THE NEWS SERVICE OF FLORIDA: Appeals Court Looks at Public Adjuster Law

The News Service of Florida published the following article today, November 8, 2010:

APPEALS COURT LOOKS AT PUBLIC ADJUSTER LAW

By KATHLEEN HAUGHNEY
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, November 8, 2010……….A state appeals court on Tuesday will examine whether a 2008 law requiring public adjusters to wait to solicit and aid policyholders until 48 hours after a major loss is constitutional.

Last spring, a Leon County circuit judge ruled against public insurance adjuster Frederick Kortum when Kortum filed suit to overturn the new state law creating the waiting period.

Lawmakers said the idea of the 48-hour rule was to give homeowners who had suffered a substantial loss some time to make decisions necessary right after a disaster to rebuild their lives. But public adjusters have cried foul, saying the law has cut into their business and is also bad for consumers.

“Basically what it does is it’s bad public policy because it prevents consumers from having unfettered access to advocates who will fight for their rights,” said David Beasley, president of the Florida Association of Public Insurance Adjusters. “In the first 48 hours when someone has a loss that can be the most critical time… because some if it can be complex and confusing.”

Kortum, backed by the association, filed the lawsuit in Leon County court last spring. He argued that the state law was unconstitutionally suppressing his right to free speech and his right to equal protection. He said the statute singles him out when adjusters employed by the insurance company and tradespeople, such as roofers or contractors, are not subject to the same waiting period. Repair businesses can approach a homeowner any time to solicit their business – and insurance companies usually try to have their adjusters at the properties quickly too.

Public adjusters say they understand there may be “unscrupulous” operators talking to homeowners, but that the 48-hour law is not the way to go.

“If some public adjuster is acting inappropriately, we strongly support reporting and addressing those concerns with the state,” Beasley said.

The suit was filed against the Chief Financial Officer’s office because it is tasked with enforcing the laws and regulations governing public insurance adjusters. Lawyers for CFO Alex Sink defended the law in court last spring, arguing that the law curbed conduct rather than suppressed speech. The law was a ban on 48 hours of face-to-face or telephone solicitation, but it did not ban printed or electronic communications such as door fliers, door hangars, E-mail messages or letters, they argued.

In his opinion upholding the law, Tallahassee Circuit Judge James Shelfer wrote that the statute language was unclear and the interpretations advanced by both parties were “reasonable and logical,” but that the defendant’s position was not clearly erroneous, meaning the court must side with the state.

“The court is convinced from the evidence that the statute exists to serve a legitimate governmental purpose,” Shelfer wrote. “The primary legitimate government purpose of the statute is to provide a citizen that has been traumatized by a casualty loss with some breathing room before making the decisions that will be necessary to begin to put his or her life back together,”

The appeal will be heard Tuesday by the 1st District Court of Appeal in Tallahassee.

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