Yesterday, the Florida Supreme Court heard oral arguments in Jeffery H. Atwater v. Frederick W. Kortum. Our prior posts detailed this case as it made its way through trial and the First District Court of Appeals. But if you are not yet acquainted with the case, the “48 hour rule” restricted public adjusters from soliciting insureds for 48 hours after a loss. Fred Kortum argued the ban violated his commercial free speech under Article I, § 4, of the Florida Constitution. The Supreme Court heard from both sides.
Attorney Michael Davidson represented Florida’s CFO, Jeff Atwater, who now stands in the shoes of Alex Sink in this case. Public Adjuster Kortum was represented by Wilbur Brewton.
When the video of the oral arguments becomes available, we will update the post, but until then, here are some interesting quotes from the proceedings provided by Janet Zink of the St. Petersburg Times Tallahassee Bureau.
“The problem you have here is ‘initiate contact’ seems to be rather broad. I don’t understand your argument, that it doesn’t encompass these written communications,” said Chief Justice Charles Canady. “I’m missing your point.”
When Davidson tried to explain the intent of the statute, Justice Canady and Justice Pariente expressed frustration with the way the law was written.
“That’s great you didn’t mean it, but we’ve got to deal with what’s said,” Pariente said. “It’s the ‘initiate contact.’ That’s to me the problem.”
She questioned the motivation for the legislation, noting that some people who hired adjusters to help with their hurricane claims received 750 percent more on claims than those who didn’t.
“It seems to me it’s the insurance industry saying we don’t want adjusters there because we want to do our thing,” Pariente said.
Wilbur Brewton, the attorney for Kortum, seized on Pariente’s remark.
“It’s insurance companies that are the issue,” he said.
The first 48 hours after a disaster, such as a fire or hurricane, are critical because cleanup attempts can affect claims.
“It’s hard to understand the rules,” he said. “Those are the most important times for a policyholder to have the service of a public adjuster. We’re not bad guys.”
Commercial speech, whether it’s face to face, on the phone or through a written document, is protected by the First Amendment, he argued.
Davidson countered that laws limiting solicitation by attorneys, who are schooled in the art of persuasion, have stood up to constitutional questions.
“The only difference between a lawyer and adjuster is the lawyer has no fee cap. The public adjuster does,” he said.
Pariente responded: “Then we ought to encourage them. I’m going to get one next time. It does sound like they are doing a very important service.”
And yes, you read that right, the Honorable Justice Pariente gave kudos to public adjusters and said she would hire a public adjuster the next time she has a claim.
The data referenced in the case about the 750% increase in claim payments originates from the OPPAGA report. To learn more about OPPAGA report, check out my post, Public Adjusters and Sinkhole Claims, or read the report in its entirety here.
Rest assured, as soon as a decision is issued in this case, we will provide the opinion.
