1 | A bill to be entitled |
2 | An act relating to insurance representatives; amending s. |
3 | 626.854, F.S.; specifying prohibitions for public |
4 | adjusters relating to soliciting professional employment; |
5 | prohibiting public adjusters and persons associated with |
6 | public adjusters from sending unsolicited written |
7 | communications under certain circumstances; specifying |
8 | criteria for such communications; specifying requirements |
9 | for and prohibitions relating to certain written or |
10 | electronic communications from public adjusters to |
11 | prospective clients; providing an effective date. |
12 |
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13 | Be It Enacted by the Legislature of the State of Florida: |
14 |
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15 | Section 1. Subsection (8) and paragraph (a) of subsection |
16 | (11) of section 626.854, Florida Statutes, are amended to read: |
17 | 626.854 "Public adjuster" defined; prohibitions.--The |
18 | Legislature finds that it is necessary for the protection of the |
19 | public to regulate public insurance adjusters and to prevent the |
20 | unauthorized practice of law. |
21 | (8)(a) It is an unfair and deceptive insurance trade |
22 | practice pursuant to s. 626.9541 for a public adjuster or any |
23 | other person to circulate or disseminate any advertisement, |
24 | announcement, or statement containing any assertion, |
25 | representation, or statement with respect to the business of |
26 | insurance which is untrue, deceptive, or misleading. |
27 | (b) Except as provided in this subsection, a public |
28 | adjuster may not solicit professional employment from a |
29 | prospective client with whom the public adjuster has any family |
30 | or prior professional relationship, in person or otherwise, when |
31 | a significant motive for the public adjuster's doing so is the |
32 | public adjuster's pecuniary gain. A public adjuster may not |
33 | permit employees or agents of the public adjuster to solicit on |
34 | the public adjuster's behalf. A public adjuster may not enter |
35 | into an agreement for, charge, or collect a fee for professional |
36 | employment obtained in violation of this paragraph. The term |
37 | "solicit" includes contact in person, by telephone, telegraph, |
38 | or facsimile, or by any other communication directed to a |
39 | specific recipient and includes any written form of |
40 | communication directed to a specific recipient and not meeting |
41 | the requirements of this paragraph, and electronic mail |
42 | communications. A public adjuster may not send, or knowingly |
43 | permit to be sent, on the public adjuster's behalf or on behalf |
44 | of the public adjuster's firm or partner, an associate of the |
45 | public adjuster, or any other public adjuster affiliated with |
46 | the public adjuster or the public adjuster's firm an unsolicited |
47 | electronic mail communication directly or indirectly to a |
48 | prospective client for the purpose of obtaining professional |
49 | claims employment. |
50 | (c)1. A public adjuster may not send, or knowingly permit |
51 | to be sent, on the public adjuster's behalf or on behalf of the |
52 | public adjuster's firm or partner, an associate of the public |
53 | adjuster, or any other public adjuster affiliated with the |
54 | public adjuster or the public adjuster's firm an unsolicited |
55 | written communication directly or indirectly to a prospective |
56 | client for the purpose of obtaining professional employment if: |
57 | a. The written communication concerns a claim or otherwise |
58 | relates to an accident or disaster involving the person to whom |
59 | the communication is addressed or a relative of that person, |
60 | unless the accident or disaster occurred more than 30 days prior |
61 | to the mailing of the communication; |
62 | b. It has been made known to the public adjuster that the |
63 | person does not want to receive such communications from the |
64 | public adjuster; |
65 | c. The communication involves coercion, duress, fraud, |
66 | overreaching, harassment, intimidation, or undue influence; |
67 | d. The communication contains a false, fraudulent, |
68 | misleading, or deceptive statement or claim; or |
69 | e. The public adjuster knows or reasonably should know |
70 | that the physical, emotional, or mental state of the person |
71 | makes it unlikely that the person would exercise reasonable |
72 | judgment in employing a public adjuster. |
73 | 2. Written or electronic communications from a public |
74 | adjuster, a public adjuster's firm or partner, an associate of |
75 | the public adjuster, or any other public adjuster affiliated |
76 | with the public adjuster or the public adjuster's firm to |
77 | prospective clients for the purpose of obtaining professional |
78 | employment shall not contain a false, misleading, or deceptive |
79 | communication about the public adjuster. A communication |
80 | violates this prohibition if the communication: |
81 | a. Contains a material misrepresentation of fact or law; |
82 | b. Is false or misleading; |
83 | c. Fails to disclose material information necessary to |
84 | prevent the information supplied from being false or misleading; |
85 | d. Is unsubstantiated in fact; |
86 | e. Is deceptive; |
87 | f. Contains any reference to past successes or results |
88 | obtained; |
89 | g. Promises results; |
90 | h. States or implies that the public adjuster can achieve |
91 | results by means that violate the law; |
92 | i. Compares the public adjuster's services with other |
93 | adjusters' services, unless the comparison can be factually |
94 | substantiated; or |
95 | j. Contains a testimonial. |
96 | 3. The first page of such written communication and the |
97 | lower left corner of the envelope containing the written |
98 | communication shall be plainly marked "ADVERTISEMENT" in red |
99 | ink. If the written communication is in the form of a self- |
100 | mailing brochure or pamphlet, the address panel of the brochure |
101 | or pamphlet and the inside of the brochure or pamphlet shall be |
102 | plainly marked "ADVERTISEMENT" in red ink. Brochures solicited |
103 | by clients or prospective clients need not be marked |
104 | "ADVERTISEMENT". |
105 | 4. Written communications mailed to prospective clients |
106 | shall be sent only by regular United States mail and not by |
107 | registered mail or other forms of restricted delivery. |
108 | 5. Every written communication must be accompanied by a |
109 | written statement detailing the background, training, and |
110 | experience of the public adjuster or public adjuster firm. The |
111 | statement must include information about the specific experience |
112 | of the advertising public adjuster or public adjuster firm in |
113 | the area or areas of public adjuster for which professional |
114 | employment is sought. Each written communication disseminated by |
115 | a public adjuster referral service shall be accompanied by a |
116 | written statement describing the background, training, and |
117 | experience of each public adjuster to whom the recipient may be |
118 | referred. |
119 | 6. If a contract for representation is mailed with the |
120 | written communication, the top of each page of the contract |
121 | shall be marked "SAMPLE" in red ink in a type size one size |
122 | larger than the largest type used in the contract and the words |
123 | "DO NOT SIGN" shall appear on the client signature line. |
124 | 7. The first sentence of any written communication |
125 | prompted by a specific occurrence involving or affecting the |
126 | intended recipient of the communication or a family member shall |
127 | be: "IF YOU HAVE ALREADY RETAINED A PUBLIC ADJUSTER FOR THIS |
128 | MATTER, PLEASE DISREGARD THIS LETTER." |
129 | 8. Written communications may not be made to resemble |
130 | legal pleadings or other legal documents. This prohibition does |
131 | not preclude the mailing of brochures and pamphlets. |
132 | 9. If a public adjuster other than the public adjuster |
133 | whose name or signature appears on the communication will |
134 | actually handle the case or matter, any written communication |
135 | concerning a specific matter shall include a statement advising |
136 | the client of that fact. |
137 | 10. Any written communication prompted by a specific |
138 | occurrence involving or affecting the intended recipient of the |
139 | communication or a family member shall disclose how the public |
140 | adjuster obtained the information prompting the communication. |
141 | The disclosure required by this subparagraph shall be specific |
142 | enough to help the recipient understand the extent of the public |
143 | adjuster's knowledge regarding the recipient's particular |
144 | situation. |
145 | 11. A written communication seeking employment by a |
146 | specific prospective client in a specific matter may not reveal |
147 | on the envelope, or on the outside of a self-mailing brochure or |
148 | pamphlet, the nature of the subject of the client's claim. |
149 | (11)(a) If a public adjuster enters into a contract with |
150 | an insured or claimant to reopen a claim or to file a |
151 | supplemental claim that seeks additional payments for a claim |
152 | that has been previously paid in part or in full or settled by |
153 | the insurer, the public adjuster may not charge, agree to, or |
154 | accept any compensation, payment, commission, fee, or other |
155 | thing of value based on a written offer, previous settlement, or |
156 | previous claim payments by the insurer for the same cause of |
157 | loss. The charge, compensation, payment, commission, fee, or |
158 | other thing of value may be based only on the claim payments or |
159 | settlement obtained through the work of the public adjuster |
160 | after entering into the contract with the insured or claimant. |
161 | The contracts described in this paragraph are not subject to the |
162 | limitations in paragraph (b). |
163 |
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164 | The provisions of subsections (5)-(12) apply only to residential |
165 | property insurance policies and condominium association policies |
166 | as defined in s. 718.111(11). |
167 | Section 2. This act shall take effect July 1, 2009. |