Hypoluxo Mariner's Cay Condominium Association, Inc. v. Underwriter's at Lloyd's London, et al.

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
HYPOLUXO MARINER’S CAY CONDOMINIUM ASSOCIATION, INC.,
Appellant,
v.
UNDERWRITER’S AT LLOYD’S LONDON, NATIONAL FIRE & MARINE
INSURANCE COMPANY, and QBE SPECIALTY INSURANCE COMPANY,
Appellees.
No. 4D2024-2250
[April 1, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	James 	Edward 	Nutt, 	Judge; 	L.T. 	Case 	No.
502023CA015867XXXAMB.
Erin Newell of Open Book Appeals, Fort Lauderdale, for appellant.
Mihaela Cabulea and Jason Michael Seitz of Butler Weihmuller Katz
Craig LLP, Tampa, for appellee Underwriters at Lloyd’s London.
No appearance for appellee National Fire & Marine Insurance Company.
No appearance for appellee QBE Insurance Company.
S HEPHERD, J.
Hypoluxo Mariner’s Cay Condominium Association (the “Association”)
appeals an order granting appellee Underwriter’s at Lloyd’s London’s
(“Underwriters”) motion to dismiss for failure to comply with the applicable
statute of limitations. 	The Association raises two issues on appeal. 	For
the 	reasons 	explained 	below, 	we 	reverse 	and 	remand 	for 	further
proceedings.
Background
The Association entered into an insurance contract with Underwriters
providing insurance for property within the Association’s community.
Hurricane Irma damaged the roof and exterior of a building on the property
on September 10, 2017. The Association reported the loss and submitted

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a sworn proof of loss within three years, in compliance with Florida
Statutes section 627.70132.
Although Underwriters acknowledged the claim and assigned a claim
number on September 1, 2020, Underwriters did not make a coverage
determination within ninety days as required by section 627.70131(5)(a),
Florida Statutes (2020). A coverage determination is a condition precedent
to filing suit. 	See § 627.70152(3)(a), Fla. Stat. (2022).
On October 18, 2022, approximately one month after the five-year
statute of limitations expired, Underwriters denied coverage. Underwriters
asserted 	that 	the 	Association 	had 	failed 	to 	comply 	with 	post-loss
obligations and stated that, even if coverage existed, the amount of damage
attributable to Hurricane Irma fell below the policy’s deductible.
Three days later, on October 21, 2022, the Association filed suit against
Underwriters for breach of the insurance policy. 	The complaint alleged
that Underwriters failed to pay for the hurricane damage, but did not allege
facts supporting any equitable basis to avoid the five-year statute of
limitations. 	Underwriters moved to dismiss on that ground, arguing the
claim was barred by section 95.11(2)(e), Florida Statutes (2022). The trial
court dismissed the complaint without prejudice.
The Association filed an amended complaint on November 16, 2023.
Unlike 	the 	initial 	pleading, 	the 	amended 	complaint 	alleged 	that
Underwriters intentionally delayed making a coverage determination in
order to prevent or postpone the Association’s ability to file suit within the
limitations period. 	Specifically, the Association alleged that although
Underwriters acknowledged the claim, they failed to render a coverage
determination within ninety days as required by section 627.70131(5)(a).1
The Association further alleged that Underwriters refused to determine
coverage 	unless 	they 	first 	examined 	the 	Association’s 	engineer—a
requirement not contained in the policy—and that these delays prevented
the Association from filing suit sooner.
1 On appeal, the Association instead cites section 627.70131(7)(a), Florida
Statutes (2024). The earlier-cited statute, section 627.70131(5)(a), was amended
in 	2023 	to 	reflect 	a 	60-day 	window 	for 	a 	coverage 	determination—now
enumerated in subsection (7)(a). 	Because the applicable date for this statute is
the year in which the claim for coverage was filed, the 2020 version of section
627.70131(5)(a) applies. 	See Expert Inspections, LLC v. United Prop. & Cas. Ins.
Co., 	333 	So. 	3d 	200 	(Fla. 	4th 	DCA 	2022) 	(citing 	the 	version 	of 	section
627.70131(7)(a) in effect at the time the insurance claim was filed).

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Underwriters subsequently renewed its motion to dismiss on statute-
of-limitations grounds. 	The Association opposed dismissal, arguing that
Underwriters’ investigative delays and failure to comply with statutory
deadlines supported an equitable estoppel defense, thereby precluding
dismissal at the pleading stage. 	The trial court granted Underwriters’
motion and dismissed the amended complaint with prejudice.
The 	Association 	moved 	for 	rehearing, 	asserting 	that 	the 	amended
complaint 	alleged 	facts 	sufficient 	to 	defeat 	the 	statute-of-limitations
defense. 	In response, Underwriters raised a new argument: that section
95.11(2)(e), Florida Statutes, operates as a statute of repose not subject to
equitable doctrines. The trial court denied rehearing without explanation.
Discussion
We review de novo an order granting a motion to dismiss with prejudice.
Preudhomme v. Bailey, 211 So. 3d 127, 130 (Fla. 4th DCA 2017).
On 	appeal, 	the 	Association 	argues 	that 	the 	trial 	court 	erred 	in
dismissing the amended complaint for failure to comply with the statute
of limitations, because the complaint alleged facts supporting an equitable
avoidance of the limitations period. 	We agree.
Section 95.11(2)(e), Florida Statutes (2022), requires that an action for
breach of a property insurance contract be brought within five years of the
date of loss. 	Although a statute-of-limitations defense may be raised in a
motion to dismiss, it is appropriate only where its violation appears on the
face of the complaint or its exhibits. 	Beachway Rests. 2 v. Santo & June,
Inc., 386 So. 3d 961, 963 (Fla. 4th DCA 2024); accord Toledo Park Homes
v. Grant, 447 So. 2d 343, 344 (Fla. 4th DCA 1984) (explaining that,
generally, the statute of limitations is an affirmative defense that must be
raised in an answer). 	Even then, dismissal is improper if the complaint
suggests the possibility that the plaintiff could allege facts in avoidance of
the limitations defense. 	Wishnatzki v. Coffman Const., Inc., 884 So. 2d
282, 285 (Fla. 2d DCA 2004).
Here, the Association’s amended complaint alleged facts that, if proven,
could support an equitable defense, avoiding the statute of limitations.
The Association alleged that: (1) it timely reported the Hurricane Irma loss
and submitted a sworn proof of loss; (2) Underwriters failed to make a
timely coverage determination; and (3) Underwriters repeatedly required
additional examinations and investigative steps not required under the
policy before issuing a coverage decision. 	According to the complaint,
those delays prevented the Association from initiating litigation before the

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limitations period expired because a coverage determination was required
before suit could be filed.
At the motion-to-dismiss stage, the trial court was not required to
determine whether an equitable defense ultimately applied. The trial court
was 	required 	only 	to 	determine 	whether 	the 	complaint 	alleged 	facts
suggesting 	the 	possibility 	that 	the 	Association 	could 	plead 	facts 	in
avoidance of the limitations defense. 	See Wishnatzki, 884 So. 2d at 285.
The amended complaint satisfied that threshold.
Underwriters’ contrary arguments—that the Association caused the
delays and failed to comply with post-loss obligations—are affirmative
defenses that cannot be resolved at the pleading stage. 	See Toledo Park
Homes, 447 So. 2d at 344.
Because the amended complaint alleged ultimate facts suggesting the
possibility that the Association could plead facts in avoidance of the
statute of limitations, dismissal on that ground was improper. 	That
conclusion, however, does not end our analysis.
In response to the Association’s motion for rehearing, Underwriters
advanced 	an 	alternative 	argument: 	that 	section 	95.11(2)(e), 	Florida
Statutes, operates as a statute of repose not subject to equitable doctrines.
Although Underwriters urges us to affirm on that basis, the trial court did
not address that argument expressly, instead it denied rehearing without
explanation.
The tipsy coachman doctrine permits an appellate court to affirm a trial
court’s decision if it is correct for any reason supported by the record, even
if the trial court relied on the wrong reasoning. 	See State v. S.V., 958 So.
2d 609, 612 n.3 (Fla. 4th DCA 2007). 	This court, however, has declined
to apply the doctrine where the trial court has not ruled on the alternative
basis and the issue should be addressed in the first instance. 	See One
Call Prop. Servs., Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 755–56 (Fla.
4th DCA 2015) (declining to apply the tipsy coachman doctrine, reversing,
and remanding for the trial court to address the alternative arguments in
the first instance); Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285, 289 n.4
(Fla. 4th DCA 2012) (declining to apply the tipsy coachman doctrine and
emphasizing that appellate courts should not ordinarily decide issues not
ruled on by the trial court in the first instance).
Here, whether section 95.11(2)(e), operates as a statute of repose—and,
if 	so, 	whether 	it 	bars 	the 	Association’s 	claims 	notwithstanding 	any
equitable 	allegations—presents 	a 	separate 	and 	potentially 	dispositive

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issue that was not addressed below. 	Under these circumstances, we
decline to apply the tipsy coachman doctrine and instead remand for the
trial court to consider that argument in the first instance. 	See One Call,
165 So. 3d at 755–56.
Accordingly, we reverse the order of dismissal and remand for further
proceedings consistent with this opinion.
Reversed and remanded for further proceedings consistent with this
opinion.
FORST and K LINGENSMITH, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.