By: Miller of Comal H.B. No. 1492
A BILL TO BE ENTITLED
AN ACT
relating to consideration of asbestos or silica trust claims in
certain actions asserting asbestos- or silica-related injuries.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 90, Civil Practice and Remedies Code, is
amended by designating Sections 90.001 through 90.012 as Subchapter
A and adding a subchapter heading to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 2. Chapter 90, Civil Practice and Remedies Code, is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. ASBESTOS OR SILICA TRUST CLAIMS
Sec. 90.051. DEFINITIONS. In this subchapter:
(1) "Asbestos or silica trust" means a claims
facility, claims agent, qualified settlement fund, or any other
entity that:
(A) is created under 11 U.S.C. Section 524(g) or
another applicable law for the benefit of creditors of a bankrupt
person;
(B) is formed for the purpose of compensating
claimants for asbestos- or silica-related injuries; and
(C) is in existence on the date originally set
for trial in an action asserting an asbestos- or silica-related
injury.
(2) "Trust claim" means any filing with or claim
against an asbestos or silica trust seeking recovery of damages for
or arising from the asbestos- or silica-related injury of an
exposed person.
(3) "Trust claim material" means documentation filed
as part or in connection with a trust claim, including:
(A) documentation that a claimant submits or
provides to an asbestos or silica trust that seeks compensation or
demonstrates the existence of an asbestos- or silica-related injury
or a trust claim that the claimant may have against the asbestos or
silica trust; and
(B) claim forms and other materials that an
asbestos or silica trust requires a claimant to submit in order to
receive compensation.
Sec. 90.052. NOTICE OF TRUST CLAIMS. (a) A claimant
asserting an asbestos- or silica-related injury shall serve on each
party notice of and trust claim material relating to each trust
claim made by or on behalf of the exposed person. The notice must
include a statement by the claimant that identifies each pending
trust claim and states the date the claim was made and whether a
request for a deferral, delay, suspension, or tolling of the claim
has been submitted. The notice shall include an attestation by the
claimant's attorney, made under the penalty of perjury, that the
notice is complete and based on the attorney's good faith
investigation of all potential trust claims.
(b) In an action pending on September 1, 2015, in which
discovery was commenced before that date, the claimant shall serve
the notice and trust claim material required by Subsection (a) not
later than October 1, 2015.
(c) In an action filed on or after September 1, 2015, or an
action pending on September 1, 2015, in which discovery was not
commenced before that date, the claimant shall serve the notice and
trust claim material required by Subsection (a) not later than the
120th day before the date the action is originally set for trial.
(d) The notice and disclosures required by this section are
in addition to any notice or disclosure required by other law, rule,
order, or applicable agreement.
Sec. 90.053. ADDITIONAL TRUST CLAIMS NOTICE. (a) A
claimant shall serve notice of and trust claim material relating to
a trust claim made after the claimant serves notice of and trust
claim material under Section 90.052. The claimant shall serve the
additional notice and trust claim material on all parties not later
than the 30th day after the date the additional trust claim is made.
(b) The notice required by Subsection (a) must include a
sworn statement providing information on the additional trust
claims as prescribed by Section 90.052.
Sec. 90.054. NOTICE OF CANCER- AND NON-CANCER-RELATED TRUST
CLAIMS REQUIRED. A claimant shall serve notice of and trust claim
material relating to a trust claim regardless of whether the claim
is for an injury resulting in cancer or an injury not resulting in
cancer.
Sec. 90.055. FAILURE TO PROVIDE NOTICE. (a) An MDL
pretrial court shall decline to remand an action to a trial court if
the claimant fails to provide notice and trust claim material in
accordance with this subchapter.
(b) If a claimant received compensation from an asbestos or
silica trust for an injury that also gave rise to a judgment against
a defendant and the claimant failed to provide notice of and trust
claim material relating to the relevant trust claim in accordance
with this subchapter, the trial court, on a defendant's or judgment
debtor's motion and after reasonable notice to the parties, may
impose an appropriate sanction, including vacating the judgment and
ordering a new trial.
Sec. 90.056. MOTION TO STAY. (a) A defendant may file a
motion to stay the proceedings under Section 90.058 not later than
the 45th day before the date originally set for trial. The motion
must include:
(1) a list of asbestos or silica trusts not disclosed
by the claimant against which the defendant in good faith believes
the claimant may make a successful trust claim; and
(2) information supporting the additional trust claim
described by Subdivision (1), including information that may be
used to meet the trust claim requirements of an asbestos or silica
trust described by Subdivision (1).
(b) Notwithstanding any other provision of this subchapter,
a defendant may file a motion to stay the proceedings as described
by this section not later than the seventh day after the date the
defendant receives notice of asbestos or silica exposure
information that may support an additional asbestos or silica trust
claim.
Sec. 90.057. RESPONSE TO MOTION TO STAY. (a) Not later
than the 14th day after the date the defendant files a motion under
Section 90.056, the claimant may file a response:
(1) stating and providing proof that the claimant has
made a trust claim identified in the defendant's motion and served
notice of and trust material relating to the claim as prescribed by
Section 90.052(a); or
(2) requesting a determination by the court that the
fees and expenses, including attorney's fees, for filing a trust
claim identified in the motion exceed the claimant's reasonably
anticipated recovery from the trust.
(b) If the claimant files a response making a request under
Subsection (a)(2)(B), the court shall determine whether the
claimant's fees and expenses, including attorney's fees, for making
the relevant trust claim exceed the claimant's reasonably
anticipated recovery from the trust. If the court determines that
the claimant's fees and expenses exceed the reasonably anticipated
recovery, the claimant shall provide the court with a verified
statement of the exposed person's exposure history to asbestos or
silica that is covered by the trust.
Sec. 90.058. STAY OF PROCEEDINGS. (a) The court shall
grant a motion under Section 90.056 if the court determines there is
a good faith basis to make a trust claim identified by the motion.
The stay shall continue until the claimant provides proof that the
claimant has made the claim and served notice of and trust claim
material relating to the claim as prescribed by Section 90.052(a).
(b) The court may not stay the proceedings if, with respect
to each trust claim identified in the motion:
(1) the claimant provides the proof described by
Section 90.057(a)(1); or
(2) the court makes a determination described by
Section 90.057(b).
Sec. 90.059. EVIDENCE OF TRUST CLAIMS. (a) Trust claim
material is presumed to be authentic, relevant, and discoverable in
an action to which this subchapter applies.
(b) Notwithstanding an agreement, including a
confidentiality agreement, trust claim material is presumed not to
be privileged.
(c) A party may use the trust claim material to prove:
(1) an alternate source for the cause of the exposed
person's injury, death, or loss;
(2) a basis to allocate responsibility for the exposed
person's injury, death, or loss; or
(3) any other issue relevant to adjudication of a
claim asserted in the action.
Sec. 90.060. MODIFICATION OF JUDGMENT BASED ON SUBSEQUENT
TRUST CLAIM. (a) Subject to Subsection (c), a trial court, on a
defendant's or judgment debtor's motion and after reasonable notice
to the parties, may:
(1) modify the judgment by the amount of a subsequent
payment by an asbestos or silica trust to the claimant based on:
(A) a trust claim relating to which notice and
trust claim material was not provided to the defendant or judgment
debtor in accordance with Section 90.052; or
(B) a trust claim made after the judgment to an
asbestos or silica trust that existed at the time of the judgment;
or
(2) order other relief that the court considers just
and proper in connection with the payment.
(b) A defendant or judgment debtor must file a motion under
this section in a reasonable time after the claimant receives a
payment from a related asbestos or silica trust, but not later than
the third anniversary of the date the judgment is signed.
(c) If a motion under this section is filed after the period
that the trial court may otherwise modify a judgment, the trial
court may modify the judgment in a manner consistent with this
section on or before the 30th day after the date the motion is
filed.
(d) Notwithstanding Section 22.004, Government Code, the
supreme court may not amend or adopt rules in conflict with this
section.
SECTION 3. Subchapter B, Chapter 90, Civil Practice and
Remedies Code, as added by this Act, applies to an action:
(1) commenced on or after the effective date of this
Act; or
(2) pending on the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2015.