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Maine's "36-hour rule", which is associated with the constitution Property insurance coverage law Blog



One of the strongest tools in an insured's arsenal is a good public adjustment. If it is fortunate, most will only insure a property loss once or twice over a lifetime. Failure to manage responsibilities daily can navigate the claim process not only be confusing and boring but also expensive if the insured does not know when they are treated unfairly.

Some states have laws in place that limit when licensed public adjustments may contact an insured with a potential need for public adjustment services. Termed "solicitation", Maine's 36-hour rule in the insurance code provided:

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. Solicitation. An adjuster attempting to provide adjustment services to an insured for a fee to be paid by the insured may not request or offer an adaptation service contract to any person for at least 36 hours after an accident or incident as a result of which the person may have a potential claim

National Fire Adjustment Company, Inc. ("NFA") provides licensed public adjustment services in Maine. NFA sued sovereign in the Maine Insurance Bureau, claiming that the rule violated the first amendment of the US Constitution. The NFA argued that the rule was "a content and speech-based limitation of speech" that was "presumably unconstitutional point of view discrimination". Alternatively, it was stated that the rule introduced burdens that did not advance the state's interests or attained its expressed interest, as it swept more widely than necessary. It was argued that the conformity of the public adjustments with the rule meant that NFA's public adjusters were continuously losing their business. (As a public adjuster working in a state with similar restrictions, only knowing to stop public adjustments that follow the rule, those who are unlicensed or unscrupulous will often jump in, regardless of the rule).

The federal court in its decision applied the "interlining test" which first determines whether the expression is protected speech by the first amendment (for commercial speech it must be legal activity and not be misleading) Then it looks at whether the state interest is "essential" . and if yes to both, it must be determined whether the regulation directly highlights the government's interest and whether it is more comprehensive than necessary to serve that interest.

The court ruled that the rule's "call to action" ban was "far superior" and acted as "a powerful deterrent to even education activity within the 36-hour window", and that the prohibition of any call to action, temporarily as it was, was "too paternalistic" advance provision in speech "and, as such, swept wider than necessary to serve the state's stated interests. The case is National Fire Adjustment Co., Inc. v. Cioppa No. 1: 18-cv-00008 (D. Me. Jan. 8, 2019).


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