586 F.Supp.3d 1260
S.D. Fla.2022Background
- Plaintiff Leo Ferretti, a full-time undergraduate at Nova Southeastern University (NSU), alleges NSU ceased in-person instruction and campus services in March 2020 and moved classes online for the winter term; he sued for breach of contract and unjust enrichment seeking tuition/fee relief.
- NSU moved to dismiss; while that motion was pending Florida enacted Fla. Stat. § 768.39 (effective July 1, 2021), an "Immunity Statute" shielding educational institutions from suits arising from COVID-19–related actions (shifting to online instruction, closing/modifying facilities, pausing services), adding evidentiary limits and a heightened burden of proof.
- NSU filed a dispositive-motion asserting § 768.39 bars Ferretti’s claims; Ferretti opposed, arguing the statute is not retroactive and, alternatively, is unconstitutional as to pending claims.
- The Court treated the statute as substantive (it creates new affirmative defenses and alters evidentiary rules) and as manifesting retroactive legislative intent (text targets past COVID responses and pending tuition suits).
- The Court held retroactive application would unconstitutionally impair vested rights: Ferretti’s breach-of-contract and unjust-enrichment causes of action accrued before enactment and are protected property interests, so § 768.39 cannot retroactively bar them.
- Result: Defendant’s motion to dismiss under § 768.39 was denied without prejudice; case to proceed and be reset for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Fla. Stat. § 768.39 apply retroactively to this pending suit? | Ferretti: statute does not apply retroactively; cannot extinguish vested claims. | NSU: statute targets COVID-related conduct and should apply to lawsuits about that conduct. | Court: text shows retroactive intent; statute targets past conduct and pending suits. |
| Is the Immunity Statute substantive or procedural/remedial? | Ferretti: statute is substantive because it creates new defenses and changes contractual evidence rules. | NSU: statute is remedial/public‑good and relates to evidence/procedure. | Court: statute is substantive (creates immunity, impossibility/justification defenses, and alters evidentiary sources). |
| If retroactive, does the statute violate due process by impairing vested rights? | Ferretti: his breach and unjust-enrichment claims accrued before enactment and are vested property interests protected by due process. | NSU: argues no vested right because no contract for in-person instruction and defenses like impossibility/public‑policy bar claims. | Court: retroactive application would impair vested causes of action (breach and unjust enrichment) and violate due process; cannot be applied to bar claims. |
| Do the evidentiary and heightened-burden provisions independently defeat the claims? | Ferretti: those provisions cannot retroactively strip his preexisting rights; constitutional problems remain. | NSU: the evidentiary bar and clear-and-convincing standard undermine plaintiffs’ ability to prove claims. | Court: did not decide these provisions’ ultimate effect; denial without prejudice and left these issues for later stages (summary judgment/trial). |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (framework for retroactivity analysis of statutes)
- Tallahassee Mem. Reg'l Med. Ctr. v. Bowen, 815 F.2d 1435 (11th Cir. 1987) (courts apply law in effect when decision is rendered)
- Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So. 2d 494 (Fla. 1999) (distinguishing substantive vs. remedial statutes for retroactivity)
- Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010) (two‑pronged test: legislative intent to apply retroactively and constitutional permissibility)
- Smiley v. State, 966 So. 2d 330 (Fla. 2007) (creation of new affirmative defenses is substantive)
- Am. Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011) (Article I property protections; causes of action as protected interests)
- Williams v. Am. Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008) (accrual of causes of action and vesting of rights)