HOUSE BILL NO. 280
AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO THE LICENSING OF PUBLIC ADJUSTERS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :
Section 1. Amend Title 18 of the Delaware Code by adding thereto a new chapter to read as follows:
"Chapter 17A LICENSING OF PUBLIC ADJUSTERS:
§ 1750. Definitions.
For the purposes of §§ 1750 through 1761 of this Chapter, the following terms have the meanings indicated.
(a) 'Adjuster' means an adjuster as defined in Title 18 Delaware Code, Chapter 17 § 1702(a).
(b) 'License' means a license issued by the Commissioner to act as a public insurance adjuster.
(c) 'Licensee' means any person licensed in the state of Delaware to do business as a public insurance adjuster.
(d) 'Public adjuster' shall include any person who, for compensation or any other thing of value:
(1) Acts or aids, solely in relation to first party claims arising under insurance contracts that insure the real or personal property of the insured, on behalf of an insured individual in negotiating for, or effecting the settlement of, a claim for loss or damage covered by an insurance contract;
(2) Advertises for employment as an adjuster of insurance claims or solicits business or represents himself or herself to the public as an adjuster of first party insurance claims for losses or damages arising out of policies of insurance that insure real or personal property; or
(3) Directly or indirectly solicits business, investigates or adjusts losses, or advises an insured about first party claims for losses or damages arising out of policies of insurance that insure real or personal property for another person engaged in the business of adjusting losses or damages covered by an insurance policy.
§ 1751. License Requirement.
(a) No person shall, directly or indirectly, act as a public adjuster without first procuring a license from the Commissioner to act as a public insurance adjuster.
(b) The Commissioner shall issue a license to an applicant for a public adjuster's license who: (1) Has paid the applicable fee, which shall be the same as that for an adjuster's license; (2) Passes a written examination for which a fee may be charged, in accordance with regulations issued pursuant to this chapter; and (3) Has sufficient experience, training, and instruction concerning the adjusting of first party claims for damages or losses under insurance contracts that insure the real or personal property of the insured, as determined by the Commissioner in accordance with regulations issued pursuant to this chapter.
(c) The Commissioner may issue a license to any applicant without an examination if:
(1) The applicant holds a like license in good standing from another state and the public official having supervision of public insurance adjusters in the other state certifies that the applicant has passed a written examination; and
(2) The other state recognizes public insurance adjusters with public insurance adjuster licenses issued by the State of Delaware for the purpose of licensing the applicant without the requirement of an examination.
(d) A license issued pursuant to this section shall continue in force provided the licensee has completed continuing education requirements as established for adjusters and paid renewal fees as established for adjusters under Title 18 Delaware Code, unless suspended, revoked, or otherwise terminated prior thereto. Requests for renewal of the license shall be made to the Commissioner and accompanied by the license fee as established under Title 18 Delaware Code.
§ 1752. Bond Requirement.
(a) At the time of the application for license as a public adjuster, the applicant shall file with the Commissioner a bond executed and issued by a surety insurer authorized to transact business in the State of Delaware in the amount of $20,000, which bond shall serve the faithful performance of his or her duties as a public insurance adjuster. A public adjuster license shall automatically terminate when the bond is not in force.
(b) The bond shall have the following characteristics:
(1) The bond shall be in favor of the State of Delaware and shall specifically authorize recovery by the Commissioner of the damages sustained if the licensee is convicted of fraud or unfair practices in connection with his or her business as a public adjuster.
(2) The aggregate liability of the surety for all damages shall not exceed the amount of the bond.
(3) The bond shall not be terminated unless at least 30 days written notice is given to the licensee and filed with the Commissioner.
§ 1753. Ownership of other Entities.
(a) An applicant for a public adjuster's license shall disclose to the Commissioner the full name and residence of each person who directly or indirectly owns or controls the licensee, or holds with power to vote or holds proxies with the power to vote, 10 percent or more of the voting securities of the licensee.
(b) The Commissioner may deny an application or suspend or revoke the license of a public adjuster if any person who directly or indirectly owns or controls the licensee, or holds with power to vote or holds proxies with the power to vote, 10 percent or more of the voting securities of the licensee does not meet the qualifications for licensure under this chapter.
(c) Every applicant for an initial or renewal public adjuster's license shall file with the Commissioner a list of the full names of all employees who are authorized to negotiate claims settlements.
§ 1754. Maintenance of Records.
(a) A public adjuster shall maintain a complete record of each transaction as a public insurance adjuster. The records required by this section shall include at least the:
(1) Name of the insured;
(2) Date, location, and amount of the loss;
(3) Copy of the contract between the public insurance adjuster and insured;
(4) Name of the insurer, amount, expiration date, and number of each policy carried with respect to the loss;
(5) Itemized statement of the insured's recoveries; and
(6) Itemized statement of all compensation received by the public insurance adjuster, from any source whatsoever, in connection with a particular claim.
(b) Records shall be maintained for at least 5 years after the termination of the transaction with an insured and shall be open to examination by the Commissioner at all times.
(c) Records submitted in accordance with this section that contain proprietary information, identified in writing as such by the public insurance adjuster shall be treated as confidential by the Commissioner.
§ 1755. License denial, suspension, revocation, and refusal to renew; civil penalties.
(a) The Commissioner may deny a license to an applicant or suspend, revoke, or refuse to renew a license if the applicant or licensee:
(1) Violates the provisions of this chapter and any provision of the Delaware Unfair Trade Practices law or the Delaware Unfair Claims Settlement Practices Law or any standard of conduct prescribed by the Commissioner in regulations;
(2) Makes a material misstatement in the application for the license;
(3) Engages in fraudulent or dishonest practices;
(4) Demonstrates incompetence or untrustworthiness to act as a public insurance adjuster; or
(5) Fails to complete continuing education requirements.
(b) Upon a finding by the Commissioner of a violation of subsection (a) of this section, the Commissioner may impose a civil penalty not to exceed $1,000 for each violation.
(c) This chapter shall not be applied or interpreted to bar a borrower from bringing an action pursuant to any Delaware or federal law for damages, injunctive relief, or any other relief.
§ 1756. Contracts and solicitation of contracts.
(a) No licensee shall, directly or indirectly, act within the State of Delaware as a public adjuster without having first entered into a contract, in writing, on a form approved by the Commissioner and executed in duplicate by the public insurance adjuster and the insured or a duly authorized representative. One copy of the contract shall be kept on file by the licensee and be available at all times for inspection without notice by the Commissioner.
(b) (1) An insured who contracts for the services of a public adjuster shall have the right to cancel the contract until midnight on the 3rd business day after the day on which he or she signs the contract. Contracts that do not substantially conform to the requirements contained in this section shall be void. Cancellation of the contract shall be effective when mailed if the following conditions are met:
a. The cancellation shall be in writing, but need not take a particular form, and shall be sufficient if it indicates the intent of the person not to go forward with the representation.
b. The right to cancel shall be contained in the approved contract in a format designated by the Commissioner.
(2) The right of rescission contained in this subsection shall be in addition to, and not in limitation of, any other rights of the insured.
(3) In a commercial loss, if a contract is cancelled in accordance with this subsection, the public adjuster shall be entitled to reasonable compensation for actual services rendered and costs incurred between the time the contract was entered into and the time it was cancelled.
(c) A licensee shall not solicit, or attempt to solicit, a client for employment during the progress of a loss-producing occurrence, as defined in the client's insurance contract.
(d) A licensee shall not permit an unlicensed employee or agent in his or her own name to advertise, engage clients, furnish reports, or present bills to clients, or in any manner whatsoever to conduct business for which a license is required under this chapter.
(e) A licensee shall not charge the client a fee that exceeds 2.5% of the first $25,000 of the total insurance recovery of the client. A licensee may charge the client a fee of up to 12% of the amount of the total insurance recovery of the client that exceeds $25,000.
(f) A licensed public adjuster may not prevent or attempt to dissuade an insured from communicating with an insurer, the insurer's adjuster, an independent adjuster representing the insurer, an attorney, or any other person regarding the settlement of the insured's claim.
(g) A public adjuster shall be subject to the Delaware Unfair Claims Settlement Act.
§ 1757. Adjustments to comply with insurance contract and law.
A public insurance adjuster shall adjust or investigate every claim, damage, or loss made or occurring under an insurance contract for which the public insurance adjuster has been employed in accordance with the terms and conditions of his or her contract with the insured and the applicable laws and regulations of the State of Delaware.
§ 1758. Prohibited Acts.
(a) Notwithstanding any other grounds for disciplinary action provided for in this Chapter, the Commissioner may deny, revoke, suspend, refuse to renew, or impose a penalty on an applicant or licensee for violation of the prohibited acts set out in this section.
(b) A licensed public adjuster is prohibited from:
(1) paying any money or giving anything of value to any person in consideration of a direct or indirect referral of a client or potential client;
(2) paying any money or giving anything of value to any person in consideration as an inducement to refer business or clients;
(3) charging, collecting, or receiving any money or anything of value from any person providing services to an insured, either directly or on behalf of the public adjuster, in connection with the business of adjusting insurance claims, without the prior written disclosure of the fee or benefit to the insured;
(4) rebating to any client any part of a fee specified in the employment contract;
(5) splitting his or her fee or paying any money to any person for services rendered to a client unless such other person is also licensed as a public adjuster;
(6) having any interest directly or indirectly in any home improvement, restoration, construction, salvage, appraisal, loss mitigation, cleaning or environmental restoration business that conducts business in the State of Delaware;
(7) in connection with the licensee's conduct of his or her business as public adjuster, making any misrepresentation of facts or advising any person on any question of law;
(8) making false statements about any insurance company or its employees, agents, or representatives;
(9) soliciting the employment by a client in connection with any loss which is the subject of an employment contract involving the client and another public adjuster;
(10) representing both the insurer and the insured; or
(11) advancing any money to a client pending the settlement of a loss where such amount would be included in the final settlement.
(c) A violation of § 1758 shall be construed to be a violation of the applicable provisions of the Delaware Unfair Trade Practices Act and the Unfair Claims Settlement Practices Act and may constitute a violation of the Delaware Insurance Fraud Statute.
(d) A public adjuster shall also be subjected to the penalties applicable to licensees under Chapter 17, Title 18.
§ 1759. Regulations and Scope.
(a) The Commissioner shall promulgate rules and regulations as are necessary to carry out this chapter.
(b) This chapter shall not apply to:
(1) An adjuster for or an agent or employee of an insurer or group of insurers under common control or ownership that, as a representative of the insurer or group, adjusts losses or damages under policies issued by the insurer or group of insurers;
(2) An agent or broker that acts as an adjuster without compensation for an insured for whom the agent or broker is acting as an agent or broker;
(3) An attorney at law who does not: a. Regularly act as a public insurance adjuster; or b. Represent to the public by sign, advertisement, or other written or oral communication indicating that the attorney at law acts as a public insurance adjuster; or
(4) A licensed health care provider, or employee of a licensed health care provider, who prepares or files a health insurance claim form on behalf of a patient;
(5) Persons employed only for the purpose of obtaining facts surrounding a loss or furnishing technical assistance to a licensed adjuster, including but not limited to photographers, private investigators, engineers, and handwriting experts;
(6) Any agent or other person who negotiates and/or settles claims arising under life and health insurance policies;
(7) A person who performs clerical duties for or as an employee of an insurance company, but who does not participate in negotiations with parties on disputed and/or contested claims; or
(8) Any person who settles subrogation claims between authorized insurers.
§ 1760. Immunity.
There shall be no liability on the part of and no cause of action shall arise against, the Commissioner or the Insurance Department or its employees for any action taken by them in the performance of their powers and duties under this Act.
§ 1761. Severability Clause.
If any provision of this Act, or its application to any person or circumstance, is held invalid, that determination shall not affect the provisions or applications of this Act that can be given effect without the invalid provision or application, and to that end the provisions of this Act are severable."
Section 2. This Act shall take effect on the first day of the month immediately following its enactment.
Approved July 17, 2003