rights never would have vested. See Couch on Insurance § 223:3 n.8 ("While insurer may have future interest in rights that its insured has against third party, insurer's right of subrogation comes into existence only when insurer pays claim of insured.").

At bottom, neither Universal's subrogation rights nor its right to sue in negligence vested before the legislature amended section 627.714(4).2 As we explained in R.A.M., "[a] statute does not operate

SLEET, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.

Opinion subject to revision prior to official publication.

before that date. It therefore would be inconsistent to conclude that Universal had a vested right to subrogation on the date it issued its policy, where neither the statute of limitations nor Universal's coverage obligations were triggered until the loss occurred. The conclusion we reach avoids this inconsistency.