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 |
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34 | Be It Enacted by the Legislature of the State of Florida: |
35 |
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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 |
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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 |
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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. |