September 25, 2016
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       CS for CS for SB 2264                            First Engrossed
       
       
       
       
       
       
       
       
       20102264e1
       
    1                        A bill to be entitled                      
    2         An act relating to property insurance claims; amending
    3         s. 626.854, F.S.; providing statements that may be
    4         considered deceptive or misleading if made in any
    5         public adjuster’s advertisement or solicitation;
    6         providing a definition for the term “written
    7         advertisement”; requiring that a disclaimer be
    8         included in any public adjuster’s written
    9         advertisement; providing requirements for such
   10         disclaimer; providing limitations on the amount of
   11         compensation that may be received for a reopened or
   12         supplemental claim; requiring certain persons who act
   13         on behalf of an insurer to provide notice to the
   14         insurer, claimant, public adjuster, or legal
   15         representative for an onsite inspection of the insured
   16         property; authorizing the insured or claimant to deny
   17         access to the property if notice is not provided;
   18         requiring the public adjuster to ensure prompt notice
   19         of certain property loss claims; providing that an
   20         insurer be allowed to interview the insured directly
   21         about the loss claim; prohibiting the insurer from
   22         obstructing or preventing the public adjuster from
   23         communicating with the insured; requiring that the
   24         insurer communicate with the public adjuster in an
   25         effort to reach agreement as to the scope of the
   26         covered loss under the insurance policy; prohibiting a
   27         public adjuster from restricting or preventing persons
   28         acting on behalf of the insured from having reasonable
   29         access to the insured or the insured’s property;
   30         prohibiting a public adjuster from restricting or
   31         preventing the insured’s adjuster from having
   32         reasonable access to or inspecting the insured’s
   33         property; authorizing the insured’s adjuster to be
   34         present for the inspection; prohibiting a licensed
   35         contractor or subcontractor from adjusting a claim on
   36         behalf of an insured if such contractor or
   37         subcontractor is not a licensed public adjuster;
   38         providing an exception; amending s. 626.8651, F.S.;
   39         requiring that a public adjuster apprentice complete a
   40         minimum number of hours of continuing education to
   41         qualify for licensure; amending s. 626.8796, F.S.;
   42         providing requirements for a public adjuster contract;
   43         creating s. 626.70132, F.S.; requiring that notice of
   44         a claim, supplemental claim, or reopened claim be
   45         given to the insurer within a specified period after a
   46         windstorm or hurricane occurs; providing a definition
   47         for the terms “supplemental claim” or “reopened
   48         claim”; providing applicability; providing effective
   49         dates.
   50  
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. Effective June 1, 2010, subsection (11) of
   54  section 626.854, Florida Statutes, is amended to read:
   55         626.854 “Public adjuster” defined; prohibitions.—The
   56  Legislature finds that it is necessary for the protection of the
   57  public to regulate public insurance adjusters and to prevent the
   58  unauthorized practice of law.
   59         (11)(a) If a public adjuster enters into a contract with an
   60  insured or claimant to reopen a claim or to file a supplemental
   61  claim that seeks additional payments for a claim that has been
   62  previously paid in part or in full or settled by the insurer,
   63  the public adjuster may not charge, agree to, or accept any
   64  compensation, payment, commission, fee, or other thing of value
   65  based on a previous settlement or previous claim payments by the
   66  insurer for the same cause of loss. The charge, compensation,
   67  payment, commission, fee, or other thing of value may be based
   68  only on the claim payments or settlement obtained through the
   69  work of the public adjuster after entering into the contract
   70  with the insured or claimant. Compensation for a reopened or
   71  supplemental claim may not exceed 20 percent of the reopened or
   72  supplemental claim payment. The contracts described in this
   73  paragraph are not subject to the limitations in paragraph (b).
   74         (b) A public adjuster may not charge, agree to, or accept
   75  any compensation, payment, commission, fee, or other thing of
   76  value in excess of:
   77         1. Ten percent of the amount of insurance claim payments by
   78  the insurer for claims based on events that are the subject of a
   79  declaration of a state of emergency by the Governor. This
   80  provision applies to claims made during the period of 1 year
   81  after the declaration of emergency. After the period of 1 year,
   82  the limitations in subparagraph 2. apply.
   83         2. Twenty percent of the amount of all other insurance
   84  claim payments by the insurer for claims that are not based on
   85  events that are the subject of a declaration of a state of
   86  emergency by the Governor.
   87  
   88  The provisions of subsections (5)-(13) apply only to residential
   89  property insurance policies and condominium association policies
   90  as defined in s. 718.111(11).
   91         Section 2. Section 626.854, Florida Statutes, as amended by
   92  this act, is amended to read:
   93         626.854 “Public adjuster” defined; prohibitions.—The
   94  Legislature finds that it is necessary for the protection of the
   95  public to regulate public insurance adjusters and to prevent the
   96  unauthorized practice of law.
   97         (1) A “public adjuster” is any person, except a duly
   98  licensed attorney at law as hereinafter in s. 626.860 provided,
   99  who, for money, commission, or any other thing of value,
  100  prepares, completes, or files an insurance claim form for an
  101  insured or third-party claimant or who, for money, commission,
  102  or any other thing of value, acts or aids in any manner on
  103  behalf of an insured or third-party claimant in negotiating for
  104  or effecting the settlement of a claim or claims for loss or
  105  damage covered by an insurance contract or who advertises for
  106  employment as an adjuster of such claims, and also includes any
  107  person who, for money, commission, or any other thing of value,
  108  solicits, investigates, or adjusts such claims on behalf of any
  109  such public adjuster.
  110         (2) This definition does not apply to:
  111         (a) A licensed health care provider or employee thereof who
  112  prepares or files a health insurance claim form on behalf of a
  113  patient.
  114         (b) A person who files a health claim on behalf of another
  115  and does so without compensation.
  116         (3) A public adjuster may not give legal advice. A public
  117  adjuster may not act on behalf of or aid any person in
  118  negotiating or settling a claim relating to bodily injury,
  119  death, or noneconomic damages.
  120         (4) For purposes of this section, the term “insured”
  121  includes only the policyholder and any beneficiaries named or
  122  similarly identified in the policy.
  123         (5) A public adjuster may not directly or indirectly
  124  through any other person or entity solicit an insured or
  125  claimant by any means except on Monday through Saturday of each
  126  week and only between the hours of 8 a.m. and 8 p.m. on those
  127  days.
  128         (6) A public adjuster may not directly or indirectly
  129  through any other person or entity initiate contact or engage in
  130  face-to-face or telephonic solicitation or enter into a contract
  131  with any insured or claimant under an insurance policy until at
  132  least 48 hours after the occurrence of an event that may be the
  133  subject of a claim under the insurance policy unless contact is
  134  initiated by the insured or claimant.
  135         (7) An insured or claimant may cancel a public adjuster’s
  136  contract to adjust a claim without penalty or obligation within
  137  3 business days after the date on which the contract is executed
  138  or within 3 business days after the date on which the insured or
  139  claimant has notified the insurer of the claim, by phone or in
  140  writing, whichever is later. The public adjuster’s contract
  141  shall disclose to the insured or claimant his or her right to
  142  cancel the contract and advise the insured or claimant that
  143  notice of cancellation must be submitted in writing and sent by
  144  certified mail, return receipt requested, or other form of
  145  mailing which provides proof thereof, to the public adjuster at
  146  the address specified in the contract; provided, during any
  147  state of emergency as declared by the Governor and for a period
  148  of 1 year after the date of loss, the insured or claimant shall
  149  have 5 business days after the date on which the contract is
  150  executed to cancel a public adjuster’s contract.
  151         (8) It is an unfair and deceptive insurance trade practice
  152  pursuant to s. 626.9541 for a public adjuster or any other
  153  person to circulate or disseminate any advertisement,
  154  announcement, or statement containing any assertion,
  155  representation, or statement with respect to the business of
  156  insurance which is untrue, deceptive, or misleading.
  157         (a) For purposes of this section, the following statements,
  158  if made in any public adjuster’s advertisement or solicitation,
  159  shall be considered deceptive or misleading:
  160         1. A statement or representation that invites an insured
  161  policyholder to submit a claim when the policyholder does not
  162  have covered damage to insured property.
  163         2. Any statement or representation that invites an insured
  164  policyholder to submit a claim by offering monetary or other
  165  valuable inducement.
  166         3. A statement or representation that invites an insured
  167  policyholder to submit a claim by stating that there is “no
  168  risk” to the policyholder by submitting such claim.
  169         4. Any statement or representation, or use of a logo or
  170  shield, that would imply or could be mistakenly construed that
  171  the solicitation was issued or distributed by a governmental
  172  agency or is sanctioned or endorsed by a governmental agency.
  173         (b) For purposes of this paragraph, the term “written
  174  advertisement” includes only newspapers, magazines, flyers, and
  175  bulk mailers. The following disclaimer, which is not required to
  176  be printed on standard size business cards, shall be added in
  177  bold print and capital letters in typeface no smaller than the
  178  typeface of the body of the text to all written advertisements
  179  by any public adjuster:
  180         “THIS IS A SOLICITATION FOR BUSINESS. IF YOU HAVE HAD
  181         A CLAIM FOR AN INSURED PROPERTY LOSS OR DAMAGE AND YOU
  182         ARE SATISFIED WITH THE PAYMENT BY YOUR INSURER, YOU
  183         MAY DISREGARD THIS ADVERTISEMENT.”
  184         (9) A public adjuster, a public adjuster apprentice, or any
  185  person or entity acting on behalf of a public adjuster or public
  186  adjuster apprentice may not give or offer to give a monetary
  187  loan or advance to a client or prospective client.
  188         (10) A public adjuster, public adjuster apprentice, or any
  189  individual or entity acting on behalf of a public adjuster or
  190  public adjuster apprentice may not give or offer to give,
  191  directly or indirectly, any article of merchandise having a
  192  value in excess of $25 to any individual for the purpose of
  193  advertising or as an inducement to entering into a contract with
  194  a public adjuster.
  195         (11)(a) If a public adjuster enters into a contract with an
  196  insured or claimant to reopen a claim or to file a supplemental
  197  claim that seeks additional payments for a claim that has been
  198  previously paid in part or in full or settled by the insurer,
  199  the public adjuster may not charge, agree to, or accept any
  200  compensation, payment, commission, fee, or other thing of value
  201  based on a previous settlement or previous claim payments by the
  202  insurer for the same cause of loss. The charge, compensation,
  203  payment, commission, fee, or other thing of value may be based
  204  only on the claim payments or settlement obtained through the
  205  work of the public adjuster after entering into the contract
  206  with the insured or claimant. Compensation for a reopened or
  207  supplemental claim may not exceed 20 percent of the reopened or
  208  supplemental claim payment. The contracts described in this
  209  paragraph are not subject to the limitations in paragraph (b).
  210         (b) A public adjuster may not charge, agree to, or accept
  211  any compensation, payment, commission, fee, or other thing of
  212  value in excess of:
  213         1. Ten percent of the amount of insurance claim payments by
  214  the insurer for claims based on events that are the subject of a
  215  declaration of a state of emergency by the Governor. This
  216  provision applies to claims made during the period of 1 year
  217  after the declaration of emergency. After the period of 1 year,
  218  the limitations in subparagraph 2. apply.
  219         2. Twenty percent of the amount of insurance claim payments
  220  by the insurer for claims that are not based on events that are
  221  the subject of a declaration of a state of emergency by the
  222  Governor.
  223         (12) Each public adjuster shall provide to the claimant or
  224  insured a written estimate of the loss to assist in the
  225  submission of a proof of loss or any other claim for payment of
  226  insurance proceeds. The public adjuster shall retain such
  227  written estimate for at least 5 years and shall make such
  228  estimate available to the claimant or insured and the department
  229  upon request.
  230         (13) A public adjuster, public adjuster apprentice, or any
  231  person acting on behalf of a public adjuster or apprentice may
  232  not accept referrals of business from any person with whom the
  233  public adjuster conducts business if there is any form or manner
  234  of agreement to compensate the person, whether directly or
  235  indirectly, for referring business to the public adjuster. A
  236  public adjuster may not compensate any person, except for
  237  another public adjuster, whether directly or indirectly, for the
  238  principal purpose of referring business to the public adjuster.
  239         (14) A company employee adjuster, independent adjuster,
  240  attorney, investigator, or other persons acting on behalf of an
  241  insurer that needs access to an insured or claimant or to the
  242  insured property that is the subject of a claim shall provide at
  243  least 48 hours’ notice to the insured or claimant, public
  244  adjuster, or legal representative before scheduling a meeting
  245  with the claimant or an onsite inspection of the insured
  246  property. The insured or claimant may deny access to the
  247  property if this notice has not been provided. The insured or
  248  claimant may waive this 48-hour notice.
  249         (15)(a) A public adjuster shall ensure prompt notice of any
  250  property loss claim submitted to an insurer by or through a
  251  public adjuster or on which a public adjuster represents the
  252  insured at the time the claim or notice of loss is submitted to
  253  the insurer. The public adjuster shall ensure that notice is
  254  given to the insurer, the public adjuster’s contract is provided
  255  to the insurer, the property is made available for inspection of
  256  the loss or damage by the insurer, and the insurer is given an
  257  opportunity to interview the insured directly about the loss and
  258  claim. The insurer shall be allowed to obtain necessary
  259  information to investigate and respond to the claim. The insurer
  260  may not exclude the public adjuster from its in-person meetings
  261  with the insured. The insurer shall meet or communicate with the
  262  public adjuster in an effort to reach agreement as to the scope
  263  of the covered loss under the insurance policy. This section
  264  does not impair the terms and conditions of the insurance policy
  265  in effect at the time the claim is filed.
  266         (b) A public adjuster may not restrict or prevent an
  267  insurer, company employee adjuster, independent adjuster,
  268  attorney, investigator, or other person acting on behalf of the
  269  insurer from having reasonable access at reasonable times to any
  270  insured or claimant or to the insured property that is the
  271  subject of a claim.
  272         (c) A public adjuster may not act or fail to reasonably act
  273  in any manner that would obstruct or prevent an insurer or
  274  insurer’s adjuster from timely gaining access to conduct an
  275  inspection of any part of the insured property for which there
  276  is a claim for loss or damage to the property. The public
  277  adjuster that represents the insured may be present for the
  278  insurer’s inspection of the property loss or damage but, if the
  279  lack of availability of the public adjuster would otherwise
  280  delay the access to or the inspection of the insured property by
  281  the insurer, the public adjuster or the insured must allow the
  282  insurer to gain access to the insured property to facilitate the
  283  insurer’s prompt inspection of the loss or damage without the
  284  participation or presence of the public adjuster or insured.
  285         (16)A licensed contractor under part I of chapter 489, or
  286  a subcontractor, may not adjust a claim on behalf of an insured
  287  without being licensed and compliant as a public adjuster under
  288  this chapter. However, if asked by the residential property
  289  owner who has suffered loss or damage covered by a property
  290  insurance policy, or the insurer of such property, a licensed
  291  contractor may discuss or explain a bid for construction or
  292  repair of covered property if the contractor is doing so for
  293  usual and customary fees applicable to the work to be performed
  294  as stated in the contract between the contractor and the
  295  insured.
  296  
  297  The provisions of subsections (5)-(16) (5)-(13) apply only to
  298  residential property insurance policies and condominium unit
  299  owner association policies as defined in s. 718.111(11).
  300         Section 3. Present subsections (7) through (11) of section
  301  626.8651, Florida Statutes, are redesignated as subsections (8)
  302  through (12), respectively, and a new subsection (7) is added to
  303  that section, to read:
  304         626.8651 Public adjuster apprentice license;
  305  qualifications.—
  306         (7) A public adjuster apprentice shall complete a minimum
  307  of 8 hours of continuing education specific to the practice of a
  308  public adjuster, 2 hours of which must relate to ethics, in
  309  order to qualify for licensure as a public adjuster. The
  310  continuing education must be in subjects designed to inform the
  311  licensee regarding the current insurance laws of this state for
  312  the purpose of enabling him or her to engage in business as an
  313  insurance adjuster fairly and without injury to the public and
  314  to adjust all claims in accordance with the insurance contract
  315  and the laws of this state.
  316         Section 4. Section 626.8796, Florida Statutes, is amended
  317  to read:
  318         626.8796 Public adjuster contracts; fraud statement.—
  319         (1) All contracts for public adjuster services must be in
  320  writing and must prominently display the following statement on
  321  the contract: “Pursuant to s. 817.234, Florida Statutes, any
  322  person who, with the intent to injure, defraud, or deceive any
  323  insurer or insured, prepares, presents, or causes to be
  324  presented a proof of loss or estimate of cost or repair of
  325  damaged property in support of a claim under an insurance policy
  326  knowing that the proof of loss or estimate of claim or repairs
  327  contains any false, incomplete, or misleading information
  328  concerning any fact or thing material to the claim commits a
  329  felony of the third degree, punishable as provided in s.
  330  775.082, s. 775.083, or s. 775.084, Florida Statutes.”
  331         (2) A public adjuster contract must contain the following
  332  information: full name, permanent business address, and license
  333  number of the public adjuster, the full name of the public
  334  adjusting firm, and the insured’s full name and street address,
  335  together with a brief description of the loss. The contract must
  336  state the percentage of compensation for the public adjuster’s
  337  services, the type of claim, including an emergency claim,
  338  nonemergency claim, or supplemental claim, the signatures of the
  339  public adjuster and all named insureds, and the signature date.
  340  If all named insureds signatures are not available, the public
  341  adjuster shall submit an affidavit signed by the available named
  342  insureds attesting that they have authority to enter into the
  343  contract and to settle all claim issues on behalf of all named
  344  insureds. An unaltered copy of the executed contract must be
  345  remitted to the insurer within 30 days after execution.
  346         Section 5. Effective June 1, 2010, section 626.70132,
  347  Florida Statutes, is created to read:
  348         626.70132 Duty to file windstorm or hurricane claim.—A
  349  claim, supplemental claim, or reopened claim under an insurance
  350  policy that provides personal lines residential coverage, as
  351  defined in s. 627.4025, for loss or damage caused by the peril
  352  of windstorm or hurricane is barred unless notice of the claim,
  353  supplemental claim, or reopened claim was given to the insurer
  354  in accordance with the terms of the policy within 3 years after
  355  the hurricane first made landfall or the windstorm caused the
  356  covered damage. For purposes of this section, the term
  357  “supplemental claim” or “reopened claim” means any additional
  358  claim for recovery from the insurer for losses from the same
  359  hurricane or windstorm for which the insurer has previously
  360  adjusted pursuant to the initial claim. This section may not be
  361  interpreted to affect any applicable limitation on civil actions
  362  provided in s. 95.11 for claims, supplemental claims, or
  363  reopened claims timely filed under this section.
  364         Section 6. Except as otherwise expressly provided in this
  365  act and except for this section, which shall take effect June 1,
  366  2010, this act shall take effect January 1, 2011.

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