OGC Opinion No. 11-08-03

The Office of General Counsel issued the following opinion on August 5, 2011, representing the position of the New York State Insurance Department.

Re: Acting as a Public Adjuster Without a License

Questions Presented:

1. Must a person be licensed as a public adjuster to appear in court and negotiate a settlement on behalf of a personal injury plaintiff?

2. What are the consequences of acting as a public adjuster without a license?

Conclusions:

1. No. A person need not be licensed as a public adjuster to appear in court and negotiate a settlement on behalf of a personal injury plaintiff, because N.Y. Ins. Law § 2101(g)(2) (McKinney Supp. 2011) only requires a person to be licensed as a public adjuster if, for compensation, he or she is negotiating or effectuating the settlement of a claim for loss or damage to an insured’s property on behalf of the insured. However, any person who adjusts claims outside the scope of Insurance Law § 2101(g) may be practicing law without a license.

2. Pursuant to Insurance Law §§ 109(a) and 2102(g), acting as a public adjuster without a license is a misdemeanor and also carries a penalty of up to $500 for each transaction.

Facts:

The inquiry is of a general nature, without reference to particular facts.

Analysis:

1. Negotiating a Settlement in Court as a Public Adjuster without a License

The inquirer first asks whether a person must be licensed as a public adjuster to appear in court and negotiate a settlement on behalf of a personal injury plaintiff. Insurance Law § 2102(a)(1) prohibits any person, firm, association, or corporation from acting as an insurance adjuster in New York without being licensed by the Department. Insurance Law § 2101(g) provides that “adjuster” means either an independent adjuster or a public adjuster. Insurance Law § 2108(a)(3) prohibits an adjuster from acting on behalf of an insured unless licensed as a public adjuster. Insurance Law § 2101(g)(2) defines “public adjuster” in relevant part as:

any person, firm, association or corporation who, or which, for money, commission or any other thing of value, acts or aids in any manner on behalf of an insured in negotiating for, or effecting, the settlement of a claim or claims for loss or damage to property of the insured in this state caused by, or resulting from, any of the risks as enumerated in paragraphs four, five, six, seven, eight, nine and ten and subparagraphs (B) and (C) of paragraph twenty of subsection (a) of section one thousand one hundred thirteen of this chapter, not including loss or damage to persons under subparagraph (B) of paragraph twenty of subsection (a) of such section or who, or which, advertises for, or solicits employment as an adjuster of such claims, and shall also include any person who, for money, commission or any other thing of value, solicits, investigates, or adjusts such claims on behalf of any such public adjuster…. ¹

Thus, a person generally must be licensed as a public adjuster if, for compensation, the person negotiates or effectuates the settlement of a claim for loss or damage to an insured’s property on behalf of the insured. Here, the person is not negotiating or effectuating the settlement of a claim for loss or damage to property. Rather, the person appears to be negotiating or effectuating the settlement of a bodily injury claim. Therefore, a public adjuster license is not required.

However, any individual who adjusts claims outside the scope of the statute may well be practicing law without a license. See OGC Opinion No. 04-06-08 (June 9, 2004); OGC Opinion No. 96-55 (NILS) (Sept. 10, 1996); See also Gross v. Reliance Ins. Co. of N.Y., 119 Misc.2d 270, 271-72 (Sup. Ct. Kings Co. 1983) (stating that negotiation, adjustment, and collection of claims or demands based upon an insurance loss constitutes the practice of law and, but for certain exceptions authorized by statute, should be conducted by attorneys at law and if not, would constitute the unlawful practice of law). Thus, any person who adjusts claims outside the scope of Insurance Law § 2101(g) may be practicing law without a license.

Please note that this opinion is limited to an interpretation of the Insurance Law.

2. Consequences of Acting as a Public Adjuster without a License

The inquirer next asks about the consequences of acting as a public adjuster without a license.

Insurance Law § 2102(g) is relevant to your inquiry, and states that “[a]ny person, firm, association or corporation who or that violates this section shall be subject to a penalty not to exceed five hundred dollars for each transaction….” Therefore, the consequences of acting as a public adjuster, as defined in Insurance Law § 2101(g)(2), without a license would be a penalty imposed on the person of up to $500 for each transaction. Furthermore, Insurance Law § 109(a) provides that “[e]very violation of any provision of this chapter shall, unless the same constitutes a felony, be a misdemeanor.” Thus, acting as a public adjuster without a license also is a misdemeanor.

For further information, you may contact Senior Attorney Joana Lucashuk at the New York City Office.

¹ Section 2101(g)(2) sets forth certain exceptions, none of which are relevant to this inquiry.