A public adjuster is, subject to some exceptions, a person “who, for money, commission, or any other thing of value, prepares, completes, or files an insurance claim form for an insured or third-party claimaint or who, for money, commission, or any other thing of value, acts on behalf of, or aids an insured or third-party claimant in negotiating for or effecting the settlement of a claim or claims for loss or damage covered by an insurance contract or who advertises for employment as an adjuster of such claims.” Fla. Stat. §626.854(1).  Typically, public adjusters work with insureds who have suffered a loss to try to get the insurance company to pay more money. Public insurance adjusters are regulated by Florida’s Department of Financial Services and have their own trade association. There is no doubt that public insurance adjusting is a big business in Florida

For several years, Florida law has prohibited public insurance adjusters from initiating contact with claimants for at least 48 hours after an event that causes a loss that might be covered by an insurance policy. Fla. Stat. §626.854(6). One public insurance adjuster, Frederick Kortum, challenged the constitutionality of this prohibition, claiming that it violated, among other rights, his right to free speech.  The Department of Financial Services argued that the statute did not prohibit a public adjuster from communicating with a claimant in writing and, as such, did not regulate the content of speech.  The trial court agreed with the Department, finding that the statute regulated conduct, not speech, and upheld the constitutionality of the statute.  On appeal the First District Court of Appeal disagreed and ruled the statute to be unconstitutional.  

The Florida Supreme Court recently issued its opinion in Jeffrey H. Atwater v. Frederick W. Kortum, Case No. SC11-133, affirming the appellate court.  In its opinion, the Florida Supreme Court found that Fla. Stat. §626.854(6) as written prohibits public adjusters from initiating communication, in any manner, with a potential claimant for a period of time after a claim-producing event.  As such, the Supreme Court further found that the statute does, in fact, regulate commercial speech.  The Court analogized this case to a United States Supreme Court case finding unconstitutional a Florida regulation that prohibited accountants from soliciting business.  Based upon that analysis and those findings, the Florida Supreme Court determined that Fla. Stat. §626.854(6) is unconstitutional.

The prohibition against Florida public adjusters initiating communications with claimants in the days immediately following an occurrence appears to be dead, at least for now.  We’ll see if the Florida Legislature attempts to craft a more narrow restriction that better serves the State’s interests in a future session.

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David Greene is a partner with the law firm of Fox Rothschild LLP. David represents clients in a variety of commercial litigation matters in State and Federal Courts throughout Florida.  David can be contacted at (561) 804-4441 or dgreene@foxrothschild.com.