84R12055 AJA-D
By: Smithee H.B. No. 3646
A BILL TO BE ENTITLED
AN ACT
relating to insurance claims and certain prohibited acts and
practices in or in relation to the business of insurance; amending
provisions that are or may be subject to a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 541.002(2), Insurance Code, is amended
to read as follows:
(2) "Person" means an individual, corporation,
association, partnership, reciprocal or interinsurance exchange,
Lloyd's plan, fraternal benefit society, or other legal entity
engaged in the business of insurance, including an agent, broker,
[adjuster,] or life and health insurance counselor. The term does
not include an individual employed by an insurer as an adjuster or a
third-party individual or entity engaged by an insurer to provide
adjusting, estimating, consulting, engineering, or other services
related to the insurer's adjustment of a claim.
SECTION 2. Section 541.060, Insurance Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) It is an unfair method of competition or an unfair or
deceptive act or practice in the business of insurance for a person
to engage in the following unfair settlement practices with respect
to a claim by an insured or beneficiary:
(1) misrepresenting to a claimant a material fact or
policy provision relating to coverage at issue;
(2) failing to attempt in good faith to effectuate a
prompt, fair, and equitable settlement of:
(A) a claim with respect to which the insurer's
liability has become reasonably clear; or
(B) a claim under one portion of a policy with
respect to which the insurer's liability has become reasonably
clear to influence the claimant to settle another claim under
another portion of the coverage unless payment under one portion of
the coverage constitutes evidence of liability under another
portion;
(3) failing to promptly provide to a policyholder a
reasonable explanation of the basis in the policy, in relation to
the facts or applicable law, for the insurer's denial of a claim or
offer of a compromise settlement of a claim;
(4) failing within a reasonable time to:
(A) affirm or deny coverage of a claim to a
policyholder; or
(B) submit a reservation of rights to a
policyholder;
(5) refusing, failing, or unreasonably delaying a
settlement offer under applicable first-party coverage on the basis
that other coverage may be available or that third parties are
responsible for the damages suffered, except as may be specifically
provided in the policy;
(6) undertaking to enforce a full and final release of
a claim from a policyholder when only a partial payment has been
made, unless the payment is a compromise settlement of a doubtful or
disputed claim;
(7) refusing to pay a claim without conducting a
reasonable investigation with respect to the claim;
(8) with respect to a Texas personal automobile
insurance policy, delaying or refusing settlement of a claim solely
because there is other insurance of a different kind available to
satisfy all or part of the loss forming the basis of that claim; or
(9) requiring a claimant as a condition of settling a
claim to produce the claimant's federal income tax returns for
examination or investigation by the person unless:
(A) a court orders the claimant to produce those
tax returns;
(B) the claim involves a fire loss; or
(C) the claim involves lost profits or income.
(c) An insurer is solely responsible for any violation of
Subsection (a) by:
(1) an individual employed by the insurer as an
adjuster; or
(2) a third-party individual or entity engaged by the
insurer to provide adjusting, estimating, consulting, engineering,
or other services related to the insurer's adjustment of a claim.
SECTION 3. Section 541.061, Insurance Code, is amended to
read as follows:
Sec. 541.061. MISREPRESENTATION OF INSURANCE POLICY. (a)
It is an unfair method of competition or an unfair or deceptive act
or practice in the business of insurance for a person to
misrepresent an insurance policy by:
(1) making an untrue statement of material fact;
(2) failing to state a material fact necessary to make
other statements made not misleading, considering the
circumstances under which the statements were made;
(3) making a statement in a manner that would mislead a
reasonably prudent person to a false conclusion of a material fact;
(4) making a material misstatement of law; or
(5) failing to disclose a matter required by law to be
disclosed, including failing to make a disclosure in accordance
with another provision of this code.
(b) An insurer is solely responsible for any violation of
Subsection (a) by:
(1) an individual employed by the insurer as an
adjuster; or
(2) a third-party individual or entity engaged by the
insurer to provide adjusting, estimating, consulting, engineering,
or other services related to the insurer's adjustment of a claim.
SECTION 4. Section 541.151, Insurance Code, is amended to
read as follows:
Sec. 541.151. PRIVATE ACTION FOR ACTUAL DAMAGES AUTHORIZED.
(a) A person who sustains actual damages may bring an action against
another person for those damages caused by the other person
engaging in an act or practice:
(1) defined by Subchapter B to be an unfair method of
competition or an unfair or deceptive act or practice in the
business of insurance; or
(2) specifically enumerated in Section 17.46(b),
Business & Commerce Code, as an unlawful deceptive trade practice
if the person bringing the action shows that the person relied on
the act or practice to the person's detriment.
(b) For purposes of this subchapter, "actual damages" means
an injury independent of the harm resulting from the insurer's
denial of policy benefits. The policy benefits wrongfully
withheld, as well as any attorney's fees or costs incurred to
recover those policy benefits, do not constitute "actual damages"
for purposes of this section.
(c) An insurer is solely responsible for any violation of
Subsection (a) by:
(1) an individual employed by the insurer as an
adjuster; or
(2) a third-party individual or entity engaged by the
insurer to provide adjusting, estimating, consulting, engineering,
or other services related to the insurer's adjustment of a claim.
SECTION 5. The heading to Section 541.152, Insurance Code,
is amended to read as follows:
Sec. 541.152. ACTUAL DAMAGES, ATTORNEY'S FEES, AND OTHER
RELIEF.
SECTION 6. Section 541.154, Insurance Code, is amended to
read as follows:
Sec. 541.154. PRIOR NOTICE OF ACTION. (a) An insured [A
person] seeking damages in an action against an insurer [another
person under this subchapter] must provide written notice to the
insurer [other person] not later than the 61st day before the date
the action is filed.
(b) If the amount sought by the insured in the action
involves a claim for damage items previously submitted to the
insurer, the [The] notice must contain [advise the other person
of]:
(1) a sworn statement signed by the insured stating
the specific damage items and the amount alleged to be owed by the
insurer [the specific complaint]; [and]
(2) the amount of the [actual damages and expenses,
including] attorney's fees the insured reasonably incurred in
asserting the claim against the insurer; and
(3) a stated amount that includes the amounts
described by Subdivisions (1) and (2) that the insured will accept
in full and final satisfaction of the claim [other person].
(b-1) If the amount sought by the insured in the action
involves a claim for damage items not previously submitted to the
insurer, the notice must contain:
(1) a sworn statement signed by the insured stating
the specific damage items, the amount alleged to be owed by the
insured, and the reason the damage items were not previously
submitted to the insurer;
(2) copies of reports, estimates, photographs, and
other items reasonably supporting the insured's additional damage
items;
(3) a statement that the insured will cooperate in
allowing the insurer to inspect the insured property for purposes
of investigating the additional damage items;
(4) the amount of the attorney's fees the insured
reasonably incurred in asserting the claim against the insurer; and
(5) a stated amount that includes the amounts
described by Subdivisions (1) and (4) that the insured will accept
in full and final satisfaction of the claim.
(b-2) Notice required by this section must be sent to the
insurer by certified mail, return receipt requested.
(c) Notice under this section [The notice] is not required
if giving notice is impracticable because the action:
(1) must be filed to prevent the statute of
limitations from expiring; or
(2) is asserted as a counterclaim.
SECTION 7. Section 541.155, Insurance Code, is amended to
read as follows:
Sec. 541.155. ABATEMENT; DISMISSAL. (a) A person against
whom an action under this subchapter is pending who does not receive
[the] notice as required by Section 541.154(b) [541.154] may file a
plea in abatement not later than the 30th day after the date the
person files an original answer in the court in which the action is
pending.
(b) The court shall abate the action if, after a hearing,
the court finds that the person is entitled to an abatement because
the claimant did not provide [the] notice as required by Section
541.154(b) [541.154].
(c) An action is automatically abated without a court order
beginning on the 11th day after the date a plea in abatement is
filed if the plea:
(1) is verified and alleges that the person against
whom the action is pending did not receive [the] notice as required
by Section 541.154(b) [541.154]; and
(2) is not controverted by an affidavit filed by the
claimant before the 11th day after the date the plea in abatement is
filed.
(d) An abatement under this section continues until the 60th
day after the date notice is provided in compliance with Section
541.154(b) [541.154].
(d-1) A person against whom an action under this subchapter
is pending who does not receive notice as required by Section
541.154(b-1) may file a motion to dismiss not later than the 30th
day after the date the person files an original answer in the court
in which the action is pending.
(d-2) The court shall grant the motion under Subsection
(d-1) if, after a hearing, the court finds that the person is
entitled to dismissal because the claimant did not provide notice
as required by Section 541.154(b-1).
(e) Subsections (d-1) and (d-2) do [This section does] not
apply if Section 541.154(c) applies. If Section 541.154(c)
applies, the action may not be dismissed but shall be abated in
accordance with Subsections (b), (c), and (d).
SECTION 8. Section 542.053, Insurance Code, is amended by
adding Subsection (e) to read as follows:
(e) This subchapter is not intended to create any right of
action against an individual employed by an insurer as an adjuster
or a third-party individual or entity engaged by an insurer to
provide adjusting, estimating, consulting, engineering, or other
services related to the insurer's adjustment of a claim. An insurer
listed in Section 542.052 is solely responsible under this
subchapter for an action of an individual employed by the insurer as
an adjuster or a third-party individual or entity engaged by the
insurer to provide adjusting, estimating, consulting, engineering,
or other services related to the insurer's adjustment of a claim.
SECTION 9. Subchapter B, Chapter 542, Insurance Code, is
amended by adding Section 542.0595 to read as follows:
Sec. 542.0595. PRIOR NOTICE OF ACTION; ABATEMENT OR
DISMISSAL. (a) An insured may not bring suit under Section 542.060
in connection with a claim for property damage or loss unless the
insured has provided written notice to the insurer with respect to
the claim in accordance with Section 541.154.
(b) A suit under Section 542.060 is subject to abatement or
dismissal to the same extent and in the same manner provided by
Section 541.155 for an action under Subchapter D, Chapter 541.
SECTION 10. Section 542.060, Insurance Code, is amended to
read as follows:
Sec. 542.060. LIABILITY FOR VIOLATION OF SUBCHAPTER. (a)
If an insurer that is liable for a claim under an insurance policy
knowingly fails to act [is not] in compliance with this subchapter,
the insurer is liable to pay the holder of the policy or the
beneficiary making the claim under the policy, in addition to the
amount of the claim, interest on the unpaid amount of the claim at
the rate of 18 percent a year as damages, together with reasonable
attorney's fees.
(a-1) For purposes of Subsection (a), an insurer knowingly
fails to act in compliance with this subchapter only if the insurer
is actually aware of the insurer's failure to pay a claim for which
the insurer is liable. There is no liability under this section for
a claim with respect to which there is a bona fide dispute as to
whether the insurer is liable.
(b) If a suit is filed, interest and [the] attorney's fees
payable under this section shall be taxed as part of the costs in
the case.
(c) The liability for interest and attorney's fees provided
by this section are the exclusive remedy for a violation of this
subchapter. This section is not intended to affect a right or
remedy provided by Chapter 541 or any other law outside this
subchapter.
SECTION 11. Subchapter B, Chapter 542, Insurance Code, is
amended by adding Section 542.0601 to read as follows:
Sec. 542.0601. LIABILITY WITH RESPECT TO CERTAIN CLAIMS.
An insurer is not liable under Section 542.060 with respect to:
(1) a claim received by the insurer if it is determined
through arbitration, litigation, or another dispute resolution
process that the claim:
(A) is not covered under the insurance policy;
(B) was properly rejected;
(C) is invalid; or
(D) otherwise should not be paid by the insurer;
or
(2) a claim with respect to which an appraisal
process:
(A) is invoked under the terms of the policy:
(i) by the insurer or insured before the
commencement of litigation;
(ii) by the defendant within 60 days after
receiving notice of the commencement of litigation; or
(iii) by the plaintiff after the
commencement of litigation; and
(B) results in a valid, signed award the amount
of which is paid by the insurer not later than the 15th day after the
date the insurer receives the award, consistent with the coverage,
conditions, and limits provided by the policy, minus any prior
payments and any applicable deductible amount.
SECTION 12. Subtitle A, Title 10, Insurance Code, is
amended by adding Chapter 1808 to read as follows:
CHAPTER 1808. CLAIMS FOR PROPERTY DAMAGE
Sec. 1808.001. DEFINITION. In this chapter, "claim for
property damage" means a request for payment under an insurance
policy for damage to or loss of real property or tangible personal
property alleged to be covered by the policy.
Sec. 1808.002. APPLICABILITY OF CHAPTER. This chapter
applies to any claim under or related to an insurance policy that
provides insurance coverage against damage to or loss of real
property or tangible personal property, including a policy issued
by an insurance company, reciprocal or interinsurance exchange,
mutual insurance company, capital stock insurance company, county
mutual insurance company, Lloyd's plan, or other legal entity
authorized to write property insurance in this state.
Sec. 1808.003. CLAIM FILING PERIOD. (a) A claimant must
give an insurer prompt written notice of a claim for property damage
after property covered under the policy is damaged or lost, but in
no event later than the second anniversary of the date on which the
damage to or loss of property that is the basis of the claim occurs.
(b) Failure to provide notice of a claim for property damage
by the second anniversary of the date on which the damage to or loss
of property that is the basis of the claim occurs is an absolute bar
to recovery on the claim.
(c) Nothing in this section precludes an insurer from
raising any defense available under the terms of its policy
relating to prompt notice or that is otherwise available under the
law.
SECTION 13. Section 4102.051(a), Insurance Code, is amended
to read as follows:
(a) A person may not act as a public insurance adjuster in
this state or hold himself or herself out to be a public insurance
adjuster in this state unless the person holds a license or
certificate issued by the commissioner under Section 4102.053 or
[,] 4102.054[, or 4102.069].
SECTION 14. Section 4102.066(a), Insurance Code, is amended
to read as follows:
(a) The commissioner shall collect in advance the following
nonrefundable fees:
(1) for a public insurance adjuster license, an
application fee in an amount to be determined by rule by the
commissioner;
(2) for a nonresident public insurance adjuster
license, an application fee in an amount to be determined by rule by
the commissioner; and
(3) for each public insurance adjuster examination, a
fee in an amount to be determined by rule by the commissioner [; and
[(4) for a public insurance adjuster trainee
certificate under Section 4102.069, a registration fee in an amount
to be determined by rule by the commissioner].
SECTION 15. Section 4102.103, Insurance Code, is amended by
adding Subsection (d) to read as follows:
(d) A license holder may not enter into a contract with an
insured and collect a commission as provided by Section 4102.104
without the intent to actually perform the services of a licensed
public insurance adjuster for the insured.
SECTION 16. Section 4102.104(d), Insurance Code, is amended
to read as follows:
(d) A public insurance adjuster may not accept any payment
that violates the provisions of this section [Subsection (c)].
SECTION 17. Section 4102.158, Insurance Code, is amended by
amending Subsection (a) and adding Subsections (d), (e), and (f) to
read as follows:
(a) A license holder may not:
(1) participate directly or indirectly in the
reconstruction, repair, or restoration of damaged property that is
the subject of a claim adjusted by the license holder; or
(2) engage in any other activities that may reasonably
be construed as presenting a conflict of interest, including
soliciting or accepting any remuneration from, [or] having a
financial interest in, or having any immediate family member own or
operate, any salvage firm, repair firm, construction firm, or other
firm that obtains business in connection with any claim the license
holder has a contract or agreement to adjust.
(d) A license holder may not enter into a contract with an
insured for the primary purpose of referring the insured to an
attorney and without the intent to actually perform for the insured
the services of a licensed public insurance adjuster.
(e) A license holder may not act on behalf of an attorney in
having an insured sign an attorney representation agreement.
(f) A license holder must become familiar with and at all
times act in conformance with the criminal barratry statute set
forth in Section 38.12, Penal Code.
SECTION 18. Section 4102.160, Insurance Code, is amended to
read as follows:
Sec. 4102.160. CERTAIN PAYMENTS PROHIBITED. A license
holder may not:
(1) advance money to any potential client or insured;
or
(2) pay, allow, or give, or offer to pay, allow, or
give, directly or indirectly, to a contractor, attorney, or any
other person who is not a licensed public insurance adjuster a fee,
commission, or other valuable consideration for the referral of an
insured to the public insurance adjuster for purposes of [based on]
the insured entering into a contract with that public insurance
adjuster or for any other purpose [; or
[(3) otherwise offer to pay a fee, commission, or
other valuable consideration exceeding $100 to a person not
licensed as a public insurance adjuster for referring an insured to
the license holder].
SECTION 19. Subchapter D, Chapter 4102, Insurance Code, is
amended by adding Section 4102.164 to read as follows:
Sec. 4102.164. ACCEPTANCE OF REFERRAL PAYMENTS PROHIBITED.
(a) A licensed public insurance adjuster may not accept a fee,
commission, or other valuable consideration of any nature,
regardless of form or amount, in exchange for the referral by a
licensed public insurance adjuster of an insured to any third-party
individual or firm, including but not limited to an attorney,
appraiser, umpire, construction company, contractor, or salvage
company.
(b) The commissioner shall adopt rules necessary to
implement and enforce this section.
SECTION 20. The heading to Section 27.02, Business &
Commerce Code, is amended to read as follows:
Sec. 27.02. CERTAIN OFFERS MADE AND INFORMATION PROVIDED IN
CONNECTION WITH INSURANCE CLAIMS [FOR EXCESSIVE CHARGES].
SECTION 21. Sections 27.02(a) and (b), Business & Commerce
Code, are amended to read as follows:
(a) A person who sells goods or services, including a
contractor, appraiser, estimator, or insurance restoration
contractor, commits an offense if, in connection with a claim for
property loss or damage under a property or casualty insurance
policy:
(1) the person advertises or promises to [provide the
good or service and to] pay, waive, absorb, rebate, subsidize,
credit, or otherwise cover for any reason [:
[(A)] all or part of any applicable insurance
deductible or other uninsured amount owed by an insured under the
terms of the policy; [or
[(B) a rebate in an amount equal to all or part of
any applicable insurance deductible;]
(2) [the good or service is paid for by the consumer
from proceeds of a property or casualty insurance policy; and
[(3)] the person knowingly provides or causes to be
provided to an insurer any estimate or other statement as to the
cost of repair for the good or service to be provided that has been
increased, inflated, or otherwise manipulated [charges an amount
for the good or service that exceeds the usual and customary charge
by the person for the good or service] by an amount equal to or
greater than all or part of the applicable insurance deductible or
other uninsured amount owed by an insured under the policy; or
(3) the person knowingly provides or causes to be
provided to an insurer any false or misleading material information
within any estimate, bid, proposal, or other statement as to the
scope of damage or cost of repair for the good or service to be
provided [paid by the person to an insurer on behalf of an insured
or remitted to an insured by the person as a rebate].
(b) A person who is insured under a property or casualty
insurance policy commits an offense if the person:
(1) knowingly submits a claim under the policy based
on conduct [charges that are] in violation of Subsection (a) [of
this section]; or
(2) knowingly allows a claim in violation of
Subsection (a) [of this section] to be submitted, unless the person
promptly notifies the insurer of the conduct in violation of
Subsection (a) [excessive charges].
SECTION 22. Section 38.12(d), Penal Code, is amended to
read as follows:
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon,
public insurance adjuster, as defined by Section 4102.001,
Insurance Code, or private investigator licensed to practice in
this state or any person licensed, certified, or registered by a
health care regulatory agency of this state; and
(2) with the intent to obtain professional employment
for the person or for another, provides or knowingly permits to be
provided to an individual who has not sought the person's
employment, legal representation, advice, or care a written
communication or a solicitation, including a solicitation in person
or by telephone, that:
(A) concerns an action for personal injury or
wrongful death or otherwise relates to an accident or disaster
involving the person to whom the communication or solicitation is
provided or a relative of that person and that was provided before
the 31st day after the date on which the accident or disaster
occurred;
(B) concerns a specific matter and relates to
legal representation and the person knows or reasonably should know
that the person to whom the communication or solicitation is
directed is represented by a lawyer in the matter;
(C) concerns a lawsuit of any kind, including an
action for divorce, in which the person to whom the communication or
solicitation is provided is a defendant or a relative of that
person, unless the lawsuit in which the person is named as a
defendant has been on file for more than 31 days before the date on
which the communication or solicitation was provided;
(D) is provided or permitted to be provided by a
person who knows or reasonably should know that the injured person
or relative of the injured person has indicated a desire not to be
contacted by or receive communications or solicitations concerning
employment;
(E) involves coercion, duress, fraud,
overreaching, harassment, intimidation, or undue influence; [or]
(F) contains a false, fraudulent, misleading,
deceptive, or unfair statement or claim; or
(G) concerns the proposed adjustment of a
property damage insurance claim and is made by a person other than
the licensed public insurance adjuster who would be directly
providing the proposed public insurance adjusting services to the
recipient of the communication.
SECTION 23. Section 4102.069, Insurance Code, is repealed.
SECTION 24. Chapter 541, Insurance Code, as amended by this
Act, applies only to conduct that occurs on or after the effective
date of this Act. Conduct that occurs before the effective date of
this Act is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 25. Subchapter B, Chapter 542, Insurance Code, as
amended by this Act, applies only to a claim for which notice of
claim is provided to an insurer on or after the effective date of
this Act. A claim for which notice of claim is provided to an
insurer before the effective date of this Act is governed by the law
as it existed immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
SECTION 26. Chapter 1808, Insurance Code, as added by this
Act, applies only to a claim under an insurance policy delivered,
issued for delivery, or renewed on or after January 1, 2016. A
claim under a policy delivered, issued for delivery, or renewed
before January 1, 2016, is governed by the law as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 27. The repeal by this Act of Section 4102.069,
Insurance Code, does not affect the authority of a person to act
under a temporary certificate issued by the Texas Department of
Insurance under that section before the effective date of this Act.
SECTION 28. Sections 4102.103(d) and 4102.158(d),
Insurance Code, as added by this Act, apply only to a contract
entered into on or after the effective date of this Act.
SECTION 29. (a) Except as provided by this section, Section
4102.104, Insurance Code, as amended by this Act, applies only to
payment for a service performed on or after the effective date of
this Act.
(b) Payment for a service performed before the effective
date of this Act or performed after the effective date of this Act
under a contract entered into before the effective date of this Act
is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 30. Section 4102.160, Insurance Code, as amended by
this Act, and Section 4102.164, Insurance Code, as added by this
Act, apply only to a referral made on or after the effective date of
this Act. A referral made before the effective date of this Act is
governed by the law as it existed immediately before the effective
date of this Act, and that law is continued in effect for that
purpose.
SECTION 31. The changes in law made by this Act apply only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect when the offense was committed, and
the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 32. This Act takes effect September 1, 2015.