Texas 2015 - 84th Regular

Texas House Bill HB1492 Compare Versions

Version 1 (Old)

Version 2 (New)

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1		-	By: Miller of Comal, et al. H.B. No. 1492
2		-	(Senate Sponsor - Schwertner)
3		-	(In the Senate - Received from the House May 12, 2015;
4		-	May 12, 2015, read first time and referred to Committee on State
5		-	Affairs; May 19, 2015, reported favorably by the following vote:
6		-	Yeas 9, Nays 0; May 19, 2015, sent to printer.)
7		-	Click here to see the committee vote
	1	+	H.B. No. 1492
8	2
9	3
10		-	A BILL TO BE ENTITLED
11	4		AN ACT
12	5		relating to consideration of asbestos or silica trust claims in
13	6		certain actions asserting asbestos- or silica-related injuries.
14	7		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	8		SECTION 1. Chapter 90, Civil Practice and Remedies Code, is
16	9		amended by designating Sections 90.001 through 90.012 as Subchapter
17	10		A and adding a subchapter heading to read as follows:
18	11		SUBCHAPTER A. GENERAL PROVISIONS
19	12		SECTION 2. Section 90.010(d-1), Civil Practice and Remedies
20	13		Code, is amended to read as follows:
21	14		(d-1) Beginning on September 1, 2014, the MDL pretrial court
22	15		shall dismiss each action for an asbestos-related injury or a
23	16		silica-related injury that was pending on August 31, 2005, unless a
24	17		report was served on or after September 1, 2013, that complies with
25	18		Section 90.003, Section 90.004, or Subsection (f). The MDL
26	19		pretrial court shall provide for the dismissal of such actions in a
27	20		case management order entered for that purpose. All [such] actions
28	21		for a silica-related injury shall be dismissed on or before August
29	22		31, 2015. All actions for an asbestos-related injury shall be
30	23		dismissed on or before December 31, 2015.
31	24		SECTION 3. Chapter 90, Civil Practice and Remedies Code, is
32	25		amended by adding Subchapter B to read as follows:
33	26		SUBCHAPTER B. ASBESTOS OR SILICA TRUST CLAIMS
34	27		Sec. 90.051. DEFINITIONS. In this subchapter:
35	28		(1) "Asbestos or silica trust" means a claims
36	29		facility, a claims agent, a qualified settlement fund, or any other
37	30		entity that:
38	31		(A) is created under 11 U.S.C. Section 524(g) or
39	32		another applicable law for the benefit of creditors of a bankrupt
40	33		person;
41	34		(B) is formed for the purpose of compensating
42	35		claimants for asbestos- or silica-related injuries; and
43	36		(C) is in existence on the date trial in an action
44	37		asserting an asbestos- or silica-related injury is set to commence.
45	38		(2) "Trust claim" means any filing with or claim
46	39		against an asbestos or silica trust seeking recovery of
47	40		compensation or damages for or arising from the asbestos- or
48	41		silica-related injury of an exposed person.
49	42		(3) "Trust claim material" means documentation filed
50	43		as part of or in connection with a trust claim, including:
51	44		(A) documentation that a claimant submits or
52	45		provides to an asbestos or silica trust for the purpose of
53	46		demonstrating asbestos or silica exposure, the existence of an
54	47		asbestos- or silica-related injury, or the validity of a trust
55	48		claim; and
56	49		(B) claim forms and other materials that an
57	50		asbestos or silica trust requires a claimant to submit.
58	51		Sec. 90.052. REQUIREMENT TO MAKE TRUST CLAIMS. (a) Except
59	52		as provided by Subsection (d), a claimant who has filed an action to
60	53		recover damages for or arising from an asbestos- or silica-related
61	54		injury shall make a trust claim against each asbestos or silica
62	55		trust the claimant believes may owe compensation or damages to the
63	56		claimant for the injury that is the basis of the claimant's action.
64	57		(b) A claimant must make each trust claim required under
65	58		this section not later than:
66	59		(1) the 150th day before the date trial in the action
67	60		is set to commence; or
68	61		(2) a date provided by court order if trial is set to
69	62		commence on or before January 31, 2016.
70	63		(c) A claimant may file a motion seeking relief from the
71	64		obligation to make a trust claim otherwise required by this section
72	65		if the claimant believes that the fees and expenses, including
73	66		attorney's fees, for filing the trust claim exceed the claimant's
74	67		reasonably anticipated recovery from the trust.
75	68		(d) If a claimant files a motion under Subsection (c), the
76	69		court shall determine whether the claimant's fees and expenses,
77	70		including attorney's fees, for making the trust claim exceed the
78	71		claimant's reasonably anticipated recovery from the trust. If the
79	72		court determines that the claimant's fees and expenses exceed the
80	73		claimant's reasonably anticipated recovery, the claimant is not
81	74		required to make the trust claim but shall provide the court with a
82	75		verified statement of the exposed person's exposure history to
83	76		asbestos or silica that is covered by the trust.
84	77		Sec. 90.053. NOTICE OF TRUST CLAIM; PRODUCTION OF TRUST
85	78		CLAIM MATERIAL. (a) A claimant in an action to recover damages for
86	79		or arising from an asbestos- or silica-related injury shall serve
87	80		on each party notice of, and trust claim material relating to, each
88	81		trust claim made by or on behalf of the exposed person. The notice
89	82		must:
90	83		(1) identify each trust claim made by or on behalf of
91	84		the exposed person;
92	85		(2) state the amount of any trust claim payment made to
93	86		compensate for the exposed person's injury; and
94	87		(3) state the date each trust claim was made and
95	88		whether a request for individual or enhanced review or for a
96	89		deferral, delay, suspension, or tolling of the claim has been
97	90		submitted to the trust.
98	91		(b) The claimant shall serve the notice and trust claim
99	92		materials required by Subsection (a) not later than:
100	93		(1) the 120th day before the date trial in the action
101	94		is set to commence; or
102	95		(2) a date provided by court order if the court entered
103	96		an order under Section 90.052(b).
104	97		(c) The notice and trust claim materials required to be
105	98		served under Subsection (a) are in addition to any notice or
106	99		materials required to be served or produced under other law, rule,
107	100		order, or applicable agreement.
108	101		(d) If a claimant makes a trust claim after the date
109	102		provided by Section 90.052(b) but before the date that trial in the
110	103		action commences, the claimant shall serve the notice of, and trust
111	104		claim material relating to, the trust claim as required by
112	105		Subsection (a) reasonably promptly after making the trust claim,
113	106		but not later than the earlier of:
114	107		(1) the date that trial commences; or
115	108		(2) the 15th day after the date the additional trust
116	109		claim is made.
117	110		(e) If a claimant discovers that the notice or trust claim
118	111		materials provided by the claimant under this section were
119	112		incomplete or incorrect at the time the notice or trust claim
120	113		materials were served or that the notice or trust claim materials as
121	114		served are no longer complete and correct, the claimant shall
122	115		supplement the notice and the production of trust claim materials.
123	116		The claimant shall serve the supplemental notice or trust claim
124	117		materials reasonably promptly after the claimant discovers the
125	118		necessity for the supplementation, but not later than the 15th day
126	119		after the date the claimant discovers the necessity for the
127	120		supplementation.
128	121		(f) A claimant shall serve notice of, and trust claim
129	122		material relating to, a trust claim regardless of whether the claim
130	123		is for an injury resulting in cancer or an injury not resulting in
131	124		cancer.
132	125		Sec. 90.054. FAILURE TO MAKE TRUST CLAIM OR PROVIDE NOTICE
133	126		AND TRUST CLAIM MATERIAL. (a) An MDL pretrial court may not remand
134	127		an action to a trial court and a trial court may not commence trial
135	128		in the action unless the claimant has:
136	129		(1) made each trust claim as required by this
137	130		subchapter; and
138	131		(2) served the notice of, and trust claim material
139	132		relating to, those trust claims in accordance with Section 90.053.
140	133		(b) If a claimant received compensation from an asbestos or
141	134		silica trust for an injury that also gave rise to a judgment against
142	135		a defendant for the same injury and the claimant failed to serve the
143	136		relevant notice and trust claim material as required by Section
144	137		90.053, the trial court, on a defendant's or judgment debtor's
145	138		motion and after reasonable notice to the parties, may impose an
146	139		appropriate sanction, including setting aside the judgment and
147	140		ordering a new trial.
148	141		(c) This section may not be construed to require payment of
149	142		a trust claim by an asbestos or silica trust before the MDL pretrial
150	143		court remands the action for trial or before a judgment is rendered
151	144		in the action.
152	145		Sec. 90.055. MOTION TO STAY. (a) A defendant may file a
153	146		motion requesting a stay of the proceedings under Section 90.057 on
154	147		or before the later of:
155	148		(1) the 60th day before the date trial in the action is
156	149		set to commence;
157	150		(2) the 15th day after the date the defendant first
158	151		obtains asbestos- or silica-exposure information that could
159	152		support an additional asbestos or silica trust claim by the
160	153		claimant; or
161	154		(3) a date provided by court order if the court entered
162	155		an order under Section 90.052(b).
163	156		(b) The motion described by Subsection (a) must include:
164	157		(1) a list of asbestos or silica trusts not disclosed
165	158		by the claimant against which the defendant in good faith believes
166	159		the claimant may make a successful trust claim; and
167	160		(2) information supporting the additional trust claim
168	161		described by Subdivision (1), including information that may be
169	162		used to meet the trust claim requirements of an asbestos or silica
170	163		trust described by Subdivision (1).
171	164		Sec. 90.056. RESPONSE TO MOTION TO STAY. (a) Not later
172	165		than the 14th day after the date the defendant files a motion to
173	166		stay under Section 90.055 or the date provided by court order under
174	167		Section 90.052(b), the claimant may file a response:
175	168		(1) stating and providing proof that the claimant has
176	169		made a trust claim identified in the defendant's motion and served
177	170		the notice of, and trust claim material relating to, the claim as
178	171		prescribed by Section 90.053; or
179	172		(2) requesting a determination by the court that the
180	173		fees and expenses, including attorney's fees, for filing a trust
181	174		claim identified in the motion exceed the claimant's reasonably
182	175		anticipated recovery from the trust.
183	176		(b) If the claimant files a response making a request under
184	177		Subsection (a)(2), the court shall determine whether the claimant's
185	178		fees and expenses, including attorney's fees, for making the
186	179		relevant trust claim exceed the claimant's reasonably anticipated
187	180		recovery from the trust. If the court determines that the
188	181		claimant's fees and expenses exceed the claimant's reasonably
189	182		anticipated recovery, the claimant is not required to make the
190	183		trust claim but shall provide the court with a verified statement of
191	184		the exposed person's exposure history to asbestos or silica that is
192	185		covered by the trust.
193	186		Sec. 90.057. STAY OF PROCEEDINGS. (a) The court shall grant
194	187		a motion to stay under Section 90.055 if the court determines the
195	188		motion was timely filed and the claimant is likely to receive
196	189		compensation from a trust identified by the motion. The stay shall
197	190		continue until the claimant provides proof that the claimant has
198	191		made the claim and served notice of, and trust claim material
199	192		relating to, the claim as prescribed by Section 90.053.
200	193		(b) The court may not stay the proceedings if, with respect
201	194		to each trust claim identified in the motion:
202	195		(1) the court determines that the claimant has
203	196		satisfied the requirements of Section 90.053(a); or
204	197		(2) the court makes a determination described by
205	198		Section 90.052(d) or 90.056(b).
206	199		Sec. 90.058. EVIDENCE OF TRUST CLAIMS. (a) Trust claim
207	200		material is presumed to be authentic, relevant, and discoverable in
208	201		an action to which this subchapter applies.
209	202		(b) Notwithstanding an agreement, including a
210	203		confidentiality agreement, trust claim material is presumed to not
211	204		be privileged in an action to which this subchapter applies.
212	205		(c) This section may not be construed to affect the
213	206		application of Section 33.003 to an action governed by this
214	207		chapter.
215	208		SECTION 4. Subchapter B, Chapter 90, Civil Practice and
216	209		Remedies Code, as added by this Act, applies to an action:
217	210		(1) commenced on or after the effective date of this
218	211		Act; or
219	212		(2) pending on the effective date of this Act.
220	213		SECTION 5. This Act takes effect September 1, 2015.
221		-	* * * * *
	214	+	______________________________ ______________________________
	215	+	President of the Senate Speaker of the House
	216	+	I certify that H.B. No. 1492 was passed by the House on May
	217	+	11, 2015, by the following vote: Yeas 126, Nays 11, 1 present, not
	218	+	voting.
	219	+	______________________________
	220	+	Chief Clerk of the House
	221	+	I certify that H.B. No. 1492 was passed by the Senate on May
	222	+	22, 2015, by the following vote: Yeas 29, Nays 1, 1 present, not
	223	+	voting.
	224	+	______________________________
	225	+	Secretary of the Senate
	226	+	APPROVED: _____________________
	227	+	Date
	228	+	_____________________
	229	+	Governor