Bill Text: FL H1181 | 2010 | Regular Session | Comm Sub

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Bill Title: Public Adjusters

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2010-04-30 - Died in General Government Policy Council [H1181 Detail]

Download: Florida-2010-H1181-Comm_Sub.html

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CS/HB 1181

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.

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