82R8730 KCR-F
By: Taylor of Galveston H.B. No. 2818
A BILL TO BE ENTITLED
AN ACT
relating to the operation of the Texas Windstorm Insurance
Association and to the resolution of certain disputes concerning
claims made to that association.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 83.002, Insurance Code, is amended by
adding Subsection (c) to read as follows:
(c) This chapter also applies to:
(1) a person appointed as a qualified inspector under
Section 2210.254 or 2210.255; and
(2) a person acting as a qualified inspector under
Section 2210.254 or 2210.255 without being appointed as a qualified
inspector under either of those sections.
SECTION 2. Section 541.152, Insurance Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) Except as provided by Subsection (c), on [On] a finding
by the trier of fact that the defendant knowingly committed the act
complained of, the trier of fact may award an amount not to exceed
three times the amount of actual damages.
(c) Subsection (b) does not apply to an action under this
subchapter brought against the Texas Windstorm Insurance
Association by a person who is insured under Chapter 2210.
SECTION 3. Subchapter A, Chapter 2210, Insurance Code, is
amended by adding Section 2210.010 to read as follows:
Sec. 2210.010. EXPERT PANEL. (a) The commissioner shall
appoint a panel of experts to advise the commissioner concerning
the manner in which, following a storm, the association should
evaluate the extent to which a loss to insurable property was
incurred as a result of wind, waves, tidal surges, rising waters not
caused by waves or surges, and wind-driven rain associated with the
storm. The commissioner shall appoint one member of the panel to
serve as the presiding officer of the panel.
(b) To be a member of the panel, a person must have
professional expertise in, and be knowledgeable concerning, the
geography of the seacoast territory, the meteorological patterns
common in the seacoast territory, the scientific basis for
meteorological patterns in coastal areas, or the technology
necessary to evaluate the geography of, or meteorological patterns
common to, the seacoast territory.
(c) The panel shall meet at the call of the commissioner or
the call of the presiding officer of the panel.
(d) The panel shall collect and evaluate the data necessary
to perform the panel's general duties under Subsection (a).
(e) Immediately following a storm, for geographic areas or
regions designated by the commissioner, the panel shall recommend
to the commissioner standardized data necessary to evaluate the
extent to which a loss to insurable property was incurred as a
result of wind, waves, tidal surges, rising waters not caused by
waves or surges, and wind-driven rain associated with the storm,
including wind speed, total rainfall, and the extent of wave action
or tidal surges.
(f) After consideration of the recommendations made by the
panel under Subsection (e), the commissioner by rule shall adopt
standardized data as part of the formula that the association will
use to settle claims following the storm from which the
standardized data recommendations were derived.
SECTION 4. Section 2210.072(b), Insurance Code, is amended
to read as follows:
(b) Public securities described by Subsection (a) shall be
issued as necessary in a principal amount not to exceed $1 billion
per occurrence or series of occurrences in a calendar year that
results in insured losses.
SECTION 5. Section 2210.073(b), Insurance Code, is amended
to read as follows:
(b) Public securities described by Subsection (a) may be
issued as necessary in a principal amount not to exceed $1 billion
per occurrence or series of occurrences in a calendar year that
results in insured losses. If the losses are paid with public
securities described by this section, the public securities shall
be repaid in the manner prescribed by Subchapter M.
SECTION 6. Section 2210.074(b), Insurance Code, is amended
to read as follows:
(b) Public securities described by Subsection (a) may be
issued as necessary in a principal amount not to exceed $500 million
per occurrence or series of occurrences in a calendar year that
results in insured losses. If the losses are paid with public
securities described by this section, the public securities shall
be repaid in the manner prescribed by Subchapter M through member
assessments as provided by this section. The association shall
notify each member of the association of the amount of the member's
assessment under this section. The proportion of the losses
allocable to each insurer under this section shall be determined in
the manner used to determine each insurer's participation in the
association for the year under Section 2210.052. A member of the
association may not recoup an assessment paid under this subsection
through a premium surcharge or tax credit.
SECTION 7. Section 2210.105, Insurance Code, is amended by
amending Subsection (b) and adding Subsections (b-1), (e), and (f)
to read as follows:
(b) Except for a closed meeting authorized by Subchapter D,
Chapter 551, Government Code, a meeting of the board of directors or
of the members of the association is open to[:
[(1) the commissioner or the commissioner's designated
representative; and
[(2)] the public.
(b-1) A meeting of the board of directors or the members of
the association, including a closed meeting authorized by
Subchapter D, Chapter 551, Government Code, is open to the
commissioner or the commissioner's designated representative.
(e) The association shall:
(1) broadcast live on the association's Internet
website all meetings of the board of directors, other than closed
meetings; and
(2) maintain on the association's Internet website an
archive of meetings of the board of directors.
(f) A recording of a meeting must be maintained in the
archive required under Subsection (e) through and including the
second anniversary of the meeting.
SECTION 8. Subchapter C, Chapter 2210, Insurance Code, is
amended by adding Section 2210.108 to read as follows:
Sec. 2210.108. OPEN MEETINGS AND OPEN RECORDS. Except as
specifically provided by this chapter or another law, the
association is subject to Chapters 551 and 552, Government Code.
SECTION 9. Section 2210.152, Insurance Code, is amended by
adding Subsection (c) to read as follows:
(c) The plan of operation shall require the association to
use the standardized data recommendations adopted by the
commissioner under Section 2210.010(f) in evaluating the extent to
which a loss to insurable property is incurred as a result of wind,
waves, tidal surges, rising waters not caused by waves or surges, or
wind-driven rain associated with a storm.
SECTION 10. Section 2210.203, Insurance Code, is amended by
amending Subsection (a-1) and adding Subsection (a-2) to read as
follows:
(a-1) [This subsection applies only to a structure
constructed, altered, remodeled, or enlarged on or after September
1, 2009, and only for insurable property located in areas
designated by the commissioner.] Notwithstanding Subsection (a),
if all or any part of the property to which this subsection applies
is located in Zone V or another similar zone with an additional
hazard associated with storm waves, as defined by the National
Flood Insurance Program, [and if flood insurance under that federal
program is available,] the association may not issue an insurance
policy for initial or renewal coverage unless evidence is submitted
to the association that the property to be covered under the policy
is also covered by a flood insurance policy issued under the
National Flood Insurance Program. This subsection does not apply
to property for which flood insurance is not available under the
National Flood Insurance Program [is submitted to the association].
(a-2) An agent offering or selling a Texas windstorm and
hail insurance policy [in any area designated by the commissioner
under this subsection] shall offer flood insurance coverage
required under Subsection (a-1) to a [the] prospective insured, if
that coverage is available.
SECTION 11. Section 2210.204(e), Insurance Code, is amended
to read as follows:
(e) For cancellation of insurance coverage under this
section, the minimum retained premium in the plan of operation must
be for a period of not less than 90 [180] days, except for events
specified in the plan of operation that reflect a significant
change in the exposure or the policyholder concerning the insured
property, including:
(1) the purchase of similar coverage in the voluntary
market;
(2) sale of the property to an unrelated party;
(3) death of the policyholder; or
(4) total loss of the property.
SECTION 12. Subchapter E, Chapter 2210, Insurance Code, is
amended by adding Section 2210.205 to read as follows:
Sec. 2210.205. REQUIRED POLICY PROVISIONS: DEADLINE FOR
FILING CLAIM; NOTICE CONCERNING ARBITRATION. A windstorm and hail
insurance policy issued by the association must:
(1) require an insured to file a claim under the policy
not later than the first anniversary of the date on which the damage
or loss that is the basis of the claim occurs; and
(2) contain, in boldface type, a conspicuous notice
concerning the mandatory arbitration of certain coverage and claim
disputes under Section 2210.554 and the voluntary arbitration of
other coverage and claim disputes under Section 2210.555, including
the deadline for requesting an arbitration under those sections.
SECTION 13. Section 2210.254, Insurance Code, is amended by
adding Subsection (e) to read as follows:
(e) The department may establish an annual renewal period
for persons appointed as qualified inspectors.
SECTION 14. Subchapter F, Chapter 2210, Insurance Code, is
amended by adding Section 2210.2551 to read as follows:
Sec. 2210.2551. EXCLUSIVE ENFORCEMENT AUTHORITY; RULES.
(a) The department has exclusive authority over all matters
relating to the appointment and oversight of qualified inspectors
for purposes of this chapter.
(b) The commissioner by rule shall establish criteria to
ensure that a person seeking appointment as a qualified inspector
under this subchapter, including an engineer seeking appointment
under Section 2210.255, possesses the knowledge, understanding,
and professional competence to perform windstorm inspections under
this chapter and to comply with other requirements of this chapter.
SECTION 15. The heading to Section 2210.256, Insurance
Code, is amended to read as follows:
Sec. 2210.256. DISCIPLINARY PROCEEDINGS REGARDING
APPOINTED INSPECTORS AND CERTAIN OTHER PERSONS.
SECTION 16. Section 2210.256, Insurance Code, is amended by
adding Subsection (a-2) to read as follows:
(a-2) In addition to any other action authorized under this
section, the commissioner ex parte may enter an emergency cease and
desist order under Chapter 83 against a qualified inspector, or a
person acting as a qualified inspector, if:
(1) the commissioner believes that:
(A) the qualified inspector has:
(i) through submitting or failing to submit
to the department sealed plans, designs, calculations, or other
substantiating information, failed to demonstrate that a structure
or a portion of a structure subject to inspection meets the
requirements of this chapter and department rules; or
(ii) refused to comply with requirements
imposed under this chapter or department rules; or
(B) the person acting as a qualified inspector is
acting without appointment as a qualified inspector under Section
2210.254 or 2210.255; and
(2) the commissioner determines that the conduct
described by Subdivision (1) is fraudulent or hazardous or creates
an immediate danger to the public.
SECTION 17. Section 2210.258(b), Insurance Code, is amended
to read as follows:
(b) The association may not insure a structure described by
Subsection (a) until:
(1) the structure has been inspected for compliance
with the plan of operation in accordance with Section 2210.251(a);
and
(2) except as provided by Section 2210.260, a
certificate of compliance has been issued for the structure in
accordance with Section 2210.251(g).
SECTION 18. Subchapter F, Chapter 2210, Insurance Code, is
amended by adding Section 2210.260 to read as follows:
Sec. 2210.260. ALTERNATIVE ELIGIBILITY FOR COVERAGE. (a)
On and after September 1, 2011, a person who has an insurable
interest in insurable property may obtain insurance coverage
through the association for a residential structure without
obtaining a certificate of compliance under Section 2210.251(g) if:
(1) within the 12-month period preceding the date of
the application for coverage by the association, the structure was
insured on an annual basis under a residential property insurance
policy that included windstorm and hail coverage;
(2) the insurer that issued the coverage described by
Subdivision (1) has ceased to:
(A) provide windstorm and hail insurance under
the policy; or
(B) issue residential property insurance
policies in the portion of the catastrophe area in which the
structure is located; and
(3) the applicant for coverage:
(A) complies with:
(i) the flood insurance requirement of
Section 2210.203(a-1), if applicable;
(ii) the mandatory building code
requirement of Section 2210.258(a); and
(iii) all other association underwriting
requirements, including maintaining the structure in an insurable
condition and paying premiums in the manner required by the
association; and
(B) provides evidence of declination as required
by Section 2210.202(a).
(b) Coverage issued under this section may be renewed by the
association only once.
SECTION 19. Section 2210.355, Insurance Code, is amended by
amending Subsection (i) and adding Subsections (j), (k), and (l) to
read as follows:
(i) The association shall [may] establish rating
territories and shall [may] vary rates among the territories in
accordance with Subsections (j) and (k) [as provided by this
subsection. A rating territory that subdivides a county may be used
only if the rate for any subdivision in the county is not more than:
[(A) five percent higher than the rate used by
the association in 2009 in any other subdivision in the county;
[(B) six percent higher than the rate used by the
association in 2010 in any other subdivision in the county;
[(C) seven percent higher than the rate used by
the association in 2011 in any other subdivision in the county; and
[(D) eight percent higher than the rate used by
the association in 2012 in any other subdivision in the county].
(j) Notwithstanding Section 2210.351, the association may
use rate relativities for rating territories that subdivide a
county without prior commissioner approval if the resulting rate
for any subdivision in the county:
(1) is not more than 15 percent greater than the
resulting rate used in any other subdivision in that county for
identical coverage for insureds having risk characteristics that
are identical except for rating territory; and
(2) is not unfairly discriminatory.
(k) The association may use rate relativities for rating
territories that subdivide a county only with prior commissioner
approval if the resulting rate for any subdivision in the county is
not described by Subsection (j)(1).
(l) A rate relativity described by Subsection (k) must be
based on sound actuarial principles supported by data filed with
the department, including reasonable output from recognized
catastrophe models, and must produce rates that comply with the
statutory and regulatory requirements of this chapter.
SECTION 20. The heading to Subchapter H, Chapter 2210,
Insurance Code, is amended to read as follows:
SUBCHAPTER H. RATES; DISCOUNTS AND CREDITS
SECTION 21. Subchapter H, Chapter 2210, Insurance Code, is
amended by adding Section 2210.363 to read as follows:
Sec. 2210.363. PREMIUM DISCOUNTS; SURCHARGE CREDITS. (a)
The association may offer a person insured under this chapter a
premium discount on a policy issued by the association, or a credit
against any surcharge assessed against the person, if:
(1) the person elects a voluntary binding arbitration
endorsement under Section 2210.555; or
(2) the construction, alteration, remodeling,
enlargement, or repair of, or an addition to, insurable property
exceeds applicable building code standards set forth in the plan of
operation.
(b) The commissioner shall adopt rules necessary to
implement and enforce this section.
SECTION 22. Section 2210.502, Insurance Code, is amended by
adding Subsection (e) to read as follows:
(e) Notwithstanding Subsection (a), the maximum liability
limit described by Section 2210.501(b)(1) may not exceed $500,000
if all or any part of the property on which the dwelling, including
an individually owned townhouse, is located in a geographic area
with a hazard associated with storm waves.
SECTION 23. The heading to Subchapter L, Chapter 2210,
Insurance Code, is amended to read as follows:
SUBCHAPTER L. APPEALS AND OTHER ACTIONS; ARBITRATION
SECTION 24. Sections 2210.551(a) and (b), Insurance Code,
are amended to read as follows:
(a) This section:
(1) does not apply to a person insured under this
chapter who is required to resolve a dispute concerning the payment
of, the amount of, or the denial of a particular claim under Section
2210.554 or who has elected to resolve the dispute as provided by
Section 2210.555; and
(2) applies only to:
(A) [(1)] a person not described by Subdivision
(1) who is insured under this chapter or an authorized
representative of the person; or
(B) [(2)] an affected insurer.
(b) A person or entity described by Subsection (a)(2) [(a)]
who is aggrieved by an act, ruling, or decision of the association
may appeal to the commissioner not later than the 30th day after the
date of that act, ruling, or decision.
SECTION 25. The heading to Section 2210.552, Insurance
Code, is amended to read as follows:
Sec. 2210.552. CERTAIN CLAIM DISPUTES; VENUE AND NOTICE OF
INTENT TO BRING ACTION.
SECTION 26. Section 2210.552, Insurance Code, is amended by
amending Subsection (a) and adding Subsections (e) and (f) to read
as follows:
(a) Except as provided by Sections 2210.007, [and]
2210.106, 2210.554, and 2210.555, a person insured under this
chapter who is aggrieved by an act, ruling, or decision of the
association relating to the payment of, the amount of, or the denial
of a claim may:
(1) after providing the association the notice
required under Subsection (f), bring an action against the
association, including an action under Chapter 541; or
(2) appeal the act, ruling, or decision under Section
2210.551.
(e) A person who brings an action against the association
under this section:
(1) may recover the amount of actual damages, plus
court costs and reasonable and necessary attorney's fees; and
(2) may not recover punitive or exemplary damages,
including damages under Section 541.152(b).
(f) A person insured under this chapter who brings an action
against the association in the manner described by Subsection
(a)(1) may not bring the action until the 61st day after the date
the person provides written notice to the association of the
person's intent to dispute the association's handling of the
person's claim. A notice provided under this section must advise
the association of the insured's specific complaint concerning the
handling of the person's claim.
SECTION 27. Subchapter L, Chapter 2210, Insurance Code, is
amended by adding Sections 2210.553, 2210.554, and 2210.555 to read
as follows:
Sec. 2210.553. LIMITATIONS PERIOD. Notwithstanding any
other law, including Section 541.162, a person insured under this
chapter who brings an action against the association in the manner
described by Section 2210.552(a)(1) must bring the action not later
than the second anniversary of the date of the act, ruling, or
decision of the association by which the insured is aggrieved.
Sec. 2210.554. MANDATORY ARBITRATION OF CERTAIN COVERAGE
AND CLAIM DISPUTES. (a) A dispute involving an act, ruling, or
decision of the association relating to the payment of, the amount
of, or the denial of a claim based on a loss to insurable property
that has a hazard associated with storm waves:
(1) must be resolved through binding arbitration in
accordance with this section; and
(2) may not be resolved in the manner described by
Section 2210.551 or 2210.552.
(b) A person insured under this chapter who is aggrieved by
an act, ruling, or decision of the association relating to the
payment of, the amount of, or the denial of a claim described by
Subsection (a) may request binding arbitration of the person's
grievance.
(c) A person insured under this chapter must request binding
arbitration under this section not later than the later of the
second anniversary of the date on which the damage or loss that is
the basis of the particular claim occurs.
(d) The commissioner by rule shall establish procedures for
the conduct of the arbitration of grievances under this section.
The rules adopted under this subsection must:
(1) establish a procedure through which arbitrators
may become certified to conduct arbitrations under this section;
and
(2) require an arbitrator conducting an arbitration
under this section to be certified by the department.
(e) In addition to the rules required under Subsection (d),
the commissioner may adopt any other rules necessary to implement
this section, including rules concerning the manner in which
arbitrators may be chosen and the manner in which an arbitrator's
fees are to be paid under this section.
(f) The department shall make publicly available a list of
arbitrators certified to conduct arbitrations under this section.
(g) Except to the extent of any conflict with this section,
Chapter 171, Civil Practice and Remedies Code, applies to an
arbitration conducted under this section.
Sec. 2210.555. VOLUNTARY ARBITRATION OF CERTAIN COVERAGE
AND CLAIM DISPUTES. (a) A person insured under this chapter may
elect to purchase a binding arbitration endorsement in a form
prescribed by the commissioner. A person who elects to purchase an
endorsement under this section must arbitrate a dispute involving
an act, ruling, or decision of the association relating to the
payment of, the amount of, or the denial of the claim.
(b) An arbitration under this section shall be conducted in
the same manner as, and is governed by the same rules and deadlines
as, an arbitration conducted under Section 2210.554.
SECTION 28. Section 2210.604, Insurance Code, is amended by
amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) The association shall specify in the association's
request to the board the maximum principal amount of the public
securities and the maximum term of the public securities. The
maximum principal requested under this subsection may not exceed
the amount of public securities the association determines to be
marketable.
(d) If the amount of marketable Class 1 public securities is
insufficient to pay the excess losses for which the securities are
issued, marketable Class 2 public securities may be issued. If the
amount of marketable Class 2 public securities is insufficient to
pay the excess losses for which the securities are issued,
marketable Class 3 public securities may be issued.
SECTION 29. Sections 2210.613(b), (c), and (d), Insurance
Code, are amended to read as follows:
(b) Seventy percent of the cost of the public securities
shall be paid by a [nonrefundable] premium surcharge collected
under this section in an amount set by the commissioner. On
approval by the commissioner, each insurer, the association, and
the Texas FAIR Plan Association shall assess, as provided by this
section, a premium surcharge to each policyholder of a policy that
is in effect on or after the 180th day after the date the
commissioner issues notice of the approval of the public securities
[its policyholders as provided by this section]. The premium
surcharge must be set in an amount sufficient to pay, for the
duration of the issued public securities, all debt service not
already covered by available funds and all related expenses on the
public securities.
(c) The premium surcharge under Subsection (b) shall be
assessed on all policyholders of policies that cover [who reside or
have operations in, or whose] insured property that is located in a
catastrophe area, including automobiles principally garaged in a
catastrophe area. The premium surcharge shall be assessed on [for]
each Texas windstorm and hail insurance policy and each property
and casualty insurance policy, including an automobile insurance
policy, issued for automobiles and other property located in the
catastrophe area. A premium surcharge under Subsection (b) applies
to:
(1) all policies written under the following lines of
insurance:
(A) fire and allied lines;
(B) farm and ranch owners;
(C) residential property insurance;
(D) private passenger automobile liability and
physical damage insurance; and
(E) commercial passenger automobile liability
and physical damage insurance; and
(2) the property insurance portion of a commercial
multiple peril insurance [that provide coverage on any premises,
locations, operations, or property located in the area described by
this subsection for all property and casualty lines of insurance,
other than federal flood insurance, workers' compensation
insurance, accident and health insurance, and medical malpractice
insurance].
(d) A premium surcharge under Subsection (b) is a separate
[nonrefundable] charge in addition to the premiums collected and is
not subject to premium tax or commissions. Failure by a
policyholder to pay the surcharge constitutes failure to pay
premium for purposes of policy cancellation.
SECTION 30. Section 2210.6135(a), Insurance Code, is
amended to read as follows:
(a) The association shall pay Class 3 public securities
issued under Section 2210.074 as provided by this section through
member assessments. The association, for the payment of the
losses, shall assess the members of the association an amount not to
exceed $500 million per occurrence or series of occurrences that
results in insured losses in a calendar year [for the payment of the
losses]. The association shall notify each member of the
association of the amount of the member's assessment under this
section.
SECTION 31. (a) The commissioner of insurance shall
appoint an advisory committee to advise the Texas Department of
Insurance and Texas Windstorm Insurance Association concerning
appropriate building code standards to be used by the association
in the performance of its duties under Chapter 2210, Insurance
Code. The commissioner shall designate one member of the committee
to serve as the presiding officer of the committee.
(b) The commissioner of insurance shall ensure that the
following groups or interests are represented on the advisory
committee:
(1) insurers that write windstorm insurance in the
private windstorm insurance market in this state;
(2) policyholders of windstorm insurance issued both
by the association and by insurers in the private windstorm
insurance market in this state; and
(3) building and construction professionals,
including qualified inspectors appointed under Sections 2210.254
and 2210.255, Insurance Code.
(c) The advisory committee shall submit a report to the
association, for inclusion in the association's biennial report to
be submitted on or before December 31, 2012, under Section
2210.0025, Insurance Code, containing recommendations concerning
appropriate building code standards to be used by the association
in the performance of its duties under Chapter 2210, Insurance
Code.
(d) Chapter 2110, Government Code, does not apply to the
size, composition, or duration of the advisory committee or to the
appointment of the committee's presiding officer.
(e) The advisory committee shall meet at least once each
year and may meet at other times at the call of the commissioner of
insurance or the committee's presiding officer.
(f) The advisory committee may meet by telephone conference
call, video conference call, or other similar audiovisual
telecommunication.
(g) This section expires January 1, 2013.
SECTION 32. This Act applies only to a Texas windstorm and
hail insurance policy, and a dispute arising under a Texas
windstorm and hail insurance policy, delivered, issued for
delivery, or renewed by the Texas Windstorm Association on or after
the 30th day after the effective date of this Act. A Texas
windstorm and hail insurance policy, and a dispute arising under a
Texas windstorm and hail insurance policy, delivered, issued for
delivery, or renewed by the Texas Windstorm Insurance Association
before the 30th day after the effective date of this Act, are
governed by the law in effect on the date the policy was delivered,
issued for delivery, or renewed, and the former law is continued in
effect for that purpose.
SECTION 33. The Texas Windstorm Insurance Association
shall, not later than January 1, 2012, amend the association's plan
of operation as necessary to conform to the changes in law made by
this Act.
SECTION 34. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2011.