As a Merlin Law Group Texas attorney, I have the distinct privilege of working directly with Rene Sigman, the Regional Litigation Manager running the firm’s Texas operation. As a mentor, Rene has gone above and beyond to show me the complex ropes for handling first-party property insurance cases in Texas. Rene’s unparalleled work ethic coupled with her passion for our clients’ best interest was more than apparent recently when we recovered multiple favorable settlements for commercial and residential policyholders. During this time, we noticed something interesting about one of the insured’s contracts with her public adjuster. The contract was incomplete and did not comply with the Texas Administrative Code, which governs public insurance adjuster contracts.
Public adjusters in Texas must first enter into a written contract executed by the insured or insured’s duly authorized representative before directly or indirectly acting as a public adjuster in this state. In other words, you cannot act as a public adjuster until there is an executed written contract between you and the insured. If not using the Texas Department of Insurance’s standard FIN 535 contract for public adjusters, then this is a good time for Texas public adjusters to look over their written contracts and make sure they comply with the code, especially with hurricane season here.
Requirements for Texas Public Insurance Adjuster Contracts
Below are the thirteen general requirements for a public adjuster’s written contract with an insured.
1. the name, address, and license number of the public insurance adjuster negotiating the contract and, if applicable, the name, address, and license number of the public insurance adjuster’s employing public insurance adjuster, with each page of the contract prominently displaying the license number(s);
2. the public insurance adjuster’s telephone and fax number, including area code;
3. the mailing and physical addresses to which notice of cancellation and all communications to the public insurance adjuster may be delivered;
4. if any part of the contract or solicitation is made via the Internet, the email and website address to which notice of contract cancellation and all communications to the public insurance adjuster may be delivered;
5. the date and time the contract was signed;
6. for each nonresident public insurance adjuster named in the contract, the name and address of the nonresident public insurance adjuster’s agent for service of process;
7. the following separate statements in 12-point bold type on the signature page of the contract:
a. “NOTICE: THE INSURED MAY CANCEL THIS CONTRACT BY WRITTEN NOTICE TO THE PUBLIC INSURANCE ADJUSTER WITHIN 72 HOURS OF SIGNATURE FOR ANY REASON.”;
b. “WE REPRESENT THE INSURED ONLY.”; and
c. “YOU ARE ENTERING INTO A SERVICE CONTRACT. YOU ARE BEING CHARGED A FEE FOR THIS SERVICE. YOU DO NOT HAVE TO ENTER INTO THIS CONTRACT TO MAKE A CLAIM FOR LOSS OR DAMAGE ON A POLICY OF INSURANCE.”;
8. the statement: “If the insurance carrier pays or commits in writing to pay to the insured the policy limits of the insurance policy under Insurance Code Article 6.13 or §862.053 within 72 hours of the loss being reported to the insurer, the public insurance adjuster is not entitled to compensation based on a percentage of the insurance settlement, but is entitled to reasonable compensation for the public insurance adjuster’s time and expenses provided to the insured before the claim was paid or the written commitment to pay was received.”;
9. the statement: “NOTICE: A public insurance adjuster may not participate directly or indirectly in the reconstruction, repair, or restoration of damaged property that is the subject of a claim adjusted by the public insurance adjuster or engage in any other activities that may reasonably be construed as presenting a conflict of interest, including soliciting or accepting any remuneration from, or having a financial interest in, any salvage firm, repair firm, or other firm that obtains business in connection with any claim the public insurance adjuster has a contract or agreement to adjust.”;
10. on the first or second page of the contract, the following English and Spanish notices in 10-point bold type:
a. “IMPORTANT NOTICE: You may contact the Texas Department of Insurance to get information about public insurance adjusters, your rights as a consumer, or information about how to file a complaint by calling 1-800-252-3439; or you may write the Texas Department of Insurance, at PO Box 149104, Austin, Texas 78714-9104, or contact the department via Fax 512-475-1771.”;
b. “ADVISO IMPORTANTE: Puede communicarse con el Departamento de Seguros de Texas para obtener informacion acera ajustadores publicos de seguros, sus derechos como consumidor, o informacion sobre como presenter una queja llamando 1-800-252-3439; o puede escribir al Departamento de Seguros de Texas, en PO Box 149104, Austin, Texas 78714-9104, o comuniquese con el departamento a traves de Fax 512-475-1771.”;
11. a statement that under any method of compensation, the total commission payable to the public insurance adjuster, including expenses, direct costs, or any other costs accrued by the public insurance adjuster, must not exceed 10 percent of the amount of the insurance settlement;
12. if applicable, a statement disclosing how payments issued prior to the effective date of the contract will be used in determining compensation to the public insurance adjuster; and
13. a clear and prominent statement of the public insurance adjuster’s commission including:
a. the method of calculating the commission for the public insurance adjuster, whether an hourly rate, flat fee, percentage of settlement, or another method of compensation, specifically:
i. if an hourly rate, the contract must state the hourly rate and how it will be applied to hours of service provided by the public insurance adjuster to calculate the amount payable;
ii. if a flat fee, the contract must state the amount that will be payable to the public insurance adjuster;
iii. if a percentage, the contract must state the exact percentage that will be applied to the settlement on the claim to calculate the amount payable to the public insurance adjuster; or
iv. if another method of calculation is chosen, the contract must include a detailed explanation of how the amount payable will be determined based on services provided by the public insurance adjuster;
b. a general description of services the public insurance adjuster will provide under the contract;
c. a description of the claim and property damage, location, and event date;
d. if based on an hourly rate, a provision that the public insurance adjuster will provide an invoice for services that includes a detailed listing of services provided and separate costs payable to the public insurance adjuster as part of the commission based on the claim settlement, including expenses, direct costs, and any other accrued costs.