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Florida Supreme Court hears arguments in public adjuster case

TALLAHASSEE — The fate of a state law restricting the ability of public adjusters to contact property owners after a disaster is in the hands of the Florida Supreme Court after oral arguments Friday.

Michael Davidson, representing the state, told justices the law simply prohibits face-to-face contact or phone calls to potential clients by public adjusters for 48 hours after a catastrophe.

The adjusters, who help insurance policyholders file claims, still can distribute written materials, so their free speech rights remain intact, he said. A total ban on communication, he agreed, would be a constitutional violation.

Justices, though, seemed skeptical, keying on a part of the legislation that says public adjusters cannot "initiate contact" with potential clients for 48 hours.

"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."

The 2008 suit by Frederick Kortum, a public adjuster from Oviedo, was rejected by a trial court, but the First District Court of Appeal overturned that ruling, saying the law is unconstitutional because it violates free speech rights.

Chief Financial Officer Jeff Atwater appealed to the high court.

Canady and Justice Barbara Pariente both expressed frustration with the way the law was written when Davidson tried to explain the intent of the statute.

"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 some of the reasoning seemed to be that people with hurricane claims who used adjusters get 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."

Janet Zink can be reached at jzink@sptimes.com or (850) 224-7263.

Florida Supreme Court hears arguments in public adjuster case 09/09/11 [Last modified: Friday, September 9, 2011 10:46pm]
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