HB 1239

1
A bill to be entitled
2An act relating to insurance representatives; amending s.
3626.854, F.S.; specifying prohibitions for public
4adjusters relating to soliciting professional employment;
5prohibiting public adjusters and persons associated with
6public adjusters from sending unsolicited written
7communications under certain circumstances; specifying
8criteria for such communications; specifying requirements
9for and prohibitions relating to certain written or
10electronic communications from public adjusters to
11prospective clients; providing an effective date.
12
13Be It Enacted by the Legislature of the State of Florida:
14
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
18Legislature finds that it is necessary for the protection of the
19public to regulate public insurance adjusters and to prevent the
20unauthorized practice of law.
21     (8)(a)  It is an unfair and deceptive insurance trade
22practice pursuant to s. 626.9541 for a public adjuster or any
23other person to circulate or disseminate any advertisement,
24announcement, or statement containing any assertion,
25representation, or statement with respect to the business of
26insurance which is untrue, deceptive, or misleading.
27     (b)  Except as provided in this subsection, a public
28adjuster may not solicit professional employment from a
29prospective client with whom the public adjuster has any family
30or prior professional relationship, in person or otherwise, when
31a significant motive for the public adjuster's doing so is the
32public adjuster's pecuniary gain. A public adjuster may not
33permit employees or agents of the public adjuster to solicit on
34the public adjuster's behalf. A public adjuster may not enter
35into an agreement for, charge, or collect a fee for professional
36employment obtained in violation of this paragraph. The term
37"solicit" includes contact in person, by telephone, telegraph,
38or facsimile, or by any other communication directed to a
39specific recipient and includes any written form of
40communication directed to a specific recipient and not meeting
41the requirements of this paragraph, and electronic mail
42communications. A public adjuster may not send, or knowingly
43permit to be sent, on the public adjuster's behalf or on behalf
44of the public adjuster's firm or partner, an associate of the
45public adjuster, or any other public adjuster affiliated with
46the public adjuster or the public adjuster's firm an unsolicited
47electronic mail communication directly or indirectly to a
48prospective client for the purpose of obtaining professional
49claims employment.
50     (c)1.  A public adjuster may not send, or knowingly permit
51to be sent, on the public adjuster's behalf or on behalf of the
52public adjuster's firm or partner, an associate of the public
53adjuster, or any other public adjuster affiliated with the
54public adjuster or the public adjuster's firm an unsolicited
55written communication directly or indirectly to a prospective
56client for the purpose of obtaining professional employment if:
57     a.  The written communication concerns a claim or otherwise
58relates to an accident or disaster involving the person to whom
59the communication is addressed or a relative of that person,
60unless the accident or disaster occurred more than 30 days prior
61to the mailing of the communication;
62     b.  It has been made known to the public adjuster that the
63person does not want to receive such communications from the
64public adjuster;
65     c.  The communication involves coercion, duress, fraud,
66overreaching, harassment, intimidation, or undue influence;
67     d.  The communication contains a false, fraudulent,
68misleading, or deceptive statement or claim; or
69     e.  The public adjuster knows or reasonably should know
70that the physical, emotional, or mental state of the person
71makes it unlikely that the person would exercise reasonable
72judgment in employing a public adjuster.
73     2.  Written or electronic communications from a public
74adjuster, a public adjuster's firm or partner, an associate of
75the public adjuster, or any other public adjuster affiliated
76with the public adjuster or the public adjuster's firm to
77prospective clients for the purpose of obtaining professional
78employment shall not contain a false, misleading, or deceptive
79communication about the public adjuster. A communication
80violates 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
84prevent 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
88obtained;
89     g.  Promises results;
90     h.  States or implies that the public adjuster can achieve
91results by means that violate the law;
92     i.  Compares the public adjuster's services with other
93adjusters' services, unless the comparison can be factually
94substantiated; or
95     j.  Contains a testimonial.
96     3.  The first page of such written communication and the
97lower left corner of the envelope containing the written
98communication shall be plainly marked "ADVERTISEMENT" in red
99ink. If the written communication is in the form of a self-
100mailing brochure or pamphlet, the address panel of the brochure
101or pamphlet and the inside of the brochure or pamphlet shall be
102plainly marked "ADVERTISEMENT" in red ink. Brochures solicited
103by clients or prospective clients need not be marked
104"ADVERTISEMENT".
105     4.  Written communications mailed to prospective clients
106shall be sent only by regular United States mail and not by
107registered mail or other forms of restricted delivery.
108     5.  Every written communication must be accompanied by a
109written statement detailing the background, training, and
110experience of the public adjuster or public adjuster firm. The
111statement must include information about the specific experience
112of the advertising public adjuster or public adjuster firm in
113the area or areas of public adjuster for which professional
114employment is sought. Each written communication disseminated by
115a public adjuster referral service shall be accompanied by a
116written statement describing the background, training, and
117experience of each public adjuster to whom the recipient may be
118referred.
119     6.  If a contract for representation is mailed with the
120written communication, the top of each page of the contract
121shall be marked "SAMPLE" in red ink in a type size one size
122larger 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
125prompted by a specific occurrence involving or affecting the
126intended recipient of the communication or a family member shall
127be: "IF YOU HAVE ALREADY RETAINED A PUBLIC ADJUSTER FOR THIS
128MATTER, PLEASE DISREGARD THIS LETTER."
129     8.  Written communications may not be made to resemble
130legal pleadings or other legal documents. This prohibition does
131not preclude the mailing of brochures and pamphlets.
132     9.  If a public adjuster other than the public adjuster
133whose name or signature appears on the communication will
134actually handle the case or matter, any written communication
135concerning a specific matter shall include a statement advising
136the client of that fact.
137     10.  Any written communication prompted by a specific
138occurrence involving or affecting the intended recipient of the
139communication or a family member shall disclose how the public
140adjuster obtained the information prompting the communication.
141The disclosure required by this subparagraph shall be specific
142enough to help the recipient understand the extent of the public
143adjuster's knowledge regarding the recipient's particular
144situation.
145     11.  A written communication seeking employment by a
146specific prospective client in a specific matter may not reveal
147on the envelope, or on the outside of a self-mailing brochure or
148pamphlet, the nature of the subject of the client's claim.
149     (11)(a)  If a public adjuster enters into a contract with
150an insured or claimant to reopen a claim or to file a
151supplemental claim that seeks additional payments for a claim
152that has been previously paid in part or in full or settled by
153the insurer, the public adjuster may not charge, agree to, or
154accept any compensation, payment, commission, fee, or other
155thing of value based on a written offer, previous settlement, or
156previous claim payments by the insurer for the same cause of
157loss. The charge, compensation, payment, commission, fee, or
158other thing of value may be based only on the claim payments or
159settlement obtained through the work of the public adjuster
160after entering into the contract with the insured or claimant.
161The contracts described in this paragraph are not subject to the
162limitations in paragraph (b).
163
164The provisions of subsections (5)-(12) apply only to residential
165property insurance policies and condominium association policies
166as defined in s. 718.111(11).
167     Section 2.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.