CS/HB 1181

1
A bill to be entitled
2An act relating to public adjusters; amending s. 626.854,
3F.S.; limiting compensation on certain claims; revising
4limitations on certain compensation, payments commissions,
5or fees; specifying statements that may be considered
6deceptive or misleading if made in any public adjuster's
7advertisement or solicitation; defining the term "written
8advertisement"; requiring a disclaimer to be included in
9any public adjuster's written advertisement; providing
10requirements for such disclaimer; requiring advance notice
11to certain parties before scheduling certain meetings;
12authorizing waiver of such notice; requiring a public
13adjuster to make a reasonable and necessary effort to
14ensure prompt notice of certain property loss claims;
15providing that an insurer be allowed a reasonable
16opportunity to obtain information and respond to the
17claim; prohibiting a public adjuster from obstructing or
18preventing certain persons from communicating with the
19insured; prohibiting a licensed contractor or
20subcontractor from adjusting a claim on behalf of an
21insured if such contractor or subcontractor is not a
22licensed public adjuster; providing an exception; amending
23s. 626.8651, F.S.; requiring a public adjuster apprentice
24to complete a minimum number of hours of continuing
25education to qualify for licensure; amending s. 626.8796,
26F.S.; specifying information requirements for public
27adjuster contracts; creating s. 626.70132, F.S.; requiring
28notices of a claim, supplemental claim, or reopened claim
29to be given to the insurer within a specified period after
30a windstorm or hurricane occurs; providing a definition
31for the term "supplemental claim" or "reopened claim";
32providing applicability; providing effective dates.
33
34Be It Enacted by the Legislature of the State of Florida:
35
36     Section 1.  Subsection (11) of section 626.854, Florida
37Statutes, is amended to read:
38     626.854  "Public adjuster" defined; prohibitions.-The
39Legislature finds that it is necessary for the protection of the
40public to regulate public insurance adjusters and to prevent the
41unauthorized practice of law.
42     (11)(a)  If a public adjuster enters into a contract with
43an insured or claimant to reopen a claim or to file a
44supplemental claim that seeks additional payments for a claim
45that has been previously paid in part or in full or settled by
46the insurer, the public adjuster may not charge, agree to, or
47accept any compensation, payment, commission, fee, or other
48thing of value based on a previous settlement or previous claim
49payments by the insurer for the same cause of loss. The charge,
50compensation, payment, commission, fee, or other thing of value
51may be based only on the claim payments or settlement obtained
52through the work of the public adjuster after entering into the
53contract with the insured or claimant. Compensation for a
54reopened or supplemental claim may not exceed 30 percent of the
55reopened or supplemental claim payment and may not exceed the
56caps provided in paragraph (b) for the overall claim, inclusive
57of the supplemental claim payment. The contracts described in
58this paragraph are not subject to the limitations in paragraph
59(b).
60     (b)  A public adjuster may not charge, agree to, or accept
61any compensation, payment, commission, fee, or other thing of
62value in excess of:
63     1.  Ten percent of the amount of insurance claim payments
64by the insurer for claims based on events that are the subject
65of a declaration of a state of emergency by the Governor. This
66provision applies to claims made during the period of 1 year
67after the declaration of emergency.
68     2.  Twenty percent of the amount of all other insurance
69claim payments by the insurer for claims that are not based on
70events that are the subject of a declaration of a state of
71emergency by the Governor.
72
73The provisions of subsections (5)-(13) apply only to residential
74property insurance policies and condominium association policies
75as defined in s. 718.111(11).
76     Section 2.  Effective January 1, 2011, section 626.854,
77Florida Statutes, as amended by this act, is amended to read:
78     626.854  "Public adjuster" defined; prohibitions.-The
79Legislature finds that it is necessary for the protection of the
80public to regulate public insurance adjusters and to prevent the
81unauthorized practice of law.
82     (1)  A "public adjuster" is any person, except a duly
83licensed attorney at law as hereinafter in s. 626.860 provided,
84who, for money, commission, or any other thing of value,
85prepares, completes, or files an insurance claim form for an
86insured or third-party claimant or who, for money, commission,
87or any other thing of value, acts or aids in any manner on
88behalf of an insured or third-party claimant in negotiating for
89or effecting the settlement of a claim or claims for loss or
90damage covered by an insurance contract or who advertises for
91employment as an adjuster of such claims, and also includes any
92person who, for money, commission, or any other thing of value,
93solicits, investigates, or adjusts such claims on behalf of any
94such public adjuster.
95     (2)  This definition does not apply to:
96     (a)  A licensed health care provider or employee thereof
97who prepares or files a health insurance claim form on behalf of
98a patient.
99     (b)  A person who files a health claim on behalf of another
100and does so without compensation.
101     (3)  A public adjuster may not give legal advice. A public
102adjuster may not act on behalf of or aid any person in
103negotiating or settling a claim relating to bodily injury,
104death, or noneconomic damages.
105     (4)  For purposes of this section, the term "insured"
106includes only the policyholder and any beneficiaries named or
107similarly identified in the policy.
108     (5)  A public adjuster may not directly or indirectly
109through any other person or entity solicit an insured or
110claimant by any means except on Monday through Saturday of each
111week and only between the hours of 8 a.m. and 8 p.m. on those
112days.
113     (6)  A public adjuster may not directly or indirectly
114through any other person or entity initiate contact or engage in
115face-to-face or telephonic solicitation or enter into a contract
116with any insured or claimant under an insurance policy until at
117least 48 hours after the occurrence of an event that may be the
118subject of a claim under the insurance policy unless contact is
119initiated by the insured or claimant.
120     (7)  An insured or claimant may cancel a public adjuster's
121contract to adjust a claim without penalty or obligation within
1223 business days after the date on which the contract is executed
123or within 3 business days after the date on which the insured or
124claimant has notified the insurer of the claim, by phone or in
125writing, whichever is later. The public adjuster's contract
126shall disclose to the insured or claimant his or her right to
127cancel the contract and advise the insured or claimant that
128notice of cancellation must be submitted in writing and sent by
129certified mail, return receipt requested, or other form of
130mailing which provides proof thereof, to the public adjuster at
131the address specified in the contract; provided, during any
132state of emergency as declared by the Governor and for a period
133of 1 year after the date of loss, the insured or claimant shall
134have 5 business days after the date on which the contract is
135executed to cancel a public adjuster's contract.
136     (8)  It is an unfair and deceptive insurance trade practice
137pursuant to s. 626.9541 for a public adjuster or any other
138person to circulate or disseminate any advertisement,
139announcement, or statement containing any assertion,
140representation, or statement with respect to the business of
141insurance which is untrue, deceptive, or misleading.
142     (a)  For purposes of this section, the following
143statements, if made in any public adjuster's advertisement or
144solicitation, shall be considered deceptive or misleading:
145     1.  A statement or representation that invites an insured
146policyholder to submit a claim when the policyholder may not
147have covered damage to insured property.
148     2.  A statement or representation that invites an insured
149policyholder to submit a claim when the claim has previously
150been fully adjusted and paid.
151     3.  A statement or representation that invites an insured
152policyholder to submit a claim by offering monetary or other
153valuable inducement.
154     4.  A statement or representation that invites an insured
155policyholder to submit a claim by stating that there is "no
156risk" to the policyholder by submitting such claim.
157     5.  Any statement or representation, or use of a logo or
158shield, that would imply or could be mistakenly construed that
159the solicitation was issued or distributed by a governmental
160agency or is sanctioned or endorsed by a governmental agency.
161     (b)  For purposes of this paragraph, the term "written
162advertisement" includes only newspapers, magazines, flyers, and
163bulk mailers. The following disclaimer, which is not required to
164be printed on standard size business cards, shall be added in
165bold print and capital letters in typeface no smaller than the
166typeface of the body of the text to all written advertisements
167by any public adjuster:
168"THIS IS A SOLICITATION FOR BUSINESS. IF YOU HAVE HAD
169A CLAIM FOR AN INSURED PROPERTY LOSS OR DAMAGE AND YOU
170ARE SATISFIED WITH THE PAYMENT BY YOUR INSURER, YOU
171MAY DISREGARD THIS ADVERTISEMENT."
172     (9)  A public adjuster, a public adjuster apprentice, or
173any person or entity acting on behalf of a public adjuster or
174public adjuster apprentice may not give or offer to give a
175monetary loan or advance to a client or prospective client.
176     (10)  A public adjuster, public adjuster apprentice, or any
177individual or entity acting on behalf of a public adjuster or
178public adjuster apprentice may not give or offer to give,
179directly or indirectly, any article of merchandise having a
180value in excess of $25 to any individual for the purpose of
181advertising or as an inducement to entering into a contract with
182a public adjuster.
183     (11)(a)  If a public adjuster enters into a contract with
184an insured or claimant to reopen a claim or to file a
185supplemental claim that seeks additional payments for a claim
186that has been previously paid in part or in full or settled by
187the insurer, the public adjuster may not charge, agree to, or
188accept any compensation, payment, commission, fee, or other
189thing of value based on a previous settlement or previous claim
190payments by the insurer for the same cause of loss. The charge,
191compensation, payment, commission, fee, or other thing of value
192may be based only on the claim payments or settlement obtained
193through the work of the public adjuster after entering into the
194contract with the insured or claimant. Compensation for a
195reopened or supplemental claim may not exceed 30 percent of the
196reopened or supplemental claim payment and may not exceed the
197caps provided in paragraph (b) for the overall claim, inclusive
198of the supplemental claim payment.
199     (b)  A public adjuster may not charge, agree to, or accept
200any compensation, payment, commission, fee, or other thing of
201value in excess of:
202     1.  Ten percent of the amount of insurance claim payments
203by the insurer for claims based on events that are the subject
204of a declaration of a state of emergency by the Governor.
205     2.  Twenty percent of the amount of all other insurance
206claim payments by the insurer for claims that are not based on
207events that are the subject of a declaration of a state of
208emergency by the Governor.
209     (12)  Each public adjuster shall provide to the claimant or
210insured a written estimate of the loss to assist in the
211submission of a proof of loss or any other claim for payment of
212insurance proceeds. The public adjuster shall retain such
213written estimate for at least 5 years and shall make such
214estimate available to the claimant or insured and the department
215upon request.
216     (13)  A public adjuster, public adjuster apprentice, or any
217person acting on behalf of a public adjuster or apprentice may
218not accept referrals of business from any person with whom the
219public adjuster conducts business if there is any form or manner
220of agreement to compensate the person, whether directly or
221indirectly, for referring business to the public adjuster. A
222public adjuster may not compensate any person, except for
223another public adjuster, whether directly or indirectly, for the
224principal purpose of referring business to the public adjuster.
225     (14)  A company employee adjuster, independent adjuster,
226attorney, investigator, or other person acting on behalf of an
227insurer that needs access to an insured or claimant or to the
228insured property that is the subject of a claim shall provide at
229least 48 hours' notice to the insured, claimant, public
230adjuster, or legal representative prior to scheduling a meeting
231with the claimant or an onsite inspection of the insured
232property. The insured or claimant may deny access to the
233property if such notice has not been provided. The insured or
234claimant may waive the 48-hour notice.
235     (15)(a)  A public adjuster shall make all reasonable and
236necessary efforts to ensure prompt notice of any property loss
237claim submitted to an insurer by or through the public adjuster
238or on which the public adjuster represents the insured at the
239time the claim or notice of loss is submitted to the insurer.
240The public adjuster shall ensure that notice is given to the
241insurer, the public adjuster's contract is timely provided to
242the insurer, the property is timely made available for
243inspection of the loss or damage by the insurer, and the insurer
244is given a reasonable and timely opportunity to interview the
245insured directly about the loss and claim. The insurer shall be
246allowed a reasonable opportunity to obtain necessary information
247to investigate and respond to the claim. The insurer shall meet
248or communicate with the public adjuster in an effort to reach
249agreement as to the scope of the covered loss under the
250insurance policy. This section does not impair the terms and
251conditions of the insurance policy in effect at the time the
252claim is filed.
253     (b)  A public adjuster may not restrict or prevent an
254insurer, company employee adjuster, independent adjuster,
255attorney, investigator, or other person acting on behalf of the
256insurer from having reasonable access at reasonable times to an
257insured or claimant or to the insured property that is the
258subject of a claim.
259     (c)  A public adjuster may not act or fail to reasonably
260act in any manner that would obstruct or prevent an insurer or
261insurer's adjuster from timely gaining access to conduct an
262inspection of any part of the insured property for which there
263is a claim for loss or damage to the property. The public
264adjuster that represents the insured may be present for the
265insurer's inspection of the property loss or damage, but, if the
266lack of availability of the public adjuster would otherwise
267delay access to or inspection of the insured property by the
268insurer, the public adjuster or the insured must provide
269alternative means for the insurer to gain access to the insured
270property to allow the insurer's prompt inspection of the loss or
271damage without the participation or presence of the public
272adjuster or the insured.
273     (16)  A licensed contractor under part I of chapter 489, or
274a subcontractor, may not adjust a claim on behalf of an insured
275without being licensed and in compliance as a public adjuster
276under this chapter. However, this subsection does not apply to a
277licensed contractor that is preparing or has submitted a bid to
278a residential property owner who has suffered loss or damage
279covered by a property insurance policy, if such contractor is
280asked by the homeowner or the insurer to discuss or explain a
281bid for construction or repair of covered property, and is doing
282so for usual and customary fees applicable to the work to be
283performed by the contractor as stated in the contract between
284the contractor and the insured.
285
286The provisions of subsections (5)-(16) (5)-(13) apply only to
287residential property insurance policies and condominium unit
288owner association policies as defined in s. 718.111(11).
289     Section 3.  Effective January 1, 2011, subsections (7)
290through (11) of section 626.8651, Florida Statutes, are
291redesignated as subsections (8) through (12), respectively, and
292a new subsection (7) is added to that section to read:
293     626.8651  Public adjuster apprentice license;
294qualifications.-
295     (7)  A public adjuster apprentice shall complete a minimum
296of 8 hours of continuing education specific to the practice of a
297public adjuster, 2 hours of which must relate to ethics, in
298order to qualify for licensure as a public adjuster. The
299continuing education must be in subjects designed to inform the
300licensee regarding the current insurance laws of this state for
301the purpose of enabling him or her to engage in business as an
302insurance adjuster fairly and without injury to the public and
303to adjust all claims in accordance with the insurance contract
304and the laws of this state.
305     Section 4.  Effective January 1, 2011, section 626.8796,
306Florida Statutes, is amended to read:
307     626.8796  Public adjuster contracts; fraud statement.-
308     (1)  All contracts for public adjuster services must be in
309writing and must prominently display the following statement on
310the contract: "Pursuant to s. 817.234, Florida Statutes, any
311person who, with the intent to injure, defraud, or deceive any
312insurer or insured, prepares, presents, or causes to be
313presented a proof of loss or estimate of cost or repair of
314damaged property in support of a claim under an insurance policy
315knowing that the proof of loss or estimate of claim or repairs
316contains any false, incomplete, or misleading information
317concerning any fact or thing material to the claim commits a
318felony of the third degree, punishable as provided in s.
319775.082, s. 775.083, or s. 775.084, Florida Statutes."
320     (2)  A public adjuster contract must contain the following
321information: the full name, permanent business address, and
322license number of the public adjuster; the full name of the
323public adjusting firm; and the insured's full name and street
324address, together with a brief description of the loss. The
325contract must state the percentage of compensation for the
326public adjuster's services; the type of claim, including an
327emergency claim, nonemergency claim, or supplemental claim; the
328signatures of the public adjuster and the insured; and the
329signature date. An unaltered copy of the executed contract must
330be remitted to the insurer within 30 days after execution.
331     Section 5.  Section 626.70132, Florida Statutes, is created
332to read:
333     626.70132  Duty to file windstorm or hurricane claim.-A
334claim, supplemental claim, or reopened claim under an insurance
335policy that provides personal lines residential coverage, as
336defined in s. 627.4025, for loss or damage caused by the peril
337of windstorm or hurricane is barred unless notice of the claim,
338supplemental claim, or reopened claim was given to the insurer
339in accordance with the terms of the policy within 3 years after
340the hurricane first made landfall or the windstorm caused the
341covered damage. For purposes of this section, the term
342"supplemental claim" or "reopened claim" means a claim for
343recovery of additional payments from the insurer for losses from
344the same hurricane or windstorm for which the insurer has
345previously paid pursuant to the initial claim. This section may
346not be interpreted to affect any applicable limitation on civil
347actions provided in s. 95.11 for claims, supplemental claims, or
348reopened claims timely filed under this section.
349     Section 6.  Except as otherwise expressly provided by this
350act, this act shall take effect June 1, 2010.


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