84R9915 AJA-D
By: Taylor of Galveston S.B. No. 1246
A BILL TO BE ENTITLED
AN ACT
relating to dispute resolution for certain claims arising under
insurance policies issued by the Fair Access to Insurance
Requirements (FAIR) Plan Association; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2211.003, Insurance Code, is amended by
adding Subsection (c) to read as follows:
(c) Subsection (a) does not apply to a person who is
required to resolve a dispute under Subchapter D-1.
SECTION 2. Subchapter A, Chapter 2211, Insurance Code, is
amended by adding Sections 2211.004 and 2211.005 to read as
follows:
Sec. 2211.004. CERTAIN CONDUCT IN DISPUTE RESOLUTION
PROHIBITED. (a) For purposes of this section, "presiding officer"
includes a judge, mediator, arbitrator, appraiser, or panel member.
(b) If a person insured under this chapter is assigned to
act as presiding officer to preside over or resolve a dispute
involving the association and another person insured under this
chapter, the presiding officer shall, not later than the seventh
day after the date of assignment, give written notice to the
association and to each other party to the dispute, or the
association's or other party's attorney, that the presiding officer
is insured under this chapter.
(c) In a proceeding with respect to which the commissioner
has authority to designate the presiding officer, the association
or other party that receives notice under Subsection (b) may file
with the commissioner a written objection to the assignment of the
presiding officer to the dispute. The written objection must
contain the factual basis on which the association or other party
objects to the assignment.
(d) The commissioner shall assign a different presiding
officer to the dispute if, after reviewing the objection filed
under Subsection (c), the commissioner determines that the
presiding officer originally assigned to the dispute has a direct
financial or personal interest in the outcome of the dispute.
(e) The association or other party must file an objection
under Subsection (c) not later than the earlier of:
(1) the seventh day after the date the association or
other party receives actual notice that the presiding officer is
insured under this chapter; or
(2) the seventh day before the date of the first
proceeding concerning the dispute.
(f) The commissioner may, on a showing of good cause, extend
the deadline to file an objection under Subsection (e).
Sec. 2211.005. APPLICABILITY OF CERTAIN OTHER LAW. (a) A
person may not bring a private action against the association,
including a claim against an agent or representative of the
association, under Chapter 541 or 542. Notwithstanding any other
provision of this code or this chapter, a class action under
Subchapter F, Chapter 541, or under Rule 42, Texas Rules of Civil
Procedure, may be brought against the association only by the
attorney general at the request of the department.
(b) Chapter 542 does not apply to the processing and
settlement of claims by the association.
SECTION 3. Subchapter D, Chapter 2211, Insurance Code, is
amended by adding Sections 2211.158 and 2211.159 to read as
follows:
Sec. 2211.158. REQUIRED POLICY PROVISIONS: DEADLINE FOR
FILING CLAIM; NOTICE CONCERNING RESOLUTION OF CERTAIN DISPUTES.
(a) An insurance policy issued by the association must:
(1) require an insured to file a claim under the policy
not later than the first anniversary of the date on which the damage
to property that is the basis of the claim occurs; and
(2) contain, in boldface type, a conspicuous notice
concerning the resolution of disputes under the policy, including:
(A) the processes and deadlines for appraisal
under Section 2211.174 and alternative dispute resolution under
Section 2211.175;
(B) the binding effect of appraisal under Section
2211.174; and
(C) the necessity of complying with the
requirements of Subchapter D-1 to seek relief, including judicial
relief.
(b) The commissioner, on a showing of good cause by a person
insured under this chapter, may extend the one-year period
described by Subsection (a)(1) for a period not to exceed 180 days.
Sec. 2211.159. VOLUNTARY ARBITRATION OF CERTAIN COVERAGE
AND CLAIM DISPUTES. (a) A person insured under this chapter may
elect to purchase a binding arbitration endorsement in a form
prescribed by the commissioner. A person who elects to purchase an
endorsement under this section must arbitrate a dispute involving
an act, ruling, or decision of the association relating to the
payment of, the amount of, or the denial of the claim.
(b) An arbitration under this section shall be conducted in
the manner and under rules and deadlines prescribed by the
commissioner by rule.
(c) The association may offer a person insured under this
chapter an actuarially justified premium discount on a policy
issued by the association if the person elects to purchase a binding
arbitration endorsement under this section. The premium discount
may not exceed 10 percent of the premium for the policy, before the
application of the discount.
(d) The commissioner shall adopt rules necessary to
implement and enforce this section, including rules defining
"actuarially justified" for the purposes of this section.
SECTION 4. Chapter 2211, Insurance Code, is amended by
adding Subchapter D-1 to read as follows:
SUBCHAPTER D-1. CLAIMS: SETTLEMENT AND DISPUTE RESOLUTION
Sec. 2211.171. DEFINITIONS. In this subchapter:
(1) "Association policy" means an insurance policy
issued by the association.
(2) "Claim" means a request for payment under an
association policy. The term also includes any other claim against
the association, or an agent or representative of the association,
relating to an insured loss, under any theory or cause of action of
any kind, regardless of the theory under which the claim is
asserted, the cause of action brought, or the type of damages
sought.
(3) "Claimant" means a person who makes a claim.
Sec. 2211.172. EXCLUSIVE REMEDIES AND LIMITATION ON AWARD.
(a) This subchapter provides the exclusive remedies for a claim
against the association, including an agent or representative of
the association.
(b) Subject to Section 2211.176, the association may not be
held liable for any amount other than covered losses payable under
the terms of the association policy.
(c) The association, or an agent or representative of the
association, may not be held liable for damages under Chapter 17,
Business & Commerce Code, or, except as otherwise specifically
provided by this chapter, under any provision of any law providing
for additional damages, exemplary damages, or a penalty.
Sec. 2211.173. FILING OF CLAIM; CLAIM PROCESSING. (a)
Subject to Section 2211.158(b), an insured must file a claim under
an association policy not later than the first anniversary of the
date on which the damage to property that is the basis of the claim
occurs.
(b) The claimant may submit written materials, comments,
documents, records, and other information to the association
relating to the claim. If the claimant fails to submit information
in the claimant's possession that is necessary for the association
to determine whether to accept or reject a claim, the association
may, not later than the 30th day after the date the claim is filed,
request in writing the necessary information from the claimant.
(c) The association shall, on request, provide a claimant
reasonable access to all information relevant to the determination
of the association concerning the claim. The claimant may copy the
information at the claimant's own cost or may request the
association to provide a copy of all or part of the information to
the claimant. The association may charge a claimant the actual cost
incurred by the association in providing a copy of information
under this section, excluding any amount for labor involved in
making any information or copy of information available to a
claimant.
(d) Unless the applicable 60-day period described by this
subsection is extended by the commissioner under Section 2211.180,
not later than the later of the 60th day after the date the
association receives a claim or the 60th day after the date the
association receives information requested under Subsection (b),
the association shall provide the claimant, in writing,
notification that:
(1) the association has accepted coverage for the
claim in full;
(2) the association has accepted coverage for the
claim in part and has denied coverage for the claim in part; or
(3) the association has denied coverage for the claim
in full.
(e) In a notice provided under Subsection (d)(1), the
association must inform the claimant of the amount of loss the
association will pay and of the time limit to demand appraisal under
Section 2211.174.
(f) In a notice provided under Subsection (d)(2) or (3), the
association must inform the claimant of, as applicable:
(1) the portion of the loss for which the association
accepts coverage and the amount of loss the association will pay;
(2) the portion of the loss for which the association
denies coverage and a detailed summary of the manner in which the
association determined not to accept coverage for that portion of
the claim; and
(3) the time limit to:
(A) demand appraisal under Section 2211.174 of
the portion of the loss for which the association accepts coverage;
and
(B) provide notice of intent to bring an action
as required by Section 2211.175.
(g) In addition to a notice provided under Subsection (d)(2)
or (3), the association shall provide a claimant with a form on
which the claimant may provide the association notice of intent to
bring an action as required by Section 2211.175.
Sec. 2211.1731. PAYMENT OF CLAIM. (a) Except as provided
by Subsection (b), if the association notifies a claimant under
Section 2211.173(d)(1) or (2) that the association has accepted
coverage for a claim in full or has accepted coverage for a claim in
part, the association shall pay the accepted claim or accepted
portion of the claim not later than the 10th day after the date
notice is made.
(b) If payment of the accepted claim or accepted portion of
the claim is conditioned on the performance of an act by the
claimant, the association shall pay the claim not later than the
10th day after the date the act is performed.
Sec. 2211.174. DISPUTES CONCERNING AMOUNT OF ACCEPTED
COVERAGE. (a) If the association accepts coverage for a claim in
full and a claimant disputes only the amount of loss the association
will pay for the claim, or if the association accepts coverage for a
claim in part and a claimant disputes the amount of loss the
association will pay for the accepted portion of the claim, the
claimant may request from the association a detailed summary of the
manner in which the association determined the amount of loss the
association will pay.
(b) If a claimant disputes the amount of loss the
association will pay for a claim or a portion of a claim, the
claimant, not later than the 60th day after the date the claimant
receives the notice described by Section 2211.173(d)(1) or (2), may
demand appraisal in accordance with the terms of the association
policy.
(c) If a claimant, on a showing of good cause and not later
than the 15th day after the expiration of the 60-day period
described by Subsection (b), requests in writing that the 60-day
period be extended, the association may grant an additional 30-day
period in which the claimant may demand appraisal.
(d) If a claimant demands appraisal under this section:
(1) the appraisal must be conducted as provided by the
association policy; and
(2) the claimant and the association are responsible
in equal shares for paying any costs incurred or charged in
connection with the appraisal, including a fee charged under
Subsection (e).
(e) If a claimant demands appraisal under this section and
the appraiser retained by the claimant and the appraiser retained
by the association are able to agree on an appraisal umpire to
participate in the resolution of the dispute, the appraisal umpire
is the umpire chosen by the two appraisers. If the appraiser
retained by the claimant and the appraiser retained by the
association are unable to agree on an appraisal umpire to
participate in the resolution of the dispute, the commissioner
shall select an appraisal umpire from a roster of qualified umpires
maintained by the department. The department may:
(1) require appraisers to register with the department
as a condition of being placed on the roster; and
(2) charge a reasonable registration fee to defray the
cost incurred by the department in maintaining the roster and the
commissioner in selecting an appraisal umpire under this
subsection.
(f) Except as provided by Subsection (g), the appraisal
decision is binding on the claimant and the association as to the
amount of loss the association will pay for a fully accepted claim
or the accepted portion of a partially accepted claim and is not
appealable or otherwise reviewable. A claimant that does not
demand appraisal before the expiration of the periods described by
Subsections (b) and (c) waives the claimant's right to contest the
association's determination of the amount of loss the association
will pay with reference to a fully accepted claim or the accepted
portion of a partially accepted claim.
(g) A claimant or the association may, not later than the
second anniversary of the date of an appraisal decision, file an
action in a district court in the county in which the loss that is
the subject of the appraisal occurred to vacate the appraisal
decision and begin a new appraisal process if:
(1) the appraisal decision was obtained by corruption,
fraud, or other undue means;
(2) the rights of the claimant or the association were
prejudiced by:
(A) evident partiality by an appraisal umpire;
(B) corruption in an appraiser or appraisal
umpire; or
(C) misconduct or wilful misbehavior of an
appraiser or appraisal umpire; or
(3) an appraiser or appraisal umpire:
(A) exceeded the appraiser's or appraisal
umpire's powers;
(B) refused to postpone the appraisal after a
showing of sufficient cause for the postponement;
(C) refused to consider evidence material to the
claim; or
(D) conducted the appraisal in a manner that
substantially prejudiced the rights of the claimant or the
association.
(h) Except as provided by Subsection (g), a claimant may not
bring an action against the association with reference to a claim
for which the association has accepted coverage in full.
Sec. 2211.175. DISPUTES CONCERNING DENIED COVERAGE. (a)
If the association denies coverage for a claim in part or in full
and the claimant disputes that determination, the claimant, not
later than the expiration of the limitations period described by
Section 2211.177(a) but after the date the claimant receives the
notice described by Section 2211.173(d)(2) or (3), must provide the
association with notice that the claimant intends to bring an
action against the association concerning the partial or full
denial of the claim. A claimant that does not provide notice of
intent to bring an action before the expiration of the period
described by this subsection waives the claimant's right to contest
the association's partial or full denial of coverage and is barred
from bringing an action against the association concerning the
denial of coverage.
(b) If a claimant provides notice of intent to bring an
action under Subsection (a), the association may require the
claimant, as a prerequisite to filing the action against the
association, to submit the dispute to alternative dispute
resolution by mediation or moderated settlement conference, as
provided by Chapter 154, Civil Practice and Remedies Code.
(c) The association must request alternative dispute
resolution of a dispute described by Subsection (b) not later than
the 60th day after the date the association receives from the
claimant notice of intent to bring an action.
(d) Alternative dispute resolution under this section must
be completed not later than the 60th day after the date a request
for alternative dispute resolution is made under Subsection (c).
The 60-day period described by this subsection may be extended by
the commissioner in accordance with Section 2211.180 or by the
association and a claimant by mutual consent.
(e) If the claimant is not satisfied after completion of
alternative dispute resolution, or if alternative dispute
resolution is not completed before the expiration of the 60-day
period described by Subsection (d) or any extension under that
subsection, the claimant may bring an action against the
association in a district court in the county in which the loss that
is the subject of the coverage denial occurred. An action brought
under this subsection shall be presided over by a judge appointed by
the judicial panel on multidistrict litigation designated under
Section 74.161, Government Code. A judge appointed under this
section must be an active judge, as defined by Section 74.041,
Government Code, who is a resident of the county in which the loss
that is the basis of the disputed denied coverage occurred or of a
county adjacent to the county in which that loss occurred.
(f) If a claimant brings an action against the association
concerning a partial or full denial of coverage, the court shall
abate the action until the notice of intent to bring an action has
been provided and, if requested by the association, the dispute has
been submitted to alternative dispute resolution, in accordance
with this section.
(g) A moderated settlement conference under this section
may be conducted by a panel consisting of one or more impartial
third parties.
(h) If the association requests mediation under this
section, the claimant and the association are responsible in equal
shares for paying any costs incurred or charged in connection with
the mediation.
(i) If the association requests mediation under this
section, and the claimant and the association are able to agree on a
mediator, the mediator is the mediator agreed to by the claimant and
the association. If the claimant and the association are unable to
agree on a mediator, the commissioner shall select a mediator from a
roster of qualified mediators maintained by the department. The
department may:
(1) require mediators to register with the department
as a condition of being placed on the roster; and
(2) charge a reasonable registration fee to defray the
cost incurred by the department in maintaining the roster and the
commissioner in selecting a mediator under this subsection.
(j) The commissioner shall establish rules to implement
this section, including provisions for expediting alternative
dispute resolution, facilitating the ability of a claimant to
appear with or without counsel, establishing qualifications
necessary for mediators to be placed on the roster maintained by the
department under Subsection (i), and providing that formal rules of
evidence shall not apply to the proceedings.
Sec. 2211.176. ISSUES BROUGHT TO SUIT; LIMITATIONS ON
RECOVERY. (a) The only issues a claimant may raise in an action
brought against the association under Section 2211.175 are:
(1) whether the association's denial of coverage was
proper; and
(2) the amount of the damages described by Subsection
(b) to which the claimant is entitled, if any.
(b) Except as provided by Subsections (c) and (d), a
claimant that brings an action against the association under
Section 2211.175 may recover only:
(1) the covered loss payable under the terms of the
association policy less, if applicable, the amount of loss already
paid by the association for any portion of a covered loss for which
the association accepted coverage;
(2) prejudgment interest from the first day after the
date specified in Section 2211.1731 by which the association was or
would have been required to pay an accepted claim or the accepted
portion of a claim, at the prejudgment interest rate provided by
Subchapter B, Chapter 304, Finance Code; and
(3) court costs and reasonable and necessary
attorney's fees.
(c) Nothing in this chapter, including Subsection (b), may
be construed to limit the consequential damages, or the amount of
consequential damages, that a claimant may recover under common law
in an action against the association.
(d) A claimant that brings an action against the association
under Section 2211.175 may, in addition to the covered loss
described by Subsection (b)(1) and any consequential damages
recovered by the claimant under common law, recover damages in an
amount not to exceed the aggregated amount of the covered loss
described by Subsection (b)(1) and the consequential damages
recovered under common law if the claimant proves by clear and
convincing evidence that the association mishandled the claimant's
claim to the claimant's detriment by intentionally:
(1) failing to meet the deadlines or timelines
established under this subchapter without good cause, including the
applicable deadline established under Section 2211.1731 for
payment of an accepted claim or the accepted portion of a claim;
(2) failing to provide the notice required under
Section 2211.173(d);
(3) rejecting a claim without conducting a reasonable
investigation with respect to the claim; or
(4) denying coverage for a claim in part or in full if
the association's liability has become reasonably clear as a result
of the association's investigation with respect to the portion of
the claim that was denied.
(e) For purposes of Subsection (d), "intentionally" means
actual awareness of the facts surrounding the act or practice
listed in Subsection (d)(1), (2), (3), or (4), coupled with the
specific intent that the claimant suffer harm or damages as a result
of the act or practice. Specific intent may be inferred from
objective manifestations that the association acted intentionally
or from facts that show that the association acted with flagrant
disregard of the duty to avoid the acts or practices listed in
Subsection (d)(1), (2), (3), or (4).
Sec. 2211.177. LIMITATIONS PERIOD. (a) Notwithstanding
any other law, a claimant that brings an action against the
association under Section 2211.175 must bring the action not later
than the second anniversary of the date on which the person receives
a notice described by Section 2211.173(d)(2) or (3).
(b) This section is a statute of repose and controls over
any other applicable limitations period.
Sec. 2211.178. CONSTRUCTION WITH OTHER LAW. (a) To the
extent of any conflict between a provision of this subchapter and
any other law, the provision of this subchapter prevails.
(b) Notwithstanding any other law, the association may not
bring an action against a claimant, for declaratory or other
relief, before the 180th day after the date an appraisal under
Section 2211.174, or alternative dispute resolution under Section
2211.175, is completed.
Sec. 2211.179. RULEMAKING. (a) The commissioner shall
adopt rules regarding the provisions of this subchapter, including
rules concerning:
(1) qualifications and selection of appraisers for the
appraisal procedure and mediators for the mediation process;
(2) procedures and deadlines for the payment and
handling of claims by the association as well as the procedures and
deadlines for a review of a claim by the association; and
(3) any other matters regarding the handling of claims
that are not inconsistent with this subchapter.
(b) All rules adopted by the commissioner under this section
must promote the fairness of the process, protect the rights of
aggrieved policyholders, and ensure that policyholders may
participate in the claims review process without the necessity of
engaging legal counsel.
Sec. 2211.180. COMMISSIONER EXTENSION OF DEADLINES. (a)
The commissioner, on a showing of good cause, may extend any
deadline established under this subchapter.
(b) For the purposes of Subsection (a), "good cause"
includes military deployment.
Sec. 2211.181. OMBUDSMAN PROGRAM. (a) The department
shall establish an ombudsman program to provide information and
educational programs to assist persons insured under this chapter
with the claim processes under this subchapter.
(b) Not later than March 1 of each year, the department
shall prepare and submit to the commissioner a budget for the
ombudsman program, including approval of all expenditures incurred
in administering and operating the program. The commissioner shall
adopt or modify and adopt the budget not later than April 1 of the
year in which the budget is submitted.
(c) Not later than May 1 of each year, the association shall
transfer to the ombudsman program money in an amount equal to the
amount of the budget adopted under Subsection (b). The ombudsman
program, not later than April 30 of each year, shall return to the
association any unexpended funds that the program received from the
association in the previous year.
(d) The department shall, not later than the 60th day after
the date of a catastrophic event, as defined by the commissioner for
the purposes of this subsection, prepare and submit an amended
budget to the commissioner for approval and report to the
commissioner the approximate number of claimants eligible for
ombudsman services. The commissioner shall adopt rules as
necessary to implement an amended budget submitted under this
section, including rules regarding the transfer of additional money
from the association to the program.
(e) The ombudsman program may provide to persons insured
under this chapter information and educational programs through:
(1) informational materials;
(2) toll-free telephone numbers;
(3) public meetings;
(4) outreach centers;
(5) the Internet; and
(6) other reasonable means.
(f) The ombudsman program is administratively attached to
the department. The department shall provide the staff, services,
and facilities necessary for the ombudsman program to operate,
including:
(1) administrative assistance and service, including
budget planning and purchasing;
(2) personnel services;
(3) office space; and
(4) computer equipment and support.
(g) The ombudsman program shall prepare and make available
to each person insured under this chapter information describing
the functions of the ombudsman program.
(h) The association, in the manner prescribed by the
commissioner by rule, shall notify each person insured under this
chapter concerning the operation of the ombudsman program.
(i) The commissioner may adopt rules as necessary to
implement this section.
SECTION 5. (a) Except as otherwise specifically provided
by this section, this Act applies only to an insurance policy that
is delivered, issued for delivery, or renewed by the Fair Access to
Insurance Requirements Plan Association on or after the 60th day
after the effective date of this Act. An insurance policy that is
delivered, issued for delivery, or renewed by the Fair Access to
Insurance Requirements Plan Association before the 60th day after
the effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
(b) The deadline to file a claim under an insurance policy
delivered, issued for delivery, or renewed before the 60th day
after the effective date of this Act by the Fair Access to Insurance
Requirements Plan Association is governed by the law applicable to
the claim immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
(c) If a person insured by the Fair Access to Insurance
Requirements Plan Association disputes the amount the association
will pay for a partially or fully accepted claim filed by the
person, Section 2211.174, Insurance Code, as added by this Act,
applies only if the insurance policy under which the claim is filed
is delivered, issued for delivery, or renewed on or after the 60th
day after the effective date of this Act.
(d) If a person insured by the Fair Access to Insurance
Requirements Plan Association disputes the amount the association
will pay for a partially or fully accepted claim filed by the person
and the insurance policy under which the claim is filed is
delivered, issued for delivery, or renewed before the 60th day
after the effective date of this Act:
(1) Section 2211.174, Insurance Code, as added by this
Act, does not apply to the resolution of the dispute; and
(2) notwithstanding any other provision of this Act,
the claimant must attempt to resolve the dispute through any
appraisal process contained in the association policy under which
the claim is filed before an action may be brought against the Fair
Access to Insurance Requirements Plan Association concerning the
claim.
(e) The person insured by the Fair Access to Insurance
Requirements Plan Association and the association may agree that an
appraisal conducted under Subsection (d)(2) of this section is
binding on the parties.
(f) An action brought against the association concerning a
claim described by Subsection (d) of this section shall be abated
until the appraisal process under Subsection (d)(2) of this section
is completed.
(g) Notwithstanding Sections 2211.175 and 2211.176,
Insurance Code, as added by this Act, Subsection (b) of this
section, or any other provision of this Act, Sections 2211.176(b),
(c), (d), and (e), Insurance Code, apply to any cause of action that
accrues against the Fair Access to Insurance Requirements Plan
Association on or after the effective date of this Act and the basis
of which is a claim filed under an insurance policy that is
delivered, issued for delivery, or renewed by the association,
regardless of the date on which the policy was delivered, issued for
delivery, or renewed.
SECTION 6. 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, 2015.