Posted on July 6, 2012 by Chip Merlin
Public Adjusters Win Free Speech Rights and Ability to Promptly Help Policyholders
Public adjusters that are retained promptly after a loss can often be far more helpful than being retained long thereafter. Policyholders usually need professional and practical assistance as soon as a loss occurs. If public adjusters are going to be retained soon after a loss, they need to be able to freely explain how their services can aid policyholders.
Yesterday, the Florida Supreme Court recognized the important free speech rights of public adjusters in Atwater v. Kortum.1 There, the Court upheld a lower Florida Appellate Court and ruled that the Florida Legislature passed an unconstitutional law that prohibited public adjusters from any form of solicitation within 48 hours after a loss. The conclusion of the Court says it all:
…a public adjuster‘s act of contacting or soliciting a potential customer is necessarily expressive. The purpose and intent of the public adjuster‘s act of contacting the claimant is to inform the potential client of the services offered by public adjusters and to obtain the customer‘s consent to a contract. There is no reason for a public adjuster—in his capacity as a public adjuster—to contact a claimant but to engage in communication about the commercial transaction of public adjusting.
Because section 626.854(6) regulates commercial speech—not merely conduct—the First District was correct in applying the test…to evaluate the constitutionality of the statute. The Department has failed to present any argument showing that the First District erred in concluding that the challenged restriction is more extensive than necessary to serve the State‘s interests.
… As explained above, the plain language of section 626.854(6), Florida Statutes (2008), prohibits all public adjuster-initiated contact with potential claimants during the forty-eight-hour period following a claim-producing event. Because this statute regulates commercial speech, the First District did not err…. In Public Adjusters Win Appeal Regarding Solicitation Ban, I noted that the insurance industry, including those running Citizens Property Insurance Corporation, was responsible for this unlawful legislation:
A basic problem with the ban was that at the most important time an insured could best use a public adjuster’s service, public adjusters could not solicit for business. Keeping the public adjuster from being engaged at this critical time was the object of this insurance industry sponsored law. A win for the good guys and a loss for those interested in underpaying claims. Justice prevails this time.
Have a fantastic summer weekend!