Review Reposition Recapture™
Minneapolis, Minnesota USA
Panama City/Panama City Beach/Mexico Beach area residents need your help
the ask...a one year moratorium on the Unlicensed Practice of Public Adjusting (UPPA) law in the Florida Panhandle
read below to learn more
Unpacking the UPPA Conundrum – from Vision to Wisdom
Presented by Larry Burtis 2 23 19 @ WTS - Las Vegas, NV - excerpted
One of the biggest financial scams ever perpetrated against the American insurance buying public; UPPA, the 'Unlicensed Practice of Public Adjusting'.
No one’s quite sure where they end up but the problem is, even though they come and they go, there is always a new batch of progressive 'visionaries' taking their place and getting into everybody’s business, the latest thinking they know more and can do better than the previous and causing all kinds of chaos as they’ve done with the implementation of UPPA laws across the country beginning about eight years ago.
Minnesota contractors were first introduced to the UPPA concept in 2010 when then soon to be retired Minnesota Commerce commissioner, contributor to the 2008 housing market crash and friend of P&C insurance, Glenn Wilson, Jr. issued his Bulletin 2010-4 that became the impetus behind 'No negotiating/PA’s only/UPPA' legislation in Minnesota that would match, nearly word for word, similar state by state legislation then being considered on a nationwide basis. Written by the P&C insurance industry and pushed through to mostly ill informed state legislators by American Legislative Exchange Council funded state legislator members, and passed - for the benefit of the P&C insurance industry, UPPA laws have hurt and continue to hurt contractors and their insured property owner customers in a big way all across the country.
P&C insurance companies and their minions repeatedly and falsely claim and complain that professional contractors who know better than anyone how much it really costs to repair storm or other insurance covered property damage, know what needs to be repaired, and charge accordingly at real, true and accurate free market pricing, 'costs', at least according to the P&C insurance industry, millions of dollars every year in over charges.
They figured that, if they could get legislation passed into law that prohibits contractors from negotiating on behalf of property owners with damage they would be many millions of dollars ahead, each and every year. Such thinking did, of course, fully disregard the fact that their insured customers would be left unfairly underpaid those same many millions of dollars legitimately owed to them by their insurance companies. But, in order to achieve their goal, they needed a ruse with which to conceal their true intent, and they needed a figure head who would ceaselessly promote the ruse
For years prior to the UPPA push the American Bar Association had been fighting with public adjusters trying to prevent them from negotiating on behalf of property owners with insurance covered damage, calling what public adjusters did, an unauthorized practice of law or UPL. With UPPA beginning to appear on the horizon back in 2010 and the ABA losing interest in fighting with the PA industry over the UPL charges around the same time, the PA lobby, seeing what they thought was a financial opportunity ripe for picking, decided to go on the offense against contractors.
In March of 2011, attorney, theatre manager and National Association of Public Insurance Adjuster (NAPIA) founder’s grandson Brian S. Goodman said this: 'Interestingly, and paradoxically, we are now finding that while we no longer have to fight the issue of the unauthorized practice of law, we have to take the offensive and fight the ‘unauthorized practice of public adjusting’, as, in this down economy, we are finding that roofers and general contractors (or 'ruthless, unlicensed individuals' as Goodman once referred to all them/you) in the United States are advertising their services, ‘essentially’ as public adjusters.' Goodman, who is, for all intents and purposes, the PA lobby as well as the primary figurehead behind the UPPA ruse, is the same guy who, along with Zelle, LLP managing partner Steve Badger and other like minded friends of P&C insurance, are now pushing for nationwide legislation that would go so far as to charge contractors with a felony for violating UPPA (i.e., not being 'nice' see "The Houghtaling/Badger UPPA debate @ WTS in Las Vegas - 2019" )
Although Badger’s UPPA arguments for such nonsense, much like those put forth by Goodman, are often, IMO, specious as well as incongruent and, therefore, easily defeated, it’s easy enough to understand why Badger so zealously defends the often questionable interests of the P&C insurance industry. As is the case with 3rd party insurance adjusting and engineering firms, the P&C insurance industry is the primary source of his income. That not being the case with Goodman, who, first and foremost, as NAPIA counsel, lobbyist and legatee, has a legacy to protect, I find the unholy alliance formed between the two seemingly opposing parties to be quite interesting as well as deserving of scrutiny, for reasons that should soon become self evident.
By way of the UPPA ruse, a classic divide and conquer strategy designed to keep contractors and public adjusters fighting each other instead of fighting them, P&C insurance sought to and has succeeded in causing tension amongst the parties they saw as hindering their progression towards their ultimate goal of increased profits and total market control. Who is the “us”, the parties? Contractors, appraisers, PA’s and insured’s plaintiffs attorneys. First step in their strategy, push for legislation that would prohibit contractors from negotiating on behalf of their insured customers as they had successfully done for decades.
Then, believing they’ve gotten contractors out of the way, cause PA’s who should always be looking to and valuing contractors as a primary source of referral business to instead, view contractors as obstructionists who need to be reminded that assisting insured's in achieving full settlement on their claims is the purview of those who are, at least according to the PA lobby propaganda, more qualified for the task. Biting the hand that feeds them, I would say. BTW, as I warned several years ago, P&C insurance, confident they had gotten contractors out of the way via UPPA, is now going after the public adjuster industry and insured plaintiffs side of the legal industry with the intention of placing restrictions on them as well.
Rather than falling for the ruse that has gotten all of us fighting over claims processing real estate, better we all come together as a group of us did last summer at the Nashville Summit where I believe we did lay a good foundation that will allow us to become a more cohesive group with the same focus, cutting down and exposing the P&C insurance industry giants and their accomplices rather than cutting down each other.
In January, I Face Book posted my thoughts on a public adjuster association meeting presentation given back in 2016 entitled: THE COSTS OF THE UNLICENSED PRACTICE OF PUBLIC ADJUSTING: A LEGAL AND ECONOMIC ANALYSIS by Robert C. Baker III. If you have not yet read the essay, I highly recommend you do so if you want to understand the UPPA conundrum from the PA lobby’s perspective. My analysis of Baker’s analysis; failingly discombobulated, subjective, biased and nonsensical claptrap arguments, that destroy themselves while attempting to support the essays premise
While the PA lobby – headed by Goodman, put their full support behind the UPPA wall, they didn’t build it. So, who did? Starting in 2010 around the time of Minnesota’s initial attempt to pass UPPA, I spent many hours doing research in the hopes of uncovering the ultimate true source of UPPA. The results of my research? Based on the appearance of the names of State Farm Insurance general counsels Emory Wilkerson and Roland Spies showing up in support of various states template UPPA bills, I concluded that the primary designer and builder behind the UPPA wall was most likely, along with an assist from the National Association of Insurance Commissioners, friend of and high dollar contributor to the American Legislative Exchange Council, good old State Farm insurance.
So, who is the American Legislative Exchange Council or ALEC? With more than 2,000 members, ALEC is the nation’s largest, individual public-private membership association of corporations, their lobbyists and funded state legislators whose (supposed) mission is a commitment to limited government and free markets. Funded almost entirely by large corporations – State Farm being one of their biggest financial contributors, as shown in the video below, ALEC introduces corporation written, lobbyist promoted model legislation favorable to certain industries that funded state legislators who are also ALEC members are given to introduce in their home states as their own bills.
The funded ALEC member state legislators, who are wined and dined by the ALEC corporate lobbyists, often at exclusive resorts, then present the legislation to specific legislative committee members in their home states, in the case of UPPA, legislators typically employed by or connected to the P&C insurance industry, who then sign on as House and Senate Chief or co-Authors.
They then sell the bills, in this case UPPA, to their ill informed fellow legislators as consumer protection who then, with the next election cycle always in mind, vote in favor of the legislation. Supported by the self interests of the people mentioned, UPPA, often hidden deep within Omnibus garbage bills, then gets signed into law by ill-informed or misguided state Governors who have either also fallen for the consumer protection ruse, or simply didn’t bother to read the bills...to find what was in them.
Through the process just described, UPPA has indeed, become the law of the land. But, is it good law, or is it bad law? Good law protects society, bad law does not. Laws against speeding, DWI, and insurance claim funds theft, for example, are good laws that protect society. Good law also protects the historically accepted ways and means by which honest people operating in a free market society earn their income. Pre-UPPA, the historically accepted ways and means by which honest storm damage contractors operating in a free market society earned their income was as straight forward as it was effective, inspect, estimate, contract and negotiate the cost of the repairs at free market pricing relative to the premiums paid, then complete the repairs.
Law that does not protect the historically accepted ways and means by which honest people operating in a free market society earn their income, in this case, storm damage contractors, but instead, usurps then transfers the ways and means to others more favored, is bad law. It is also, among other things, anti-American NGO central planning forced market rather than free market. The others more favored, in this case, are public adjusters, but only to the extent that they are useful to the P&C insurance industry as a means to an end, which is vastly increased P&C insurance company profits. That is, as I see it, the essence of UPPA.
From the Baker essay I mentioned earlier; 'the common sense value of public adjusting is historically unassailable, insurance companies did not become one of the most regulated industries in America by altruistically having their customers’ best interests at heart.' In other words, according to Baker, insured’s need public adjusters on their side because their insurance companies can’t be trusted to put their insured’s interests ahead of their own. Doubtful that any of us here today would disagree with the insurance companies can’t be trusted implication, or the common sense value of public adjusting. That common sense value of public adjusting however, is only realized if and when a PA is brought in on a storm damage claim – which is, typically, long after a the claim would have been settled Pre-UPPA.
And, because PA’s will generally pass on the typical $30k and under wind and hail storm damage claims, no common sense value of public adjusting can be or is ever realized or achieved on those claims. And, since UPPA prohibits contractors from negotiating and advocating on behalf of their insured customers, those $30k and under insured customers only other options, often months beyond when the claim should have settled, are to trust their insurance companies to do what Baker and Goodman both imply they cannot be trusted to do – fairly and fully pay their insured’s claims, or, hire and pay an appraiser or attorney to move the claim forward to full and final payment, or, simply demand that their contractor complete the repairs at an insurance companies low ball offer, which then, poses various other problems. These delays then allow P&C insurance to, as intended, continue to earn millions of dollars in interest on their reserves and save millions of dollars more on claims that are under or never paid when insureds simply give up the fight.
Let’s unpack Baker’s the insurance companies can’t be trusted implication. Steve Badger represents and defends the P&C insurance industry that Baker implied cannot be trusted. Brian Goodman represents the public adjusting industry that Baker as well as Goodman say protects insured’s from insurance companies Baker implied cannot be trusted. Although seemingly from opposing camps, the amicus curiae tag team of Badger and Goodman have and continue to broad brush paint storm damage contractors as mediocre or malicious claim payment stealing 'Chucks in a truck' who cannot be trusted to and therefore should be prohibited from negotiating their insured customers storm damage claims. Who does that then leave to do the negotiating? Public Adjusters, who, as mentioned previously, have little interest in those $30k and below insured property owner claims.
It is true that a small minority of contractors, as is the case with a small minority of people in any other profession, can’t be trusted. That being said, is it reasonable to penalize all people in any profession for the bad acts of the small minority. No, but that is what UPPA unfairly does to all contractors. Let’s further unpack several of Goodman’s, Badger’s and related friends of P&C insurance other, quite hypocritical arguments in support of UPPA, such as the following; 'The inherent conflict of interest in allowing an unlicensed and unregulated contractor performing the repair work to negotiate the final price that the insurance company will pay for its work is insidious and inescapable.' My response to such convoluted doublespeak? Since the honest insured’s interest is in getting paid for all of the damage, at pricing relative to the premiums paid and the honest contractor best serves his/her own financial interest by putting the insured’s financial interests as described, first, there can be no conflict of interest. If there is any conflict of interest, it is typically between the insured's who deserve to be fairly and fully paid on their claims and their insurance companies who will, in far too many cases, do everything they can to prevent that from happening.
And this, 'Allowing unlicensed contractors to act as intermediaries between the insured and an insurer would wreak havoc on the licensed and regulated public insurance adjuster profession.' In other words, in the minds of Goodman and Badger, contractors would take business and therefore income away from PA’s - business and income that, in fact and in reality, pre-UPPA, would never have gone to PA’s anyway. As previously mentioned, the great majority of wind and hail storm damage claims fall under the $30k mark and since most PA’s decline claims of that size, the 'would wreak havoc on the licensed and regulated public adjuster profession' claim falls flat.
And this from the Texas Department of Insurance, 'Public Policy' – meaning policy that best serves the interests of the public - Strongly Favors Strict Enforcement of Laws Like Section 4102.051 Prohibiting Contractors From Engaging In The Unlicensed Practice of Public Adjusting'. The true source of the alleged 'public' policy that 'strongly favors strict enforcement' of UPPA?
In 2011, then Texas Governor and ALEC member Rick Perry, reported recipient of several million dollars in campaign contributions from the American Legislative Exchange Council over time, appointed supposedly unbiased ex-insurance executive Eleanor Kitzman as insurance commissioner. Shortly after her appointment, even though State Farm Lloyds was under criminal investigation regarding their claims handling practices in Texas at the time, Kitzman approved an increase in their homeowners premiums of up to 20%.
June 26, 2012, Kitzman issues her 'public policy' Bulletin #B-0017-12, Texas’ template version of UPPA. Several months later, with the risk of Perry’s and Kitzman’s State Farm cronyism being fully exposed to the public, and with a no confidence vote from the Texas Senate regarding Kitzman’s controversial tenure, Perry knew he could not appoint her to a new term. Policy to protect the interests of the public? Certainly to protect the interests of the P&C insurance industry and keep those ALEC campaign contributions coming, but the public? Really, I think not.
With the curtain pulled back and the P&C insurance Wizard now exposed and with the ultimate source of UPPA and its true ultimate victims – insured property owners, now being revealed, the UPPA wall has begun to crack. Considering that, at least until UPPA is repealed, contractors still have to abide by UPPA, I’ve come up with what I believe is, under the present circumstances, a wisdom based solution to the UPPA conundrum that will prove to help the thousands of property owners so affected by the devastation caused by Hurricane Michael, to begin the process that will eventually allow them to move on with their lives.
The UPPA wall that has prevented contractors from offering any substantive help to those thousands of property owners affected by Hurricane Michael has indeed begun to crack as UPPA begins to be exposed for what it truly is, an unconstitutional violation of commercial free speech. Until it is defeated and relegated to the dustbin of history however, contractors are still required to abide by the law, regardless of how unjust it is and regardless of how much suffering affected policyholders will be forced to endure. The solution? A one year moratorium placed on UPPA that will allow construction contractors to offer the help that those property owners deserve without concern over outside interference. In passing such a moratorium, immediately, those suffering property owners will be able to begin the process of rebuilding of their properties and their lives. Those people desperately need your help. Are you willing to step up to the plate to stop the UPPA corruption and make it happen for them? Now is the time!
For questions or concerns or to learn more, feel free to contact me through the About-Contact page at this site.
Larry Burtis - President, 3RSystems, LLC
Professional Advocate Member
The American Policyholder Association (APA)
Disclaimer: Other than offering my experienced opinions as a matter of reference, I do not give accounting, tax, insurance, investment or legal advice. If you need such advice, I recommend that you consult with a licensed professional practicing in the area of your concern.
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