By: Taylor S.B. No. 1700
(In the Senate - Filed March 8, 2013; March 18, 2013, read
first time and referred to Committee on Business and Commerce;
May 9, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 1; May 9, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1700 By: Taylor
A BILL TO BE ENTITLED
AN ACT
relating to the operation of the Texas Windstorm Insurance
Association and the FAIR Plan Association and the renaming of the
Texas Windstorm Insurance Association as the Texas Residual
Insurance Plan.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2210.001, Insurance Code, is amended to
read as follows:
Sec. 2210.001. PURPOSE. The primary purpose of the Texas
Residual [Windstorm] Insurance Plan [Association] is the provision
of an adequate market for windstorm and hail insurance in the
seacoast territory of this state. The legislature finds that the
provision of adequate windstorm and hail insurance is necessary to
the economic welfare of this state, and without that insurance, the
orderly growth and development of this state would be severely
impeded. This chapter provides a method by which adequate
windstorm and hail insurance may be obtained in certain designated
portions of the seacoast territory of this state. The plan
[association] is intended to serve as a residual insurer of last
resort for windstorm and hail insurance in the seacoast territory.
The plan [association] shall:
(1) function in such a manner as to not be a direct
competitor in the private market; and
(2) provide windstorm and hail insurance coverage to
those who are unable to obtain that coverage in the private market.
SECTION 2. Section 2210.002, Insurance Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) This chapter may be cited as the Texas Residual
[Windstorm] Insurance Plan [Association] Act.
(a-1) A reference in this chapter or other law to the Texas
Windstorm Insurance Association means the Texas Residual Insurance
Plan.
SECTION 3. Section 2210.003, Insurance Code, is amended by
amending Subdivision (1) and adding Subdivisions (1-a), (3-c), and
(14) to read as follows:
(1) "Administrator" means the entity contractually
retained to:
(A) manage the association and administer the
plan of operation under Section 2210.062;
(B) establish, administer, and maintain the
electronic portal under Section 2210.211; and
(C) manage the FAIR Plan Association and
administer the plan of operation under Section 2211.0522.
(1-a) "Association" means the Texas Residual
[Windstorm] Insurance Plan [Association].
(3-c) "Exposure reduction plan fund" means the
dedicated trust fund established by the board of directors and held
by the Texas Treasury Safekeeping Trust Company into which
assessments collected under Section 2210.212 are deposited for the
purpose of achieving the association's required exposure reduction
through means including mitigation, rate assistance, or any other
means related to that purpose considered necessary by the board.
(14) "Total insured exposure" means the total of all
risks insured by the association in any class of business.
SECTION 4. Section 2210.014, Insurance Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) Chapter 542 does not apply to the processing and
settlement of claims by the association or to an agent or
representative of the association.
(c) An insurer or adjuster, or the administrator contracted
under Section 2210.062, is an agent of the association for purposes
of adjusting association claims under this section.
SECTION 5. Subchapter A, Chapter 2210, Insurance Code, is
amended by adding Section 2210.015 to read as follows:
Sec. 2210.015. STUDY OF MARKET INCENTIVES; BIENNIAL
REPORTING. (a) Each biennium, the department shall conduct a
study of market incentives to promote participation in the
voluntary windstorm and hail insurance market in the seacoast
territory of this state. The study must address as possible
incentives the mandatory or voluntary issuance of windstorm and
hail insurance in conjunction with the issuance of a homeowners
policy in the seacoast territory.
(b) The department shall include the results of the study
conducted under this section in the report submitted under Section
32.022.
SECTION 6. Subchapter B, Chapter 2210, Insurance Code, is
amended by adding Sections 2210.062, 2210.063, 2210.064, 2210.065,
and 2210.066 to read as follows:
Sec. 2210.062. ADMINISTRATION BY CONTRACTED ADMINISTRATOR.
(a) Notwithstanding any other law, the commissioner shall
contract with an administrator to manage the association and
administer the plan of operation beginning January 1, 2014. The
administrator may not exercise any power under the contract before
January 1, 2014.
(b) The administrator must hold either a managing general
agent license issued under Chapter 4053 or a third-party
administrator certificate of authority issued under Chapter 4151.
(c) The term of the administrator's contract may not exceed
five years. The contract may be renewed for additional terms not to
exceed five years for each term.
(d) In establishing the compensation paid to the
administrator under the contract, the commissioner shall consider
the cost of operations of the association and make every reasonable
effort to ensure that the cost of operations of the association
under the contract does not exceed average historical costs.
Sec. 2210.063. PROPRIETARY INFORMATION. (a) Any
information, analyses, programs, or data acquired or created by the
administrator under a contract under this chapter or Chapter 2211
are property of the department.
(b) Information, analyses, programs, or data described by
Subsection (a) are confidential and exempt from public disclosure
under Chapter 552, Government Code.
Sec. 2210.064. OFFICE; RECORDS. (a) The administrator
shall maintain an office in Austin, Texas.
(b) The commissioner may arrange to lease office space of
the department to the administrator.
Sec. 2210.065. AUDIT. (a) The administrator is subject to
audit by the commissioner and shall pay the costs incurred by the
commissioner in performing an audit under this section in an amount
the commissioner finds reasonable.
(b) Work papers, as defined by Section 401.020(a), from an
audit are confidential and not subject to disclosure under Chapter
552, Government Code.
Sec. 2210.066. ANNUAL REPORT OF ADMINISTRATOR. (a) Not
later than March 1 of each year, the administrator shall submit a
report regarding the administrator's duties under this chapter and
Chapter 2211 to:
(1) the governor;
(2) the lieutenant governor;
(3) the speaker of the house of representatives;
(4) the Senate Committee on Business and Commerce or
the successor of that committee with jurisdiction over insurance;
(5) the House Committee on Insurance or the successor
of that committee with jurisdiction over insurance; and
(6) the legislative oversight board established under
Subchapter N.
(b) The report must be made in accordance with the terms of
the administrator's contract with the department.
SECTION 7. Subchapter B-1, Chapter 2210, Insurance Code, is
amended by amending Section 2210.071 and adding Section 2210.0715
to read as follows:
Sec. 2210.071. PAYMENT OF EXCESS LOSSES[; PAYMENT FROM
RESERVES AND TRUST FUND]. [(a)] If, in a catastrophe year, an
occurrence or series of occurrences in a catastrophe area results
in insured losses and operating expenses of the association in
excess of premium and other revenue of the association, the excess
losses and operating expenses shall be paid as provided by this
subchapter.
Sec. 2210.0715. PAYMENT FROM RESERVES AND TRUST FUND. [(b)]
The association shall pay losses in excess of premium and other
revenue of the association from available reserves of the
association and available amounts in the catastrophe reserve trust
fund.
[(c) Losses not paid under Subsection (b) shall be paid from
the proceeds from public securities issued in accordance with this
subchapter and Subchapter M and, notwithstanding Subsection (a),
may be paid from the proceeds of public securities issued under
Section 2210.072(a) before an occurrence or series of occurrences
that results in insured losses.]
SECTION 8. Subchapter B-1, Chapter 2210, Insurance Code, is
amended by adding Section 2210.0716 to read as follows:
Sec. 2210.0716. PAYMENT FROM CLASS 1 ASSESSMENTS.
(a) Losses in a catastrophe year not paid under Section 2210.0715
shall be paid as provided by this section from member assessments
not to exceed $500 million for that catastrophe year.
(b) The administrator, with the approval of the
commissioner, shall notify each member 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.
(c) A member of the association may not recoup an assessment
paid under this section through a premium surcharge or tax credit.
SECTION 9. Subsections (a), (b), (b-1), (c), and (f),
Section 2210.072, Insurance Code, are amended to read as follows:
(a) Losses not paid under Sections 2210.0715 and 2210.0716
[Section 2210.071(b)] shall be paid as provided by this section
from the proceeds from Class 1 public securities authorized to be
issued in accordance with Subchapter M before, on, or after the date
of any occurrence or series of occurrences that results in insured
losses. Public securities issued under this section must be paid
[repaid] within a period not to exceed 10 [14] years, and may be
paid [repaid] sooner if the board of directors elects to do so and
the commissioner approves.
(b) Public securities described by Subsection (a) that are
issued before an occurrence or series of occurrences that results
in incurred losses:
(1) may be issued on the request of the board of
directors with the approval of the commissioner; and
(2) may not, in the aggregate, exceed $500 million [$1
billion] at any one time, regardless of the calendar year or years
in which the outstanding public securities were issued.
(b-1) Public securities described by Subsection (a):
(1) shall be issued as necessary in a principal amount
not to exceed $500 million [$1 billion] per catastrophe year, in the
aggregate, for securities issued during that catastrophe year
before the occurrence or series of occurrences that results in
incurred losses in that year and securities issued on or after the
date of that occurrence or series of occurrences, and regardless of
whether for a single occurrence or a series of occurrences; and
(2) subject to the $500 million [$1 billion] maximum
described by Subdivision (1), may be issued, in one or more
issuances or tranches, during the calendar year in which the
occurrence or series of occurrences occurs or, if the public
securities cannot reasonably be issued in that year, during the
following calendar year.
(c) If public securities are issued as described by this
section, the public securities shall be paid [repaid] in the manner
prescribed by Subchapter M [from association premium revenue].
(f) If, under Subsection (e), the proceeds of any
outstanding public securities issued during a previous catastrophe
year must be depleted, those proceeds shall count against the $500
million [$1 billion] limit on public securities described by this
section in the catastrophe year in which the proceeds must be
depleted.
SECTION 10. Subchapter B-1, Chapter 2210, Insurance Code,
is amended by adding Section 2210.0725 to read as follows:
Sec. 2210.0725. PAYMENT FROM CLASS 2 ASSESSMENTS.
(a) Losses in a catastrophe year not paid under Sections
2210.0715, 2210.0716, and 2210.072 shall be paid as provided by
this section from member assessments not to exceed $500 million for
that catastrophe year.
(b) The administrator, with the approval of the
commissioner, shall notify each member 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.
(c) A member of the association may not recoup an assessment
paid under this section through a premium surcharge or tax credit.
SECTION 11. Section 2210.073, Insurance Code, is amended to
read as follows:
Sec. 2210.073. PAYMENT FROM CLASS 2 PUBLIC SECURITIES.
(a) Losses not paid under Sections 2210.0715, 2210.0716,
[2210.071 and] 2210.072, and 2210.0725 shall be paid as provided by
this section from the proceeds from Class 2 public securities
authorized to be issued in accordance with Subchapter M on or after
the date of any occurrence or series of occurrences that results in
insured losses [under this subsection]. Public securities issued
under this section must be paid [repaid] within a period not to
exceed 10 years, and may be paid [repaid] sooner if the board of
directors elects to do so and the commissioner approves.
(b) Public securities described by Subsection (a):
(1) shall [may] be issued as necessary in a principal
amount not to exceed $500 million [$1 billion] per catastrophe
year, in the aggregate, whether for a single occurrence or a series
of occurrences; and
(2) subject to the $500 million [$1 billion] maximum
described by Subdivision (1), may be issued, in one or more
issuances or tranches, during the calendar year in which the
occurrence or series of occurrences occurs or, if the public
securities cannot reasonably be issued in that year, during the
following calendar year.
(c) If the losses are paid with public securities described
by this section, the public securities shall be paid [repaid] in the
manner prescribed by Subchapter M.
SECTION 12. Section 2210.102, Insurance Code, is amended to
read as follows:
Sec. 2210.102. COMPOSITION. (a) The board of directors is
composed of nine members appointed by the governor [commissioner]
in accordance with this section.
(b) Three [Four] members must be representatives of the
insurance industry who actively write and renew windstorm and hail
insurance in the first tier coastal counties.
(c) Three [Four] members must, as of the date of the
appointment, reside in the first tier coastal counties. Each of
the following regions must be represented by a member residing in
the region and [At least one of the members] appointed under this
subsection:
(1) the region consisting of Cameron, Kenedy, Kleberg,
and Willacy Counties;
(2) the region consisting of Aransas, Calhoun, Nueces,
Refugio, and San Patricio Counties; and
(3) the region consisting of Brazoria, Chambers,
Galveston, Jefferson, and Matagorda Counties and any part of Harris
County designated as a catastrophe area under Section 2210.005.
(c-1) One of the members appointed under Subsection (c) must
be a property and casualty agent who is licensed under this code and
is not a captive agent.
(d) One member must be a representative of an area of this
state that is not located in the seacoast territory [with
demonstrated expertise in insurance and actuarial principles].
(d-1) One member must be an engineer who:
(1) is knowledgeable of, and has professional
expertise in, wind-related design and construction practices in
coastal areas that are subject to high winds and hurricanes; and
(2) resides in a second tier coastal county.
(d-2) One member must be a representative of the financial
industry who resides in a second tier coastal county.
(e) All members must have demonstrated experience in
insurance, general business, or actuarial principles and the
member's area of expertise, if any, sufficient to make the success
of the association probable.
(f) Insurers who are members of the association shall
nominate, from among those members, persons to fill any vacancy in
the three [four] board of director seats reserved for
representatives of the insurance industry. The board of directors
shall solicit nominations from the members and submit the
nominations to the governor [commissioner]. The nominee slate
submitted to the governor [commissioner] under this subsection must
include at least three more names than the number of vacancies. The
governor may [commissioner shall] appoint replacement insurance
industry representatives from the nominee slate.
(g) In addition to the nine members appointed under
Subsection (a), the governor [The commissioner] shall appoint three
individuals [one person] to serve as [a] nonvoting ex officio
members [member] of the board to advise the board [regarding issues
relating to the inspection process. The commissioner may give
preference in an appointment under this subsection to a person who
is a qualified inspector under Section 2210.254]. Each [The]
nonvoting member appointed under this section must:
(1) hold an elective office of this state or a
political subdivision of this state; and
(2) reside in and represent one of the following
areas:
(A) the northern portion of the seacoast
territory [be an engineer licensed by, and in good standing with,
the Texas Board of Professional Engineers];
(B) the southern portion of the seacoast
territory [(2) reside in a first tier coastal county]; or [and]
(C) an area of this state that is not located in
the seacoast territory [(3) be knowledgeable of, and have
professional expertise in, wind-related design and construction
practices in coastal areas that are subject to high winds and
hurricanes].
(h) The persons appointed under Subsection (c) must reside
in [be from] different counties. The persons appointed under
Subsection (g) must reside in different counties.
SECTION 13. Subsection (c), Section 2210.103, Insurance
Code, is amended to read as follows:
(c) A member of the board of directors may be removed by the
governor [commissioner] with cause stated in writing and posted on
the association's website. The governor [commissioner] shall
appoint a replacement in the manner provided by Section 2210.102
for a member who leaves or is removed from the board of directors.
SECTION 14. Subchapter E, Chapter 2210, Insurance Code, is
amended by adding Sections 2210.2022, 2210.211, 2210.212, and
2210.213 to read as follows:
Sec. 2210.2022. INFORMATION REQUIRED FOR CERTAIN
APPLICATIONS. An application for association coverage, including
an application for new or renewal coverage on or after January 1,
2014, must include information on the applicant's policy that
covers perils other than windstorm and hail, if any, including:
(1) the total premium for that policy, including a
policy number for coverage issued by the FAIR Plan Association
under Chapter 2211, if applicable, and:
(A) the amount of insurance on the dwelling and
contents; or
(B) if the policy is a tenants policy or
condominium owners policy, the insured amount for the contents
coverage; and
(2) the deductibles applicable for each policy.
Sec. 2210.211. VOLUNTARY ELECTRONIC PORTAL. (a) As soon
as practicable after January 1, 2014, the administrator shall make
available to all insurers an electronic portal to provide insurers
access to information described by Subsection (b).
(b) The portal must provide insurers access to information
on each insured's association policy and other policy, if any, that
covers other perils, if known, including:
(1) the insured's total premium amount on the
association policy; and
(2) for coverage for perils other than windstorm and
hail:
(A) the total premium for that policy, including
a policy issued by the FAIR Plan Association under Chapter 2211, if
applicable, and:
(i) the amount of insurance on the dwelling
and its contents; or
(ii) if the policy is a tenants policy or
condominium owners policy, the insured amount for the contents
coverage; and
(B) the deductibles applicable for each policy.
Sec. 2210.212. EXPOSURE REDUCTION PLAN. (a) The
association shall reduce the association's total insured exposure
determined as of January 1, 2013, according to the following
schedule:
(1) not later than January 1, 2016, the amount of the
association's total insured exposure must reflect a 20 percent
reduction from the association's total insured exposure as of
January 1, 2013;
(2) not later than January 1, 2018, the amount of the
association's total insured exposure must reflect a 35 percent
reduction from the total insured exposure as of January 1, 2013;
(3) not later than January 1, 2020, the amount of the
association's total insured exposure must reflect a 45 percent
reduction from the association's total insured exposure as of
January 1, 2013;
(4) not later than January 1, 2022, the amount of the
association's total insured exposure must reflect a 55 percent
reduction from the association's total insured exposure as of
January 1, 2013; and
(5) not later than January 1, 2024, the amount of the
association's total insured exposure must reflect a 60 percent
reduction from the association's total insured exposure as of
January 1, 2013.
(b) As soon as practicable after January 1, 2016, January 1,
2018, January 1, 2020, and January 1, 2024, respectively, the board
of directors shall determine whether the reductions in the
association's total insured exposure required under Subsection (a)
have been achieved.
(c) If on January 1, 2016, the association did not achieve
the reduction in the total insured exposure required by Subsection
(a)(1), the board of directors shall establish a plan to reduce the
association's total insured exposure, which must include imposing
an assessment as described by Subsection (f).
(d) If on January 1, 2018, January 1, 2020, and January 1,
2024, respectively, the association did not achieve the reduction
in the total insured exposure required for that date, the board of
directors shall establish a plan to reduce the association's total
insured exposure, which must include imposing an assessment as
described by Subsection (f).
(e) An exposure reduction plan under Subsection (c) or (d)
must be implemented not later than March 31 in the year in which the
board of directors determines that the required reduction was not
achieved and must result in the achievement of the required
reduction by not later than December 31 of that year.
(f) An assessment imposed under this section must be paid
into the exposure reduction plan fund and is assessed against each
member of the association that, as determined by the board of
directors, has not met the member's proportionate responsibility
for reduction of the association's total insured exposure. The
total aggregate amount of an assessment under this section, if
assessed against all members of the association, is $200 million.
(g) The amount of a member's assessment paid under
Subsection (f) must be equal to the portion of $200 million that is
consistent with the member's proportionate participation in the
association as determined under Section 2210.052.
(h) A member of the association may not recoup an assessment
paid under this section through a premium surcharge or tax credit or
through a rate increase.
(i) At the request of the commissioner, but not less
frequently than twice each year, the administrator shall submit a
report to the commissioner detailing the amount of the
association's total insured exposure and any statistical
information or experience data requested by the commissioner
concerning the characteristics of that exposure.
(j) Not later than May 15 and November 15 of each year, the
commissioner shall submit a report to the windstorm insurance
legislative oversight board established under Subchapter N
summarizing the contents of the report submitted to the
commissioner under Subsection (i).
(k) In determining whether the association has met the goal
established under Subsection (a), the commissioner shall make
adjustments to book value of the total insured exposure as of
January 1, 2013, to reflect any change in the BOECKH Index. If the
BOECKH Index ceases to exist, the commissioner shall make
adjustments in the same manner based on another index that the board
of directors determines accurately reflects changes in the cost of
construction or residential values in the catastrophe area.
(l) Not later than January 1 of each year, beginning January
1, 2014, the department shall notify each member of the member's
proportionate share of the association's total insured exposure
required to be reduced under this section and of the member's
potential liability for an assessment under this section.
(m) The commissioner shall adopt rules necessary to
implement and enforce this section.
Sec. 2210.213. CONFIDENTIAL INFORMATION. (a) Except as
provided by Subsection (b), all information, data, and databases
collected and used under Sections 2210.2022, 2210.211, and 2210.212
are confidential information not subject to disclosure under
Chapter 552, Government Code.
(b) Information described by Subsection (a) may be used for
the purposes and in the manner described by this chapter and Chapter
2211.
SECTION 15. Section 2210.451, Insurance Code, is amended to
read as follows:
Sec. 2210.451. DEFINITION. Except to the extent that
context clearly requires otherwise, in [In] this subchapter, "trust
fund" means the catastrophe reserve trust fund.
SECTION 16. Section 2210.452, Insurance Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsection (f) to
read as follows:
(a) The commissioner shall adopt rules under which the
association makes payments to the catastrophe reserve trust fund.
Except as otherwise specifically provided by this section, the
[The] trust fund may be used only for purposes directly related to
funding the payment of insured losses, including:
(1) funding [to fund] the obligations of the trust
fund under Subchapter B-1; and
(2) purchasing reinsurance or using alternative risk
financing mechanisms under Sections 2210.453 and 2210.4531.
(c) At the end of each calendar year or policy year, the
association shall use the net gain from operations of the
association, including all premium and other revenue of the
association in excess of incurred losses, operating expenses,
deposits to the fund under Section 2210.4521, public security
obligations, and public security administrative expenses, to make
payments to the trust fund, to procure reinsurance, or to make
payments to the trust fund and to procure reinsurance.
(d) The commissioner by rule shall establish the procedure
relating to the disbursement of money from the trust fund to
policyholders and for association administrative expenses directly
related to funding the payment of insured losses in the event of an
occurrence or series of occurrences within a catastrophe area that
results in a disbursement under Subchapter B-1.
(f) The commissioner by rule shall establish the procedure
relating to the disbursement of money from the trust fund to pay for
operating expenses, including reinsurance or alternate risk
financing mechanisms under Sections 2210.453 and 2210.4531, if the
association does not have sufficient premium and other revenue.
SECTION 17. Subchapter J, Chapter 2210, Insurance Code, is
amended by adding Section 2210.4521 to read as follows:
Sec. 2210.4521. CATASTROPHE RESERVE TRUST FUND DEDICATION.
(a) Notwithstanding any other provision in this chapter, as
provided for in the plan of operation, the association shall
deposit monthly in a fund, separate from the catastrophe reserve
trust fund established under Section 2210.452, an amount sufficient
to accumulate on an annual calendar year basis an amount equal to 30
percent of the association's earned premium for the preceding
calendar year.
(b) The fund described by Subsection (a) is a trust fund
with the Texas Treasury Safekeeping Trust Company to be held
outside the state treasury.
(c) Not later than February 1 of each year the association
shall direct the Texas Treasury Safekeeping Trust Company to
deposit all amounts deposited in the fund described by Subsection
(a) during the preceding calendar year, and interest earned on
those amounts, into the catastrophe reserve trust fund.
(d) Money deposited in the fund described by Subsection (a)
is irrevocably pledged to be distributed to the catastrophe reserve
trust fund as provided in this section and is exempt from any other
claim or attachment under law.
(e) Money deposited under this section may be invested by
the Texas Treasury Safekeeping Trust Company as permitted by
general law.
SECTION 18. Section 2210.453, Insurance Code, is amended to
read as follows:
Sec. 2210.453. REINSURANCE AND ALTERNATIVE RISK FINANCING
MECHANISMS. (a) The association shall [may:
[(1) make payments into the trust fund; and
[(2)] purchase reinsurance or use alternative risk
financing mechanisms in an amount equal to $1 billion.
(b) The [association may purchase] reinsurance or
alternative risk financing mechanisms purchased or used under this
section operate [that operates] in addition to [or in concert with
the trust fund,] public securities, other approved financial
instruments, and assessments authorized by this chapter.
(c) The attachment point for reinsurance purchased under
this section may not be less than the aggregate amount of all
funding available to the association under Subchapter B-1. [If the
association does not purchase reinsurance as authorized by this
section, the board, not later than June 1 of each year, shall submit
to the commissioner, the legislative oversight board established
under Subchapter N, the governor, the lieutenant governor, and the
speaker of the house of representatives a report containing an
actuarial plan for paying losses in the event of a catastrophe with
estimated damages of $2.5 billion or more. The report required by
this subsection must:
[(1) document and denominate the association's
resources available to pay claims, including cash or other highly
liquid assets, assessments that the association is projected to
impose, pre-event and post-event bonding capacity, and
private-sector recognized risk-transfer mechanisms, including
catastrophe bonds and reinsurance;
[(2) include an independent, third-party appraisal of
the likelihood of an assessment, the maximum potential size of the
assessment, and an estimate of the probability that the assessment
would not be adequate to meet the association's needs; and
[(3) include an analysis of financing alternatives to
assessments that includes the costs of borrowing and the
consequences that additional purchase of reinsurance, catastrophe
bonds, or other private-sector recognized risk-transfer
instruments would have in reducing the size or potential of
assessments.
[(d) A person who prepares a report required by Subsection
(c) may not contract to provide any other service to the
association, except for the preparation of similar reports, before
the third anniversary of the date the last report prepared by the
person under that subsection is submitted.
[(e) The report submitted under this section is for
informational purposes only and does not bind the association to a
particular course of action.]
SECTION 19. Subchapter J, Chapter 2210, Insurance Code, is
amended by adding Section 2210.4531 to read as follows:
Sec. 2210.4531. ADDITIONAL REINSURANCE. (a) The
association shall purchase, in addition to any reinsurance
purchased under Section 2210.453, reinsurance in an amount not
greater than the lesser of:
(1) $800 million; or
(2) an amount such that the association's total loss
funding is sufficient to fund its probable maximum loss for a
catastrophe year with a probability of 1 in 100.
(b) The attachment point for reinsurance purchased under
this section may not be less than the aggregate amount of all
funding available to the association under Subchapter B-1 and
Section 2210.453.
(c) The association shall assess member insurers the cost of
reinsurance purchased under this section. The proportion of the
reinsurance cost 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.
SECTION 20. Subchapter L-1, Chapter 2210, Insurance Code,
is amended by adding Section 2210.5725 to read as follows:
Sec. 2210.5725. ASSOCIATION CLAIMS PROCESSING. (a) An
insurer that has primary coverage on property for loss by fire must
adjust all claims made on an association policy covering the same
property.
(b) An insurer acting under this section is an agent of the
association for purposes of Sections 2210.014 and 2210.572 and
shall process claims as prescribed by this chapter and the plan of
operation.
(c) An insurer acting under this section is not liable for
any amount payable under the terms of the association policy.
SECTION 21. Section 2210.602, Insurance Code, is amended by
adding Subdivisions (2-a) and (3-a) to read as follows:
(2-a) "Class 1 public security trust fund" means the
dedicated trust fund established by the board and held by the Texas
Treasury Safekeeping Trust Company into which premium surcharges
collected under Section 2210.612 for the purpose of repaying Class
1 public securities are deposited.
(3-a) "Class 2 public security trust fund" means the
dedicated trust fund established by the board and held by the Texas
Treasury Safekeeping Trust Company into which premium surcharges
collected under Section 2210.613 for the purpose of repaying Class
2 public securities are deposited.
SECTION 22. Subsection (a), Section 2210.604, Insurance
Code, is amended to read as follows:
(a) At the request of the association and with the approval
of the commissioner, the Texas Public Finance Authority shall issue
Class 1 or [,] Class 2[, or Class 3] public securities. The
association shall submit to the commissioner a cost-benefit
analysis of various financing methods and funding structures when
requesting the issuance of public securities under this subsection.
SECTION 23. Section 2210.609, Insurance Code, is amended to
read as follows:
Sec. 2210.609. REPAYMENT OF ASSOCIATION'S PUBLIC SECURITY
OBLIGATIONS. (a) The board and the association shall enter into
an agreement under which the association shall provide for the
payment of all public security obligations from available funds
collected by the association and deposited as required by this
subchapter [into the public security obligation revenue fund]. If
the association determines that it is unable to pay the public
security obligations and public security administrative expenses,
if any, with available funds, the association shall pay those
obligations and expenses in accordance with Sections 2210.612 and
[,] 2210.613, [2210.6135, and 2210.6136] as applicable. Class 1 or
[,] Class 2[, or Class 3] public securities may be issued on a
parity or subordinate lien basis with other Class 1 or [,] Class 2[,
or Class 3] public securities, respectively.
(b) If any public securities issued under this chapter are
outstanding, the authority shall notify the association of the
amount of the public security obligations and the estimated amount
of public security administrative expenses, if any, each calendar
year in a period sufficient, as determined by the association, to
permit the association to determine the availability of funds[,
assess members of the association under Sections 2210.613 and
2210.6135,] and assess a premium surcharge if necessary.
(c) The association shall deposit all revenue collected
under Section 2210.612 in the Class 1 public security trust fund
[public security obligation revenue fund,] and all revenue
collected under Section 2210.613 [2210.613(b)] in the Class 2
public security trust fund [premium surcharge trust fund, and all
revenue collected under Sections 2210.613(a) and 2210.6135 in the
member assessment trust fund]. Money deposited in a fund may be
invested as permitted by general law. Money in a fund required to
be used to pay public security obligations and public security
administrative expenses, if any, shall be transferred to the
appropriate funds in the manner and at the time specified in the
proceedings authorizing the public securities to ensure timely
payment of obligations and expenses. This may include the board
establishing funds and accounts with the comptroller that the board
determines are necessary to administer and repay the public
security obligations. If the association has not transferred
amounts sufficient to pay the public security obligations to the
board's designated interest and sinking fund in a timely manner,
the board may direct the Texas Treasury Safekeeping Trust Company
to transfer from the Class 1 public security trust fund [public
security obligation revenue fund, the premium surcharge trust
fund,] or the Class 2 public security trust fund [member assessment
trust fund] to the appropriate account the amount necessary to pay
the public security obligation.
(d) The association shall provide for the payment of the
public security obligations and the public security administrative
expenses by irrevocably pledging revenues received from premiums,
[member assessments,] premium surcharges, and amounts on deposit in
the Class 1 public security trust fund [public security obligation
revenue fund, the premium surcharge trust fund,] and the Class 2
public security trust fund [member assessment trust fund], together
with any public security reserve fund, as provided in the
proceedings authorizing the public securities and related credit
agreements.
(e) An amount owed by the board under a credit agreement
shall be payable from and secured by a pledge of revenues received
by the association [or amounts from the public security obligation
trust fund], the Class 1 public security trust fund [premium
surcharge trust fund], and the Class 2 public security trust fund
[member assessment trust fund] to the extent provided in the
proceedings authorizing the credit agreement.
SECTION 24. Subsection (a), Section 2210.610, Insurance
Code, is amended to read as follows:
(a) Revenues received from the premium surcharges under
Sections 2210.612 and [Section] 2210.613 [and member assessments
under Sections 2210.613 and 2210.6135] may be applied only as
provided by this subchapter.
SECTION 25. Section 2210.611, Insurance Code, is amended to
read as follows:
Sec. 2210.611. EXCESS REVENUE COLLECTIONS AND INVESTMENT
EARNINGS. Revenue collected in any calendar year from a premium
surcharge under Sections 2210.612 and [Section] 2210.613 [and
member assessments under Sections 2210.613 and 2210.6135] that
exceeds the amount of the public security obligations and public
security administrative expenses payable in that calendar year and
interest earned on the funds [public security obligation fund] may,
in the discretion of the association, be:
(1) used to pay public security obligations payable in
the subsequent calendar year, offsetting the amount of the premium
surcharge [and member assessments, as applicable,] that would
otherwise be required to be levied for the year under this
subchapter;
(2) used to redeem or purchase outstanding public
securities; or
(3) deposited in the catastrophe reserve trust fund.
SECTION 26. Section 2210.612, Insurance Code, is amended to
read as follows:
Sec. 2210.612. PAYMENT OF CLASS 1 PUBLIC SECURITIES.
(a) The association shall pay Class 1 public securities issued
under Section 2210.072 from:
(1) [its] net premium and other revenue; and
(2) if net premium and other revenue are not
sufficient to pay the securities, a catastrophe area premium
surcharge collected in accordance with this section.
(b) On approval by the commissioner, the association and
each insurer that provides insurance in a catastrophe area shall
assess, as provided by this section, a premium surcharge to each
policyholder of a policy described by Subsection (c). 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 this section shall be
assessed on all policyholders of policies that cover insured
property that is located in a catastrophe area, including an
automobile principally garaged in a catastrophe area. The premium
surcharge shall be assessed on each Texas windstorm and hail
insurance policy and each property and casualty insurance policy,
including an automobile insurance policy, issued for an automobile
or other property located in the catastrophe area. The premium
surcharge 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 automobile liability and physical
damage insurance; and
(2) the property insurance portion of a commercial
multiple peril insurance policy.
(d) A premium surcharge under this section is a separate
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.
(e) [(b)] The association may enter financing arrangements
as described by Section 2210.072(d) as necessary to obtain public
securities issued under Section 2210.072. Nothing in this
subsection shall prevent the authorization and creation of one or
more programs for the issuance of commercial paper before the date
of an occurrence or series of occurrences that results in insured
losses under Section 2210.072(a).
SECTION 27. Section 2210.613, Insurance Code, is amended to
read as follows:
Sec. 2210.613. PAYMENT OF CLASS 2 PUBLIC SECURITIES.
(a) The association shall pay Class 2 public securities issued
under Section 2210.073 from:
(1) net premium and other revenue; and
(2) if net premium and other revenue are not
sufficient to pay the securities, a catastrophe area premium
surcharge collected in accordance with this section.
(b) On approval by the commissioner, the association and
each insurer that provides insurance in a catastrophe area shall
assess, as provided by this section, a premium surcharge to each
policyholder of a policy described by Subsection (c). 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. [as provided by this section. Thirty percent of
the cost of the public securities shall be paid 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.
[(b) Seventy percent of the cost of the public securities
shall be paid by a 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. 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 or member assessments and all
related expenses on the public securities.]
(c) The premium surcharge under this section [Subsection
(b)] shall be assessed on all policyholders of policies that cover
insured property that is located in a catastrophe area, including
automobiles principally garaged in a catastrophe area. The
premium surcharge shall be assessed on 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.
The [A] premium surcharge under this section [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 automobile liability and physical
damage insurance; and
(2) the property insurance portion of a commercial
multiple peril insurance policy.
(d) A premium surcharge under this section [Subsection (b)]
is a separate 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 28. Section 2210.614, Insurance Code, is amended to
read as follows:
Sec. 2210.614. REFINANCING PUBLIC SECURITIES. The
association may request the board to refinance any public
securities issued in accordance with Subchapter B-1, whether Class
1 or [,] Class 2[, or Class 3] public securities, with public
securities payable from the same sources as the original public
securities.
SECTION 29. Subsection (a), Section 2210.616, Insurance
Code, is amended to read as follows:
(a) The state pledges for the benefit and protection of
financing parties, the board, and the association that the state
will not take or permit any action that would:
(1) impair the collection of [member assessments and]
premium surcharges or the deposit of those funds into the Class 1
public security [member assessment] trust fund or Class 2 public
security [premium surcharge] trust fund;
(2) reduce, alter, or impair the [member assessments
or] premium surcharges to be imposed, collected, and remitted to
financing parties until the principal, interest, and premium, and
any other charges incurred and contracts to be performed in
connection with the related public securities, have been paid and
performed in full; or
(3) in any way impair the rights and remedies of the
public security owners until the public securities are fully
discharged.
SECTION 30. Section 2210.6165, Insurance Code, is amended
to read as follows:
Sec. 2210.6165. PROPERTY RIGHTS. If public securities
issued under this subchapter are outstanding, the rights and
interests of the association, a successor to the association, any
member of the association, or any member of the Texas FAIR Plan
Association, including the right to impose, collect, and receive a
premium surcharge [or a member assessment] authorized under this
subchapter, are only contract rights until those revenues are first
pledged for the repayment of the association's public security
obligations as provided by Section 2210.609.
SECTION 31. Subsection (a), Section 2210.653, Insurance
Code, is amended to read as follows:
(a) The board shall:
(1) receive information about rules proposed by the
department relating to windstorm insurance and may submit comments
to the commissioner on the proposed rules;
(2) review the reports required by Section
2210.212(j);
(3) monitor windstorm insurance in this state,
including:
(A) the adequacy of rates;
(B) the operation of the association; and
(C) the availability of coverage; [and]
(4) monitor the activities of the administrator under
Section 2210.212, including:
(A) the performance of the administrator
contracted to administer the association;
(B) the progress toward meeting the requirements
of Section 2210.212; and
(C) the extent of voluntary market participation
in coastal and historically underserved areas in this state;
(5) review and provide input with regard to efforts to
meet the requirements of Section 2210.212; and
(6) [(3)] review recommendations for legislation
proposed by the department or the association.
SECTION 32. Section 2211.001, Insurance Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Administrator" means the entity contractually
retained to manage:
(A) the Texas Residual Insurance Plan under
Section 2210.062; and
(B) the association under Section 2211.0522.
(1-a) "Association" means the FAIR Plan Association
established under this chapter.
SECTION 33. Subchapter B, Chapter 2211, Insurance Code, is
amended by adding Sections 2211.0522 and 2211.0555 to read as
follows:
Sec. 2211.0522. ADMINISTRATION BY ADMINISTRATOR.
Notwithstanding Section 2211.052 or any other law, the
administrator shall manage the association and administer the plan
of operation beginning January 1, 2014. The administrator may not
exercise any power under the contract before January 1, 2014.
Sec. 2211.0555. ASSOCIATION CLAIMS PROCESSING. (a) The
administrator shall adjust claims made on or after January 1, 2014,
on an association policy.
(b) The administrator is not liable for any amount payable
under the terms of an association policy.
SECTION 34. Subchapter D, Chapter 2211, Insurance Code, is
amended by adding Sections 2211.1514 and 2211.1515 to read as
follows:
Sec. 2211.1514. VOLUNTARY ELECTRONIC PORTAL. (a) As soon
as practicable after January 1, 2014, the administrator shall make
available to all insurers an electronic portal to provide insurers
access to information described by Subsection (b).
(b) The portal must provide insurers access to information
on each insured's association policy and other policy, if any, that
covers other perils, if known, including:
(1) the insured's total premium amount on the
association policy;
(2) the total premium for a policy that covers losses
due to windstorm and hail, if any, including a policy issued by the
Texas Residual Insurance Plan under Chapter 2210, if applicable,
and:
(A) the amount of insurance on the dwelling and
its contents; or
(B) if the policy is a tenants policy or
condominium owners policy, the insured amount for the contents
coverage; and
(3) the deductibles applicable for each policy.
Sec. 2211.1515. CONFIDENTIAL INFORMATION. (a) Except as
provided by Subsection (b), all information and data collected and
used under Section 2211.1514 constitute confidential information
not subject to disclosure under Chapter 552, Government Code.
(b) Information described by Subsection (a) may be used for
the purposes and in the manner described by this chapter and Chapter
2210.
SECTION 35. The Texas Department of Insurance shall conduct
a study to consider possible exposure reduction plans for the FAIR
Plan Association established under Chapter 2211, Insurance Code.
Not later than January 1, 2014, the department shall submit a report
containing the findings of the study to:
(1) the governor;
(2) the lieutenant governor;
(3) the speaker of the house of representatives;
(4) the Senate Committee on Business and Commerce or
the successor of that committee with jurisdiction over insurance;
(5) the House Committee on Insurance or the successor
of that committee with jurisdiction over insurance; and
(6) the legislative oversight board established under
Subchapter N, Chapter 2210, Insurance Code.
SECTION 36. The following provisions of Chapter 2210,
Insurance Code, are repealed:
(1) Sections 2210.074 and 2210.075;
(2) Subdivisions (4), (5-a), (6-b), (6-c), and (10),
Section 2210.602;
(3) Subsection (c), Section 2210.605; and
(4) Sections 2210.6135 and 2210.6136.
SECTION 37. (a) The board of directors of the Texas
Windstorm Insurance Association established under Section
2210.102, Insurance Code, as that section existed before amendment
by this Act, is abolished effective November 1, 2013.
(b) The governor shall appoint the members of the board of
directors of the Texas Residual Insurance Plan under Section
2210.102, Insurance Code, as amended by this Act, effective
November 1, 2013. The initial directors shall draw lots to achieve
staggered terms, with three of the directors serving one-year
terms, three of the directors serving two-year terms, and three of
the directors serving three-year terms.
(c) The term of a person who is serving as a member of the
board of directors of the Texas Windstorm Insurance Association
immediately before the abolition of that board under Subsection (a)
of this section expires on November 1, 2013. Such a person is
eligible for appointment by the governor to the new board of
directors of the Texas Residual Insurance Plan under Section
2210.102, Insurance Code, as amended by this Act.
(d) Notwithstanding Section 2210.4521, Insurance Code, as
added by this Act, beginning on the effective date of this Act and
continuing until December 31, 2013, the Texas Residual Insurance
Plan shall deposit 30 percent of its earned premium into the trust
fund described by that section. Not later than February 1, 2014,
the plan shall direct the Texas Treasury Safekeeping Trust Company
to deposit all amounts deposited in the trust fund during the 2013
calendar year, and interest earned on those funds, into the
catastrophe reserve trust fund as described by that section.
(e) Section 2210.4521, Insurance Code, as added by this Act,
applies to all Texas Residual Insurance Plan premiums earned on and
after January 1, 2014.
(f) Notwithstanding Subsection (d) of this section and
Section 2210.0715, Insurance Code, as added by this Act, amounts
collected under Section 2210.4521, Insurance Code, as added by this
Act, may not be used to pay for a covered insured association loss
incurred before June 1, 2013.
(g) Section 2210.5725, Insurance Code, as added by this Act,
applies only to adjustment of a claim made on or after the effective
date of this Act.
(h) It is the intent of the legislature that each member of
the legislative oversight board appointed under Section 2210.652,
Insurance Code, and serving on the effective date of this Act
continues to serve after the effective date of this Act until a
successor is appointed under that section.
SECTION 38. 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, 2013.
* * * * *