20 Fla. L. Weekly Supp. 429a
Online Reference: FLWSUPP 2004MONGInsurance — Property — Plaintiff-contractor which had an assignment of rights from insured for work performed by contractor was not acting as a public adjuster — Insurer’s emergency motion to abate action based on a consent order from state agency preventing plaintiffs from acting as a public adjuster is denied
UNITED WATER RESTORATION GROUP INC., a/a/o John Mongoni, et al., Plaintiff(s), vs. MODERN USA INSURANCE COMPANY, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2012 20789 CONS, Division 78. December 20, 2012. Shirley A. Green, Judge. Counsel: Michael Grossman, Winter Park, for Plaintiff. Kimberly Salmon, Tampa, for Defendant.
ORDER DENYINGDEFENDANT’S EMERGENCY MOTION TO ABATE
THIS CAUSE came on before the Court at hearing on December 6, 2012 on Defendant’s emergency motion to abate this action based on a consent Order from the Department of Financial Services, Division of Agents and Agency Services, State of Florida. The Consent Order was entered against Emergency Services 24, Inc. (hereinafter referred to as Emergency) preventing them from acting as a Public Adjuster. The Defendant argues that the Plaintiff and Emergency Services 24, Inc., are both water restorations companies and both engage in the same type of transactions. Defendant further argues that the actions of the Plaintiff can also then be termed public adjusting and they should be prevented from moving forward on this action until their business practices can be reviewed by the State of Florida and a determination made as to whether they are in violation of Fla. Stat. 626.854,
Florida Stat. 626.854 reads in part: 626.854 “Public adjuster” defined; prohibitions. — The Legislature finds that it is necessary for the protection of the public to regulate public insurance adjusters and to prevent the unauthorized practice of law. (1) A “public adjuster” is any person, except a duly licensed attorney at law as exempted under s. 626.860, who, for money, commission, or any other thing of value, prepares, completes, or files an insurance claim form for an insured or third-party claimant or who, for money, commission, or any other thing of value, acts on behalf of, or aids an insured or third-party claimant in negotiating for or effecting the settlement of a claim or claims for loss or damage covered by an insurance contract or who advertises for employment as an adjuster of such claims. The term also includes any person who, for money, commission, or any other thing of value, solicits, investigates, or adjusts such claims on behalf of a public adjuster.
The Consent Order tracks the language in the statute and forbids the Emergency from engaging in the activities that violates the statute. This case can be distinguished from Emergency because there is no evidence in the record that indicates that the Plaintiff engages in these prohibited activities. Additionally 626.854 (16); provides an exemption that applies to the Plaintiff’ in this case: (16) A licensed contractor under part I of chapter 489, or a subcontractor, may not adjust a claim on behalf of an insured unless licensed and compliant as a public adjuster under this chapter. However, the contractor may discuss or explain a bid for construction or repair of covered property with the residential property owner who has suffered loss or damage covered by a property insurance policy, or the insurer of such property, if the contractor is doing so for the usual and customary fees applicable to the work to be performed as stated in the contract between the contractor and the insured.
The Plaintiff in the instant case has an assignment of rights from the insured for work done by the Plaintiff. The Plaintiff correctly points out that the Consent Order never mentions the word assignment and, that the actions under an assignment can be distinguished from those of public adjusting. An assignment allows the service provider to seek recompense directly from the insurance company for services they perform. They step into the shoes of the insured. By contrast, a public adjuster seeks to represent the homeowner, not only in a claim for their specific services, but also represent the homeowner on claims not related to their service and they seek compensation from the homeowner for their assistance. The court agrees with this argument and therefore it is:
ORDERED AND ADJUDGED that the Emergency Motion to Abate is hereby denied.
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