| 1 | A bill to be entitled |
| 2 | An act relating to public adjusters; amending s. 626.854, |
| 3 | F.S.; limiting compensation on certain claims; revising |
| 4 | limitations on certain compensation, payments commissions, |
| 5 | or fees; specifying statements that may be considered |
| 6 | deceptive or misleading if made in any public adjuster's |
| 7 | advertisement or solicitation; defining the term "written |
| 8 | advertisement"; requiring a disclaimer to be included in |
| 9 | any public adjuster's written advertisement; providing |
| 10 | requirements for such disclaimer; requiring advance notice |
| 11 | to certain parties before scheduling certain meetings; |
| 12 | authorizing waiver of such notice; requiring a public |
| 13 | adjuster to make a reasonable and necessary effort to |
| 14 | ensure prompt notice of certain property loss claims; |
| 15 | providing that an insurer be allowed a reasonable |
| 16 | opportunity to obtain information and respond to the |
| 17 | claim; prohibiting a public adjuster from obstructing or |
| 18 | preventing certain persons from communicating with the |
| 19 | insured; prohibiting a licensed contractor or |
| 20 | subcontractor from adjusting a claim on behalf of an |
| 21 | insured if such contractor or subcontractor is not a |
| 22 | licensed public adjuster; providing an exception; amending |
| 23 | s. 626.8651, F.S.; requiring a public adjuster apprentice |
| 24 | to complete a minimum number of hours of continuing |
| 25 | education to qualify for licensure; amending s. 626.8796, |
| 26 | F.S.; specifying information requirements for public |
| 27 | adjuster contracts; creating s. 626.70132, F.S.; requiring |
| 28 | notices of a claim, supplemental claim, or reopened claim |
| 29 | to be given to the insurer within a specified period after |
| 30 | a windstorm or hurricane occurs; providing a definition |
| 31 | for the term "supplemental claim" or "reopened claim"; |
| 32 | providing applicability; providing effective dates. |
| 33 |
|
| 34 | Be It Enacted by the Legislature of the State of Florida: |
| 35 |
|
| 36 | Section 1. Subsection (11) of section 626.854, Florida |
| 37 | Statutes, is amended to read: |
| 38 | 626.854 "Public adjuster" defined; prohibitions.-The |
| 39 | Legislature finds that it is necessary for the protection of the |
| 40 | public to regulate public insurance adjusters and to prevent the |
| 41 | unauthorized practice of law. |
| 42 | (11)(a) If a public adjuster enters into a contract with |
| 43 | an insured or claimant to reopen a claim or to file a |
| 44 | supplemental claim that seeks additional payments for a claim |
| 45 | that has been previously paid in part or in full or settled by |
| 46 | the insurer, the public adjuster may not charge, agree to, or |
| 47 | accept any compensation, payment, commission, fee, or other |
| 48 | thing of value based on a previous settlement or previous claim |
| 49 | payments by the insurer for the same cause of loss. The charge, |
| 50 | compensation, payment, commission, fee, or other thing of value |
| 51 | may be based only on the claim payments or settlement obtained |
| 52 | through the work of the public adjuster after entering into the |
| 53 | contract with the insured or claimant. Compensation for a |
| 54 | reopened or supplemental claim may not exceed 30 percent of the |
| 55 | reopened or supplemental claim payment and may not exceed the |
| 56 | caps provided in paragraph (b) for the overall claim, inclusive |
| 57 | of the supplemental claim payment. The contracts described in |
| 58 | this paragraph are not subject to the limitations in paragraph |
| 59 | (b). |
| 60 | (b) A public adjuster may not charge, agree to, or accept |
| 61 | any compensation, payment, commission, fee, or other thing of |
| 62 | value in excess of: |
| 63 | 1. Ten percent of the amount of insurance claim payments |
| 64 | by the insurer for claims based on events that are the subject |
| 65 | of a declaration of a state of emergency by the Governor. This |
| 66 | provision applies to claims made during the period of 1 year |
| 67 | after the declaration of emergency. |
| 68 | 2. Twenty percent of the amount of all other insurance |
| 69 | claim payments by the insurer for claims that are not based on |
| 70 | events that are the subject of a declaration of a state of |
| 71 | emergency by the Governor. |
| 72 |
|
| 73 | The provisions of subsections (5)-(13) apply only to residential |
| 74 | property insurance policies and condominium association policies |
| 75 | as defined in s. 718.111(11). |
| 76 | Section 2. Effective January 1, 2011, section 626.854, |
| 77 | Florida Statutes, as amended by this act, is amended to read: |
| 78 | 626.854 "Public adjuster" defined; prohibitions.-The |
| 79 | Legislature finds that it is necessary for the protection of the |
| 80 | public to regulate public insurance adjusters and to prevent the |
| 81 | unauthorized practice of law. |
| 82 | (1) A "public adjuster" is any person, except a duly |
| 83 | licensed attorney at law as hereinafter in s. 626.860 provided, |
| 84 | who, for money, commission, or any other thing of value, |
| 85 | prepares, completes, or files an insurance claim form for an |
| 86 | insured or third-party claimant or who, for money, commission, |
| 87 | or any other thing of value, acts or aids in any manner on |
| 88 | behalf of an insured or third-party claimant in negotiating for |
| 89 | or effecting the settlement of a claim or claims for loss or |
| 90 | damage covered by an insurance contract or who advertises for |
| 91 | employment as an adjuster of such claims, and also includes any |
| 92 | person who, for money, commission, or any other thing of value, |
| 93 | solicits, investigates, or adjusts such claims on behalf of any |
| 94 | such public adjuster. |
| 95 | (2) This definition does not apply to: |
| 96 | (a) A licensed health care provider or employee thereof |
| 97 | who prepares or files a health insurance claim form on behalf of |
| 98 | a patient. |
| 99 | (b) A person who files a health claim on behalf of another |
| 100 | and does so without compensation. |
| 101 | (3) A public adjuster may not give legal advice. A public |
| 102 | adjuster may not act on behalf of or aid any person in |
| 103 | negotiating or settling a claim relating to bodily injury, |
| 104 | death, or noneconomic damages. |
| 105 | (4) For purposes of this section, the term "insured" |
| 106 | includes only the policyholder and any beneficiaries named or |
| 107 | similarly identified in the policy. |
| 108 | (5) A public adjuster may not directly or indirectly |
| 109 | through any other person or entity solicit an insured or |
| 110 | claimant by any means except on Monday through Saturday of each |
| 111 | week and only between the hours of 8 a.m. and 8 p.m. on those |
| 112 | days. |
| 113 | (6) A public adjuster may not directly or indirectly |
| 114 | through any other person or entity initiate contact or engage in |
| 115 | face-to-face or telephonic solicitation or enter into a contract |
| 116 | with any insured or claimant under an insurance policy until at |
| 117 | least 48 hours after the occurrence of an event that may be the |
| 118 | subject of a claim under the insurance policy unless contact is |
| 119 | initiated by the insured or claimant. |
| 120 | (7) An insured or claimant may cancel a public adjuster's |
| 121 | contract to adjust a claim without penalty or obligation within |
| 122 | 3 business days after the date on which the contract is executed |
| 123 | or within 3 business days after the date on which the insured or |
| 124 | claimant has notified the insurer of the claim, by phone or in |
| 125 | writing, whichever is later. The public adjuster's contract |
| 126 | shall disclose to the insured or claimant his or her right to |
| 127 | cancel the contract and advise the insured or claimant that |
| 128 | notice of cancellation must be submitted in writing and sent by |
| 129 | certified mail, return receipt requested, or other form of |
| 130 | mailing which provides proof thereof, to the public adjuster at |
| 131 | the address specified in the contract; provided, during any |
| 132 | state of emergency as declared by the Governor and for a period |
| 133 | of 1 year after the date of loss, the insured or claimant shall |
| 134 | have 5 business days after the date on which the contract is |
| 135 | executed to cancel a public adjuster's contract. |
| 136 | (8) It is an unfair and deceptive insurance trade practice |
| 137 | pursuant to s. 626.9541 for a public adjuster or any other |
| 138 | person to circulate or disseminate any advertisement, |
| 139 | announcement, or statement containing any assertion, |
| 140 | representation, or statement with respect to the business of |
| 141 | insurance which is untrue, deceptive, or misleading. |
| 142 | (a) For purposes of this section, the following |
| 143 | statements, if made in any public adjuster's advertisement or |
| 144 | solicitation, shall be considered deceptive or misleading: |
| 145 | 1. A statement or representation that invites an insured |
| 146 | policyholder to submit a claim when the policyholder may not |
| 147 | have covered damage to insured property. |
| 148 | 2. A statement or representation that invites an insured |
| 149 | policyholder to submit a claim when the claim has previously |
| 150 | been fully adjusted and paid. |
| 151 | 3. A statement or representation that invites an insured |
| 152 | policyholder to submit a claim by offering monetary or other |
| 153 | valuable inducement. |
| 154 | 4. A statement or representation that invites an insured |
| 155 | policyholder to submit a claim by stating that there is "no |
| 156 | risk" to the policyholder by submitting such claim. |
| 157 | 5. Any statement or representation, or use of a logo or |
| 158 | shield, that would imply or could be mistakenly construed that |
| 159 | the solicitation was issued or distributed by a governmental |
| 160 | agency or is sanctioned or endorsed by a governmental agency. |
| 161 | (b) For purposes of this paragraph, the term "written |
| 162 | advertisement" includes only newspapers, magazines, flyers, and |
| 163 | bulk mailers. The following disclaimer, which is not required to |
| 164 | be printed on standard size business cards, shall be added in |
| 165 | bold print and capital letters in typeface no smaller than the |
| 166 | typeface of the body of the text to all written advertisements |
| 167 | by any public adjuster: |
| 168 | "THIS IS A SOLICITATION FOR BUSINESS. IF YOU HAVE HAD |
| 169 | A CLAIM FOR AN INSURED PROPERTY LOSS OR DAMAGE AND YOU |
| 170 | ARE SATISFIED WITH THE PAYMENT BY YOUR INSURER, YOU |
| 171 | MAY DISREGARD THIS ADVERTISEMENT." |
| 172 | (9) A public adjuster, a public adjuster apprentice, or |
| 173 | any person or entity acting on behalf of a public adjuster or |
| 174 | public adjuster apprentice may not give or offer to give a |
| 175 | monetary loan or advance to a client or prospective client. |
| 176 | (10) A public adjuster, public adjuster apprentice, or any |
| 177 | individual or entity acting on behalf of a public adjuster or |
| 178 | public adjuster apprentice may not give or offer to give, |
| 179 | directly or indirectly, any article of merchandise having a |
| 180 | value in excess of $25 to any individual for the purpose of |
| 181 | advertising or as an inducement to entering into a contract with |
| 182 | a public adjuster. |
| 183 | (11)(a) If a public adjuster enters into a contract with |
| 184 | an insured or claimant to reopen a claim or to file a |
| 185 | supplemental claim that seeks additional payments for a claim |
| 186 | that has been previously paid in part or in full or settled by |
| 187 | the insurer, the public adjuster may not charge, agree to, or |
| 188 | accept any compensation, payment, commission, fee, or other |
| 189 | thing of value based on a previous settlement or previous claim |
| 190 | payments by the insurer for the same cause of loss. The charge, |
| 191 | compensation, payment, commission, fee, or other thing of value |
| 192 | may be based only on the claim payments or settlement obtained |
| 193 | through the work of the public adjuster after entering into the |
| 194 | contract with the insured or claimant. Compensation for a |
| 195 | reopened or supplemental claim may not exceed 30 percent of the |
| 196 | reopened or supplemental claim payment and may not exceed the |
| 197 | caps provided in paragraph (b) for the overall claim, inclusive |
| 198 | of the supplemental claim payment. |
| 199 | (b) A public adjuster may not charge, agree to, or accept |
| 200 | any compensation, payment, commission, fee, or other thing of |
| 201 | value in excess of: |
| 202 | 1. Ten percent of the amount of insurance claim payments |
| 203 | by the insurer for claims based on events that are the subject |
| 204 | of a declaration of a state of emergency by the Governor. |
| 205 | 2. Twenty percent of the amount of all other insurance |
| 206 | claim payments by the insurer for claims that are not based on |
| 207 | events that are the subject of a declaration of a state of |
| 208 | emergency by the Governor. |
| 209 | (12) Each public adjuster shall provide to the claimant or |
| 210 | insured a written estimate of the loss to assist in the |
| 211 | submission of a proof of loss or any other claim for payment of |
| 212 | insurance proceeds. The public adjuster shall retain such |
| 213 | written estimate for at least 5 years and shall make such |
| 214 | estimate available to the claimant or insured and the department |
| 215 | upon request. |
| 216 | (13) A public adjuster, public adjuster apprentice, or any |
| 217 | person acting on behalf of a public adjuster or apprentice may |
| 218 | not accept referrals of business from any person with whom the |
| 219 | public adjuster conducts business if there is any form or manner |
| 220 | of agreement to compensate the person, whether directly or |
| 221 | indirectly, for referring business to the public adjuster. A |
| 222 | public adjuster may not compensate any person, except for |
| 223 | another public adjuster, whether directly or indirectly, for the |
| 224 | principal purpose of referring business to the public adjuster. |
| 225 | (14) A company employee adjuster, independent adjuster, |
| 226 | attorney, investigator, or other person acting on behalf of an |
| 227 | insurer that needs access to an insured or claimant or to the |
| 228 | insured property that is the subject of a claim shall provide at |
| 229 | least 48 hours' notice to the insured, claimant, public |
| 230 | adjuster, or legal representative prior to scheduling a meeting |
| 231 | with the claimant or an onsite inspection of the insured |
| 232 | property. The insured or claimant may deny access to the |
| 233 | property if such notice has not been provided. The insured or |
| 234 | claimant may waive the 48-hour notice. |
| 235 | (15)(a) A public adjuster shall make all reasonable and |
| 236 | necessary efforts to ensure prompt notice of any property loss |
| 237 | claim submitted to an insurer by or through the public adjuster |
| 238 | or on which the public adjuster represents the insured at the |
| 239 | time the claim or notice of loss is submitted to the insurer. |
| 240 | The public adjuster shall ensure that notice is given to the |
| 241 | insurer, the public adjuster's contract is timely provided to |
| 242 | the insurer, the property is timely made available for |
| 243 | inspection of the loss or damage by the insurer, and the insurer |
| 244 | is given a reasonable and timely opportunity to interview the |
| 245 | insured directly about the loss and claim. The insurer shall be |
| 246 | allowed a reasonable opportunity to obtain necessary information |
| 247 | to investigate and respond to the claim. The insurer shall meet |
| 248 | or communicate with the public adjuster in an effort to reach |
| 249 | agreement as to the scope of the covered loss under the |
| 250 | insurance policy. This section does not impair the terms and |
| 251 | conditions of the insurance policy in effect at the time the |
| 252 | claim is filed. |
| 253 | (b) A public adjuster may not restrict or prevent an |
| 254 | insurer, company employee adjuster, independent adjuster, |
| 255 | attorney, investigator, or other person acting on behalf of the |
| 256 | insurer from having reasonable access at reasonable times to an |
| 257 | insured or claimant or to the insured property that is the |
| 258 | subject of a claim. |
| 259 | (c) A public adjuster may not act or fail to reasonably |
| 260 | act in any manner that would obstruct or prevent an insurer or |
| 261 | insurer's adjuster from timely gaining access to conduct an |
| 262 | inspection of any part of the insured property for which there |
| 263 | is a claim for loss or damage to the property. The public |
| 264 | adjuster that represents the insured may be present for the |
| 265 | insurer's inspection of the property loss or damage, but, if the |
| 266 | lack of availability of the public adjuster would otherwise |
| 267 | delay access to or inspection of the insured property by the |
| 268 | insurer, the public adjuster or the insured must provide |
| 269 | alternative means for the insurer to gain access to the insured |
| 270 | property to allow the insurer's prompt inspection of the loss or |
| 271 | damage without the participation or presence of the public |
| 272 | adjuster or the insured. |
| 273 | (16) A licensed contractor under part I of chapter 489, or |
| 274 | a subcontractor, may not adjust a claim on behalf of an insured |
| 275 | without being licensed and in compliance as a public adjuster |
| 276 | under this chapter. However, this subsection does not apply to a |
| 277 | licensed contractor that is preparing or has submitted a bid to |
| 278 | a residential property owner who has suffered loss or damage |
| 279 | covered by a property insurance policy, if such contractor is |
| 280 | asked by the homeowner or the insurer to discuss or explain a |
| 281 | bid for construction or repair of covered property, and is doing |
| 282 | so for usual and customary fees applicable to the work to be |
| 283 | performed by the contractor as stated in the contract between |
| 284 | the contractor and the insured. |
| 285 |
|
| 286 | The provisions of subsections (5)-(16) (5)-(13) apply only to |
| 287 | residential property insurance policies and condominium unit |
| 288 | owner association policies as defined in s. 718.111(11). |
| 289 | Section 3. Effective January 1, 2011, subsections (7) |
| 290 | through (11) of section 626.8651, Florida Statutes, are |
| 291 | redesignated as subsections (8) through (12), respectively, and |
| 292 | a new subsection (7) is added to that section to read: |
| 293 | 626.8651 Public adjuster apprentice license; |
| 294 | qualifications.- |
| 295 | (7) A public adjuster apprentice shall complete a minimum |
| 296 | of 8 hours of continuing education specific to the practice of a |
| 297 | public adjuster, 2 hours of which must relate to ethics, in |
| 298 | order to qualify for licensure as a public adjuster. The |
| 299 | continuing education must be in subjects designed to inform the |
| 300 | licensee regarding the current insurance laws of this state for |
| 301 | the purpose of enabling him or her to engage in business as an |
| 302 | insurance adjuster fairly and without injury to the public and |
| 303 | to adjust all claims in accordance with the insurance contract |
| 304 | and the laws of this state. |
| 305 | Section 4. Effective January 1, 2011, section 626.8796, |
| 306 | Florida Statutes, is amended to read: |
| 307 | 626.8796 Public adjuster contracts; fraud statement.- |
| 308 | (1) All contracts for public adjuster services must be in |
| 309 | writing and must prominently display the following statement on |
| 310 | the contract: "Pursuant to s. 817.234, Florida Statutes, any |
| 311 | person who, with the intent to injure, defraud, or deceive any |
| 312 | insurer or insured, prepares, presents, or causes to be |
| 313 | presented a proof of loss or estimate of cost or repair of |
| 314 | damaged property in support of a claim under an insurance policy |
| 315 | knowing that the proof of loss or estimate of claim or repairs |
| 316 | contains any false, incomplete, or misleading information |
| 317 | concerning any fact or thing material to the claim commits a |
| 318 | felony of the third degree, punishable as provided in s. |
| 319 | 775.082, s. 775.083, or s. 775.084, Florida Statutes." |
| 320 | (2) A public adjuster contract must contain the following |
| 321 | information: the full name, permanent business address, and |
| 322 | license number of the public adjuster; the full name of the |
| 323 | public adjusting firm; and the insured's full name and street |
| 324 | address, together with a brief description of the loss. The |
| 325 | contract must state the percentage of compensation for the |
| 326 | public adjuster's services; the type of claim, including an |
| 327 | emergency claim, nonemergency claim, or supplemental claim; the |
| 328 | signatures of the public adjuster and the insured; and the |
| 329 | signature date. An unaltered copy of the executed contract must |
| 330 | be remitted to the insurer within 30 days after execution. |
| 331 | Section 5. Section 626.70132, Florida Statutes, is created |
| 332 | to read: |
| 333 | 626.70132 Duty to file windstorm or hurricane claim.-A |
| 334 | claim, supplemental claim, or reopened claim under an insurance |
| 335 | policy that provides personal lines residential coverage, as |
| 336 | defined in s. 627.4025, for loss or damage caused by the peril |
| 337 | of windstorm or hurricane is barred unless notice of the claim, |
| 338 | supplemental claim, or reopened claim was given to the insurer |
| 339 | in accordance with the terms of the policy within 3 years after |
| 340 | the hurricane first made landfall or the windstorm caused the |
| 341 | covered damage. For purposes of this section, the term |
| 342 | "supplemental claim" or "reopened claim" means a claim for |
| 343 | recovery of additional payments from the insurer for losses from |
| 344 | the same hurricane or windstorm for which the insurer has |
| 345 | previously paid pursuant to the initial claim. This section may |
| 346 | not be interpreted to affect any applicable limitation on civil |
| 347 | actions provided in s. 95.11 for claims, supplemental claims, or |
| 348 | reopened claims timely filed under this section. |
| 349 | Section 6. Except as otherwise expressly provided by this |
| 350 | act, this act shall take effect June 1, 2010. |