| 1 | A bill to be entitled |
| 2 | An act relating to insurance representatives; amending s. |
| 3 | 626.854, F.S.; specifying prohibitions for public |
| 4 | adjusters relating to soliciting professional employment; |
| 5 | prohibiting public adjusters and persons associated with |
| 6 | public adjusters from sending unsolicited written |
| 7 | communications under certain circumstances; specifying |
| 8 | criteria for such communications; specifying requirements |
| 9 | for and prohibitions relating to certain written or |
| 10 | electronic communications from public adjusters to |
| 11 | prospective clients; providing an effective date. |
| 12 |
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| 13 | Be It Enacted by the Legislature of the State of Florida: |
| 14 |
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| 15 | Section 1. Subsection (8) and paragraph (a) of subsection |
| 16 | (11) of section 626.854, Florida Statutes, are amended to read: |
| 17 | 626.854 "Public adjuster" defined; prohibitions.--The |
| 18 | Legislature finds that it is necessary for the protection of the |
| 19 | public to regulate public insurance adjusters and to prevent the |
| 20 | unauthorized practice of law. |
| 21 | (8)(a) It is an unfair and deceptive insurance trade |
| 22 | practice pursuant to s. 626.9541 for a public adjuster or any |
| 23 | other person to circulate or disseminate any advertisement, |
| 24 | announcement, or statement containing any assertion, |
| 25 | representation, or statement with respect to the business of |
| 26 | insurance which is untrue, deceptive, or misleading. |
| 27 | (b) Except as provided in this subsection, a public |
| 28 | adjuster may not solicit professional employment from a |
| 29 | prospective client with whom the public adjuster has any family |
| 30 | or prior professional relationship, in person or otherwise, when |
| 31 | a significant motive for the public adjuster's doing so is the |
| 32 | public adjuster's pecuniary gain. A public adjuster may not |
| 33 | permit employees or agents of the public adjuster to solicit on |
| 34 | the public adjuster's behalf. A public adjuster may not enter |
| 35 | into an agreement for, charge, or collect a fee for professional |
| 36 | employment obtained in violation of this paragraph. The term |
| 37 | "solicit" includes contact in person, by telephone, telegraph, |
| 38 | or facsimile, or by any other communication directed to a |
| 39 | specific recipient and includes any written form of |
| 40 | communication directed to a specific recipient and not meeting |
| 41 | the requirements of this paragraph, and electronic mail |
| 42 | communications. A public adjuster may not send, or knowingly |
| 43 | permit to be sent, on the public adjuster's behalf or on behalf |
| 44 | of the public adjuster's firm or partner, an associate of the |
| 45 | public adjuster, or any other public adjuster affiliated with |
| 46 | the public adjuster or the public adjuster's firm an unsolicited |
| 47 | electronic mail communication directly or indirectly to a |
| 48 | prospective client for the purpose of obtaining professional |
| 49 | claims employment. |
| 50 | (c)1. A public adjuster may not send, or knowingly permit |
| 51 | to be sent, on the public adjuster's behalf or on behalf of the |
| 52 | public adjuster's firm or partner, an associate of the public |
| 53 | adjuster, or any other public adjuster affiliated with the |
| 54 | public adjuster or the public adjuster's firm an unsolicited |
| 55 | written communication directly or indirectly to a prospective |
| 56 | client for the purpose of obtaining professional employment if: |
| 57 | a. The written communication concerns a claim or otherwise |
| 58 | relates to an accident or disaster involving the person to whom |
| 59 | the communication is addressed or a relative of that person, |
| 60 | unless the accident or disaster occurred more than 30 days prior |
| 61 | to the mailing of the communication; |
| 62 | b. It has been made known to the public adjuster that the |
| 63 | person does not want to receive such communications from the |
| 64 | public adjuster; |
| 65 | c. The communication involves coercion, duress, fraud, |
| 66 | overreaching, harassment, intimidation, or undue influence; |
| 67 | d. The communication contains a false, fraudulent, |
| 68 | misleading, or deceptive statement or claim; or |
| 69 | e. The public adjuster knows or reasonably should know |
| 70 | that the physical, emotional, or mental state of the person |
| 71 | makes it unlikely that the person would exercise reasonable |
| 72 | judgment in employing a public adjuster. |
| 73 | 2. Written or electronic communications from a public |
| 74 | adjuster, a public adjuster's firm or partner, an associate of |
| 75 | the public adjuster, or any other public adjuster affiliated |
| 76 | with the public adjuster or the public adjuster's firm to |
| 77 | prospective clients for the purpose of obtaining professional |
| 78 | employment shall not contain a false, misleading, or deceptive |
| 79 | communication about the public adjuster. A communication |
| 80 | violates this prohibition if the communication: |
| 81 | a. Contains a material misrepresentation of fact or law; |
| 82 | b. Is false or misleading; |
| 83 | c. Fails to disclose material information necessary to |
| 84 | prevent the information supplied from being false or misleading; |
| 85 | d. Is unsubstantiated in fact; |
| 86 | e. Is deceptive; |
| 87 | f. Contains any reference to past successes or results |
| 88 | obtained; |
| 89 | g. Promises results; |
| 90 | h. States or implies that the public adjuster can achieve |
| 91 | results by means that violate the law; |
| 92 | i. Compares the public adjuster's services with other |
| 93 | adjusters' services, unless the comparison can be factually |
| 94 | substantiated; or |
| 95 | j. Contains a testimonial. |
| 96 | 3. The first page of such written communication and the |
| 97 | lower left corner of the envelope containing the written |
| 98 | communication shall be plainly marked "ADVERTISEMENT" in red |
| 99 | ink. If the written communication is in the form of a self- |
| 100 | mailing brochure or pamphlet, the address panel of the brochure |
| 101 | or pamphlet and the inside of the brochure or pamphlet shall be |
| 102 | plainly marked "ADVERTISEMENT" in red ink. Brochures solicited |
| 103 | by clients or prospective clients need not be marked |
| 104 | "ADVERTISEMENT". |
| 105 | 4. Written communications mailed to prospective clients |
| 106 | shall be sent only by regular United States mail and not by |
| 107 | registered mail or other forms of restricted delivery. |
| 108 | 5. Every written communication must be accompanied by a |
| 109 | written statement detailing the background, training, and |
| 110 | experience of the public adjuster or public adjuster firm. The |
| 111 | statement must include information about the specific experience |
| 112 | of the advertising public adjuster or public adjuster firm in |
| 113 | the area or areas of public adjuster for which professional |
| 114 | employment is sought. Each written communication disseminated by |
| 115 | a public adjuster referral service shall be accompanied by a |
| 116 | written statement describing the background, training, and |
| 117 | experience of each public adjuster to whom the recipient may be |
| 118 | referred. |
| 119 | 6. If a contract for representation is mailed with the |
| 120 | written communication, the top of each page of the contract |
| 121 | shall be marked "SAMPLE" in red ink in a type size one size |
| 122 | larger than the largest type used in the contract and the words |
| 123 | "DO NOT SIGN" shall appear on the client signature line. |
| 124 | 7. The first sentence of any written communication |
| 125 | prompted by a specific occurrence involving or affecting the |
| 126 | intended recipient of the communication or a family member shall |
| 127 | be: "IF YOU HAVE ALREADY RETAINED A PUBLIC ADJUSTER FOR THIS |
| 128 | MATTER, PLEASE DISREGARD THIS LETTER." |
| 129 | 8. Written communications may not be made to resemble |
| 130 | legal pleadings or other legal documents. This prohibition does |
| 131 | not preclude the mailing of brochures and pamphlets. |
| 132 | 9. If a public adjuster other than the public adjuster |
| 133 | whose name or signature appears on the communication will |
| 134 | actually handle the case or matter, any written communication |
| 135 | concerning a specific matter shall include a statement advising |
| 136 | the client of that fact. |
| 137 | 10. Any written communication prompted by a specific |
| 138 | occurrence involving or affecting the intended recipient of the |
| 139 | communication or a family member shall disclose how the public |
| 140 | adjuster obtained the information prompting the communication. |
| 141 | The disclosure required by this subparagraph shall be specific |
| 142 | enough to help the recipient understand the extent of the public |
| 143 | adjuster's knowledge regarding the recipient's particular |
| 144 | situation. |
| 145 | 11. A written communication seeking employment by a |
| 146 | specific prospective client in a specific matter may not reveal |
| 147 | on the envelope, or on the outside of a self-mailing brochure or |
| 148 | pamphlet, the nature of the subject of the client's claim. |
| 149 | (11)(a) If a public adjuster enters into a contract with |
| 150 | an insured or claimant to reopen a claim or to file a |
| 151 | supplemental claim that seeks additional payments for a claim |
| 152 | that has been previously paid in part or in full or settled by |
| 153 | the insurer, the public adjuster may not charge, agree to, or |
| 154 | accept any compensation, payment, commission, fee, or other |
| 155 | thing of value based on a written offer, previous settlement, or |
| 156 | previous claim payments by the insurer for the same cause of |
| 157 | loss. The charge, compensation, payment, commission, fee, or |
| 158 | other thing of value may be based only on the claim payments or |
| 159 | settlement obtained through the work of the public adjuster |
| 160 | after entering into the contract with the insured or claimant. |
| 161 | The contracts described in this paragraph are not subject to the |
| 162 | limitations in paragraph (b). |
| 163 |
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| 164 | The provisions of subsections (5)-(12) apply only to residential |
| 165 | property insurance policies and condominium association policies |
| 166 | as defined in s. 718.111(11). |
| 167 | Section 2. This act shall take effect July 1, 2009. |