Public Adjusters Lose 48 Hour Solicitation Ban Case
Florida public adjusters have been served a huge loss in their ability to solicit and aid policyholders within 48 hours of a loss. A final judgment in Frederick Kortum vs. Alex Sink was issued on May 7, 2010. The ruling, in favor of the Department of Financial Services and upholding Florida Statute Section 626.854(6), reached my desk this morning.
The Court noted that the Department of Financial Services interpreted the statute to be a ban on conduct rather than a suppression of commercial speech. It specifically noted that the Department argued the statute did not ban "e-mails or letters, flyers or door hangars" during the 48 hour period.
The trial court judgment found that the statute exists for a legitimate public purpose 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 statute provides the respite the legislature feels that the victim of a casualty needs. To the Court, that is a substantial and legitimate and important governmental purpose.
The Court went on to note that the statute was drafted narrowly lasting "only 48 hours" and did not attempt to curb the message or alternative forms of commercial speech--just face to face solicitation and telephone calls.
I am certain that there will be discussions of appeal. I am not certain how this will impact public adjusters’ views on the current proposed insurance bill. I will keep the public adjusting community abreast of developments and thoughts regarding this important topic.
This statute very specifically excludes public adjusters from soliciting within the 48 hour time period, but doesn't prevent other industries from the same solicitation. It was my impression that this was unconstitutional on those grounds alone. How can you ban one industry from solicitation and not others?
Chip:
I remember you posting about this lawsuit when it was first filed and you commented on the "very good constitutional attorneys rerepresenting" the plaintiff in this case. You also predicted a win in the connstitutional case against the 48 hour ban. Woops!!
In my novice and non legal opinion it would appear as though the court used an exceptionally narrow interpretation of the entire case to make the ruling. What you have posted on your site as the ruling seems to completely ignore the selctive enforcement side of the complaint. Having seen this type of narrow ruling on such a broad based complaint would you not advise the client to change venue? How would you alter the complaint to avoid such a narrow ruling? I surely hope you are correct in that it will be appealed as it seems to beg many more questions than this extremely narrow ruling puts forth.
Chris,
I better keep to handicapping insurance cases rather than constitutional matters!
Appeals can change everything, but it is always best to win at the trial level.
I read the ruling again and the judge just seems to not get the argument or it wasn't argued properly. The judge states that "trades people" are different that public adjusters since trade people are hired for a specific purpose only and public adjusters are fiduciary to the citizen? I have news for the judge, but Public Adjusters are hired to do a very specific "purpose" as well and I would argue that our purpose is even more specific.
Taking the State's argument on it's face, how can anybody argue that the a person suffering a loss is better off being solicited within 48 hours by everybody other than a public adjuster???
I just don't think the judge gets it.
I question how this ruling came about?
Was the case presented as unconstitutional to band one industry to solicit.
I think its a better argument when every other industry is soliciting at this moment. They are targeting the Public Adjuster again and they are getting away with it.
Chip:
I remember you posting about this lawsuit when it was first filed and you commented on the "very good constitutional attorneys rerepresenting" the plaintiff in this case. You also predicted a win in the connstitutional case against the 48 hour ban. Woops!!
In my novice and non legal opinion it would appear as though the court used an exceptionally narrow interpretation of the entire case to make the ruling. What you have posted on your site as the ruling seems to completely ignore the selctive enforcement side of the complaint. Having seen this type of narrow ruling on such a broad based complaint would you not advise the client to change venue? How would you alter the complaint to avoid such a narrow ruling? I surely hope you are correct in that it will be appealed as it seems to beg many more questions than this extremely narrow ruling puts forth.
So as I interpret the judges ruling, I can walk up to a policyholders door 5 minutes after a peril has occurred to hang a door hanger or flyer but not simply for the intent of a face to face meeting (or phone call). So any face to face meeting would be incidental and explained as I was simply trying to hang the door hanger or flyer.
Assuming the homeowner speaks anything about that or the adjusting business...that would be considered the homeowner making "first contact" and I'm now in compliance with the 48 hr rule?
So everywhere I go after a peril should be with door hanger or flyer in hand...sounds like.
Just another example of the adversarial judiciary passing arbitrary law of which its lack of real practical application is outweighed only by the mind numbing argument for its need.
I wonder if "devastated" home owners have flooded the mailboxes of the Florida Senators asking for relief from fanatical public adjuster's. What does this mean? Well in laymen terms; get your GC license, become an attorney, open a "mitigation company"...you get the idea.
How is this law, now binding precedent, not a reckless disregard for, and violation of every public adjuster's right to engage in free trade? How can someone reasonably argue that P/A's are not being singled out and disadvantaged; a renaissance of discrimination?
What is going to be even more amusing is to see how this "law" will be enforced. I am a GC, Public Adjuster, and just some time from passing the Florida Bar. When I knock on that door, I am wearing my "GC" hat. Who can tell me otherwise? How can they prove it, or which "interest" I am looking to forward?...absurd.
Mike Rump makes a good point. Are we to assume that the Independent Adjuster is NOT in a fiduciary relationship with the Carrier? "Fiduciary Relationship": Special relationship of trust and confidence which, in the words justice Benjamin Nathan Cardozo (1870-1938; US Supreme court judge from 1932 to 1938) is "something more than the ordinary honor of the
marketplace.
Let's see, the Carrier hires the firm that hires the I/A. The Carrier pays the firm on a fee schedule that then pays the I/A on a lesser fee scale. The Carrier, has in-house adjusters that review the I/A's work absent any contact w/ the H/O.
Does this not clearly place the I/A in a fiduciary relationship w/ the Carrier leaving the H/O to fend for himself? For lack of better words, and because I am frustrated with the complete bullshit by our Senators, first with teachers (FCAT) and with P/A's; I think the Judge doesn't know his elbow from his ass.