[CLC-Discussion] General Contractor License and Florida Public Adjuster License Question

[Ed Kinberg]

Good reply, Sean.



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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Sean A. Mickley
Sent: Wednesday, September 26, 2018 2:11 PM
To: alanhlubitzpa at bellsouth.net; clc-discussion at lists.flabarrpptl.org
Cc: 'James Baker' <jim at accmastercraftfl.com>; 'Scott Haft' <SrHaft at haftlawgroup.com>
Subject: Re: [CLC-Discussion] General Contractor License and Florida Public Adjuster License Question

Alan,

The final piece of that puzzle “communicate with the carrier’s adjuster to finalize the claim” is somewhat troubling as that is what a public adjuster is licensed to do.  With that said, however, Section 626.854(15) provides as follows:

(15) 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.

I think that a contractor can certainly submit the estimate of work to be provided, which can include overhead and profit.  The contractor can also discuss the bid/estimate with the insurer.  The contractor cannot take the next step of negotiating the amounts to be paid under the insurance policy.  Usually, when there is a coverage dispute, the contractor, as an assignee, will file a breach of contract suit, or engage an attorney to negotiate coverage.  This is because an attorney is exempted from public adjuster licensure requirements under Florida law.

Nevertheless, so long as the contractor did not perform work that would fall under public adjusting licensure, then the provision that may be deemed illegal may be stricken with the remaining portions intact.

But as Lee just mentioned, there is a case Gables I Townhomes v. Sunmark Restoration out of the 3d DCA that is a bit concerning regarding these types of contracts.  That case however is, in my opinion, an outlier.  It was entered in 1996 and not a single case cites to it since that time.  Additionally, there was no assignment of benefits in the Gables case, which makes it factually distinguishable in my opinion as an assignment of benefits provides the contractor all rights in the post-loss benefits and causes of action.  That is just my .02.

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of alanhlubitzpa at bellsouth.net<mailto:alanhlubitzpa at bellsouth.net>
Sent: Wednesday, September 26, 2018 1:51 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Cc: 'James Baker' <jim at accmastercraftfl.com<mailto:jim at accmastercraftfl.com>>; 'Scott Haft' <SrHaft at haftlawgroup.com<mailto:SrHaft at haftlawgroup.com>>
Subject: [CLC-Discussion] General Contractor License and Florida Public Adjuster License Question

Colleagues,

My firm represents a contractor that has been performing Hurricane Irene repairs to single family homes in South Florida. My client’s contract with the homeowner requires it to estimate the cost to repair the damage, transmit the estimate to the homeowner’s insurance carrier and communicate with the carrier’s adjuster to finalize the claim. The contract states that the contractor will accept the amount paid by the insurance company, plus the amount of the insurance deductible paid by the homeowner, as full compensation for the repairs.

The homeowner wrongfully terminated the contract, and my client filed suit. One of the affirmative defenses to the claim is that the contract is illegal because the contractor is not licensed as a Florida public adjuster. My client insists that this affirmative defense has no merit. Does anyone have a case or ruling that supports my client’s position?

I look forward to your responses.

Alan
Alan H. Lubitz, Esq.
Law Office of Alan H. Lubitz, P. A.
101 Plaza Real South
Suite 401
Boca Raton, FL 33432
Phone: 561-368-4404
Cell: 305-742-6556
alanhlubitzpa at bellsouth.net<mailto:alanhlubitzpa at bellsouth.net>

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