By Counts                                             H.B. No. 2224
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the liquidation of insolvent insurers and the insurance
    1-3  guaranty associations.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Paragraph (a) of Section 2, Article 21.28,
    1-6  Insurance Code, is amended to read as follows:
    1-7        Receiver Taking Charge; Commissioner and Powers and Duties.
    1-8  Whenever under the law of this State a court of competent
    1-9  jurisdiction finds that a receiver should take charge of the assets
   1-10  of an insurer domiciled in this State, the commissioner of
   1-11  insurance or a person designated by the commissioner under contract
   1-12  shall act as receiver.  The receiver shall forthwith take
   1-13  possession of the assets of such insurer and deal with the same in
   1-14  the person's own name as receiver or in the name of the insurer as
   1-15  the court may direct.  The receiver has the powers specified in
   1-16  this code.  A person designated by the commissioner to act as
   1-17  special deputy receiver under contract is subject to the
   1-18  performance standards imposed by this subsection.  It is the intent
   1-19  of the legislature that continuous oversight of the special deputy
   1-20  receivers and guaranty associations shall be conducted by the
   1-21  commissioner.  The commissioner's oversight of the guaranty
   1-22  associations shall consist solely of the appointment of their
   1-23  boards of directors and approval of their plans of operation. The
    2-1  commissioner shall use a competitive bidding process in the
    2-2  selection of special deputy receivers and shall establish
    2-3  specifications for the position of special deputy receiver.  The
    2-4  special deputy receiver shall submit monthly written reports to the
    2-5  court and commissioner that state the special deputy receiver's
    2-6  business plan for the receivership, including expenses incurred in
    2-7  administering the receivership during the preceding month and an
    2-8  estimate of those expenses for the succeeding month.  The report
    2-9  must include a cost-benefit analysis on the expenditure of funds
   2-10  other than funds spent for the payment of claims.  The business
   2-11  plan report must include a budget of monthly expenses that explains
   2-12  any variation from the original projection.  The business plan
   2-13  report must include a list of any lawyers or law firms that offered
   2-14  to or did represent the special deputy receiver in relation to its
   2-15  duties under this article, and any hours billed or fees paid to a
   2-16  lawyer or law firm that represented the special deputy receiver.
   2-17  The special deputy receiver shall submit the business plan report
   2-18  to the attorney general on a quarterly basis, and the attorney
   2-19  general may make recommendations to the commissioner based on the
   2-20  report.  In addition to the business plan report, the special
   2-21  deputy receiver shall submit a monthly report to the commissioner
   2-22  relating to the special deputy receiver's activities in
   2-23  administering the receivership.  Upon written application by the
   2-24  special deputy receiver and with approval of the commissioner, the
   2-25  court may suspend the requirement for monthly reports or require
    3-1  reports less frequently based upon a showing that the costs of such
    3-2  reports exceeds the benefit derived from their filing.
    3-3  Closing
    3-4        SECTION 2.  Article 21.28, Insurance Code, is amended by
    3-5  adding the following Section 7A:
    3-6        Sec. 7A.  Early Access Distribution.
    3-7        (a)  Within 120 days of the commencement of the insolvency
    3-8  proceeding against an impaired insurer, the liquidator or a special
    3-9  deputy receiver appointed under this Article shall make application
   3-10  to the court for approval of a proposal to disburse assets out of
   3-11  marshaled assets, from time to time as such assets become
   3-12  available, to a guaranty association or foreign guaranty
   3-13  association having Class 1 or Class 2 claims against the estate of
   3-14  the impaired insurer because of such insolvency.  If the liquidator
   3-15  or special deputy receiver determines that there are insufficient
   3-16  assets to disburse, the application required by this section shall
   3-17  be considered satisfied by a filing by the liquidator or special
   3-18  deputy receiver stating the reasons for this determination.
   3-19        (b)  Such proposal shall, at a minimum, include provisions
   3-20  for:
   3-21              (1)  reserving amounts sufficient to allow the payment
   3-22  of Class 1 claims, and to the extent the assets of the insolvent
   3-23  insurer will allow any payment to be made on Class 2 claims,
   3-24  reserving amounts sufficient to provide equal pro-rata
   3-25  distributions to the Class 2 claimants other than the guaranty
    4-1  associations;
    4-2              (2)  disbursement of the assets marshaled to date and
    4-3  the subsequent distribution of assets as they become available;
    4-4              (3)  equitable allocation of disbursements to each of
    4-5  the guaranty associations and foreign guaranty associations
    4-6  entitled thereto;
    4-7              (4)  the securing of the liquidator or special deputy
    4-8  receiver from each of the associations entitled to disbursements
    4-9  pursuant to this section of an agreement to return to the
   4-10  liquidator such assets, together with income on assets previously
   4-11  disbursed, as may be required to pay Class 1 claimants and any
   4-12  federal claimants asserting priority claims.  No bond shall be
   4-13  required of any such association; and
   4-14              (5)  a full report to be made by each association to
   4-15  the liquidator or special deputy receiver, as requested by the
   4-16  liquidator or special deputy receiver, but no more frequently than
   4-17  quarterly, accounting for the assets so disbursed to the
   4-18  association, all disbursements made therefrom, any interest earned
   4-19  by the association on such assets and any other matter as the court
   4-20  may direct.
   4-21        (c)  The proposal submitted by the liquidator or special
   4-22  deputy receiver shall provide for disbursements to the associations
   4-23  in amounts estimated at least equal to the claim payments made or
   4-24  to be made thereby for which such associations could assert a claim
   4-25  against the liquidator, and shall further provide that if the
    5-1  assets available for disbursement from time to time do not equal or
    5-2  exceed the amount of such claim payments made or to be made by the
    5-3  association, then disbursements shall be made for the pro-rata
    5-4  amount of the association's Class 2 claim.
    5-5        (d)  The proposal submitted by the liquidator or special
    5-6  deputy receiver shall, with respect to an insolvent insurer writing
    5-7  life or health insurance or annuities, provide for disbursement of
    5-8  assets to any guaranty association or foreign guaranty association
    5-9  covering life or health insurance or annuities or to any other
   5-10  entity or organization reinsuring, assuming, or guaranteeing
   5-11  policies or contracts of insurance under the acts creating such
   5-12  associations.
   5-13        (e)  Notice of such application shall be given to the
   5-14  association in and to the commissioners of insurance of each of the
   5-15  states.  Any such notice shall be deemed to have been given when
   5-16  deposited in the United States certified mails, first class postage
   5-17  prepaid, at least 30 days prior to the submission of such
   5-18  application to the court.  Action of the application may be taken
   5-19  by the court provided the above required notice has been given and
   5-20  provided further the liquidator's or special deputy receiver's
   5-21  proposal complies with the requirements of this Section.
   5-22        SECTION 3.  Paragraph (a) of Section 8, Article 21.28,
   5-23  Insurance Code, is amended to read as follows:
   5-24        (a)  Priority of Distribution of Assets.  <Notwithstanding
   5-25  any other provision of law,> The priority of distribution of assets
    6-1  from the insurer's estate shall be in accordance with the
    6-2  disbursement plan approved by the court pursuant to Section 7A of
    6-3  this Article, and in accordance with the  order of each class as
    6-4  provided by this subsection.  Every claim in each class shall be
    6-5  paid in full or adequate funds retained for such payment before the
    6-6  members of the next class receive any payment.  No subclasses shall
    6-7  be established within any class.  <Additional subclasses may not be
    6-8  established within any class.>
    6-9        (The remainder of the Paragraph is unchanged.)
   6-10        SECTION 4.  Section 9, Article 21.28, Insurance Code is
   6-11  amended to read as follows:
   6-12        (a)  Excess Assets--Stock Companies.  When the receiver shall
   6-13  have made provision for unclaimed dividends and all of the
   6-14  liabilities of a stock insurance company, he shall call a meeting
   6-15  of the stockholders of the insurer by giving notice thereof in one
   6-16  (1) or more newspapers in the county where the principal office of
   6-17  the insurer was located, and by written notice to the stockholders
   6-18  of record at their last known address.  At such meeting, the
   6-19  stockholders shall appoint an agent or agents to take over the
   6-20  affairs to continue the liquidation for benefit of the
   6-21  stockholders.  Voting privileges shall be governed by the insurer's
   6-22  bylaws.  A majority of the stock shall be represented at the
   6-23  agent's appointment.  Such agent or agents shall execute and file
   6-24  with the court such bond or bonds as shall be approved by it,
   6-25  conditioned on the faithful performance of all the duties of the
    7-1  trust.  Under order of the court the receiver shall then transfer
    7-2  and deliver to such agent or agents for continued liquidation under
    7-3  the court's supervision all assets of insurer remaining in his
    7-4  hands, whereupon the receiver and the Board, and each member and
    7-5  employee thereof, shall be discharged from any further liability to
    7-6  such insurer and its creditors and stockholders; provided, however,
    7-7  that nothing herein contained shall be so construed as to permit
    7-8  the insurer to continue in business as such, but the charter of
    7-9  such insurer and all permits and licenses issued thereunder or in
   7-10  connection therewith shall be ipso facto revoked and annulled by
   7-11  such order of the court directing the receiver to transfer and
   7-12  deliver the remaining assets of such insurer to such agent or
   7-13  agents.
   7-14        (b)  Excess Assets--Other Companies.  After the receiver
   7-15  shall have made provision for unclaimed dividends and all of the
   7-16  liabilities of any insurer other than a stock insurance company, he
   7-17  shall dispose of any remaining assets as directed by the
   7-18  receivership court.
   7-19        (c)  Notwithstanding any other provisions of this article in
   7-20  closing an estate, a special deputy receiver, upon approval of the
   7-21  court, may transfer any remaining assets, causes of action asserted
   7-22  on behalf of the impaired insurer, judgment, claims, or liens to
   7-23  the appropriate guaranty association and such transfer shall not be
   7-24  a preference or avoidable transfer but shall be considered a
   7-25  distribution under Section 8(a)1.  In the event the sum realized by
    8-1  the guaranty association is materially larger than the amount
    8-2  loaned to the estate by the guaranty association, the court may
    8-3  order reopening of the estate to disburse the excess funds.
    8-4  Nothing in this section shall be construed as a transfer of any
    8-5  liability of an impaired insurer to the guaranty association that
    8-6  would not constitute a claim payable under Articles 9.48, 21.28-C
    8-7  or 21.28-D of the Insurance Code.
    8-8        (d)  Limitation.  Except as otherwise provided by this
    8-9  subsection, each receivership or other delinquency proceeding
   8-10  prescribed by this Article shall be administered in accordance with
   8-11  Section 64.072, Civil Practice and Remedies Code.  To the extent a
   8-12  receivership or delinquency proceeding initiated against an insurer
   8-13  applies to claims against a workers' compensation insurance policy
   8-14  or a title insurance policy, the receivership or delinquency
   8-15  proceeding shall be administered continuously for whatever length
   8-16  of time is necessary to effectuate its purposes, and no arbitrary
   8-17  period prescribed elsewhere by the laws of Texas limiting the time
   8-18  for the administration of receiverships or of corporate affairs
   8-19  generally shall be applicable thereto.  Instead of the winding up
   8-20  and distribution of a receivership estate of an insurer without
   8-21  capital stock, the court shall order revival and reinstatement of
   8-22  the charter, permits, licenses, franchises, and management
   8-23  contracts or other control instruments of the insurer if the
   8-24  insurer's remaining cash on hand and on deposit, less any
   8-25  outstanding valid and enforceable liabilities, exceeds the minimum
    9-1  amount of capital and surplus prescribed for that insurer under
    9-2  Article 2.02 or Section 1 of Article 3.02 of this code.
    9-3        (e)  Reopening.  If after the receivership shall have been
    9-4  closed by final order of the court, the liquidator shall discover
    9-5  assets not known to him during receivership, he shall report his
    9-6  findings to the court.  It shall be within the discretion of the
    9-7  court as to whether the value of the after-discovered assets shall
    9-8  justify the reopening of the receivership for continued
    9-9  liquidation.
   9-10        SECTION 5.  Paragraph (d) of Section 11, Art. 21.28,
   9-11  Insurance Code is amended to read as follows:
   9-12        Maintenance of Records.  The receiver may devise a method for
   9-13  the effective, efficient, and economical maintenance of the records
   9-14  of the delinquent insurer and of the liquidator's office including
   9-15  maintaining those records on any medium approved by the Records
   9-16  Management Division of the Texas State Library.  A copy of an
   9-17  original record or any other record that is maintained on any
   9-18  medium approved by the Records Management Division of the Texas
   9-19  State Library within the scope of this section that is produced by
   9-20  the receiver or his authorized representative under this Article
   9-21  shall have the same force and effect as the original record and may
   9-22  be used the same as the original record in any judicial or
   9-23  administrative proceeding in this state.
   9-24        In order to maintain the records of delinquent insurers after
   9-25  the closing of the receivership proceedings, the receiver may
   10-1  reserve assets of an estate to be deposited in an account to be
   10-2  used for the specific purpose of maintenance, storage and disposal
   10-3  of records in closed receivership estates.  <If the need exists for
   10-4  the continued maintenance of any records of a delinquent insurer
   10-5  after the closing of the receivership proceedings, the receiver may
   10-6  reserve sufficient assets, including cash, to be transferred to the
   10-7  liquidator on closing of the receivership for the specific purpose
   10-8  of meeting the reasonable cost of maintaining those records.>
   10-9        SECTION 6.  Section 3, Article 21.28-C, Insurance Code, is
  10-10  amended to read as follows:
  10-11        This Act applies to all kinds of direct insurance, but except
  10-12  where indicated elsewhere in this Act is not applicable to the
  10-13  following:
  10-14              (1)  life, annuity, health, or disability insurance;
  10-15              (2)  mortgage guaranty, financial guaranty, or other
  10-16  forms of insurance offering protection against investment risks;
  10-17              (3)  fidelity or surety bonds, or any other bonding
  10-18  obligations;
  10-19              (4)  credit insurance, vendors' single-interest
  10-20  insurance, collateral protection insurance, or any similar
  10-21  insurance protecting the interests of a creditor arising out of a
  10-22  creditor-debtor transaction;
  10-23              (5)  insurance of warranties or service contracts;
  10-24              (6)  title insurance;
  10-25              (7)  ocean marine insurance;
   11-1              (8)  any transactions or combination of transactions
   11-2  between a person, including an affiliate of such a person, and an
   11-3  insurer, including an affiliate of such an insurer, that involves
   11-4  the transfer of investment or credit risk unaccompanied by the
   11-5  transfer of insurance risk; or
   11-6              (9)  any insurance provided by or guaranteed by
   11-7  government.
   11-8        SECTION 7.  Paragraph (8) of Section 5, Article 21.28-C,
   11-9  Insurance Code, is amended to read as follows:
  11-10              (8)  "Covered claim" means an unpaid claim of an
  11-11  insured or third-party liability claimant that arises out of and is
  11-12  within the coverage and not in excess of the applicable limits of
  11-13  an insurance policy to which this Act applies, issued or assumed
  11-14  (whereby an assumption certificate is issued to the insured) by an
  11-15  insurer licensed to do business in this state, if that insurer
  11-16  becomes impaired and the third-party claimant or liability claimant
  11-17  or insured is a resident of this state at the time of the insured
  11-18  event, or the property from which the claim arises is permanently
  11-19  located in this state.  "Covered claim" shall also include 75
  11-20  percent of unearned premiums, but in no event shall a covered claim
  11-21  for unearned premiums, including any such claim arising from a
  11-22  workers' compensation policy, exceed $1,000.  Individual covered
  11-23  claims (including any and all derivative claims by more than one
  11-24  person which arise from the same occurrence, which shall be
  11-25  considered collectively as a single claim under this Act) shall be
   12-1  limited to $100,000, except that the association shall pay the full
   12-2  amount of any covered claim arising out of a workers' compensation
   12-3  claim made under a workers' compensation policy.  For purposes of
   12-4  this Act, any claim made for recovery of attorneys fees under a
   12-5  policy, regardless of whether such claim is presented together with
   12-6  or separately from a claim for policy benefits, shall be considered
   12-7  as part of the claim under the policy and not as a separate
   12-8  "Covered claim."  "Covered claim" shall not include any amount
   12-9  sought as a return of premium under a retrospective rating plan; or
  12-10  any amount due any reinsurer, insurer, insurance pool, or
  12-11  underwriting association, as subrogation recoveries or otherwise.
  12-12  "Covered claim" shall not include supplementary payment
  12-13  obligations, including adjustment fees and expenses, attorney's
  12-14  fees and expenses, court costs, interest and penalties, and
  12-15  interest and bond premiums incurred prior to the determination that
  12-16  an insurer is an impaired insurer under this Act.  "Covered claim"
  12-17  shall not include any prejudgment or postjudgment interest which
  12-18  accrues subsequent to the determination that an insurer is an
  12-19  impaired insurer under this Act.  "Covered claim" shall not include
  12-20  any claim for recovery of punitive, exemplary, extracontractual, or
  12-21  bad-faith damages, whether sought as a recovery against the
  12-22  insured, the insurer, or the association awarded in a court
  12-23  judgment against an insured or insurer.  "Covered claim" shall not
  12-24  include, and the association shall not have any liability to an
  12-25  insured or third-party liability claimant, for its failure to
   13-1  settle a liability claim within the limits of a covered claim under
   13-2  this Act.  With respect to a covered claim for unearned premiums,
   13-3  both persons who were residents of this state at the time the
   13-4  policy was issued and persons who are residents of this state at
   13-5  the time the company is found to be an impaired insurer shall be
   13-6  considered to have covered claims under this Act.  If the impaired
   13-7  insurer has insufficient assets to pay the expenses of
   13-8  administering the receivership or conservatorship estate, the
   13-9  portion of the expenses of administration incurred in the
  13-10  processing and payment of claims against the estate shall also be a
  13-11  covered claim under this Act.
  13-12        SECTION 8.  Paragraph (9) of Section 5, Article 21.28-C,
  13-13  Insurance Code, is amended to read as follows:
  13-14              (9)  "Impaired insurer" means:
  13-15                    (A)  a member insurer that is placed in temporary
  13-16  or permanent receivership under an order of a court of competent
  13-17  jurisdiction, including the Courts of any other State, based on a
  13-18  finding of insolvency and that has been designated an impaired
  13-19  insurer by the commissioner; or
  13-20                    (B)  a member insurer placed in conservatorship
  13-21  after it has been determined by the commissioner to be insolvent
  13-22  and that has been designated an impaired insurer by the
  13-23  commissioner.
  13-24        SECTION 9.  Paragraph (d) of Section 7, Article 21.28-C,
  13-25  Insurance Code, is amended to read as follows:
   14-1        (d)  A public representative may not be:
   14-2              (1)  an officer, director, or employee of an insurance
   14-3  company, insurance agency, agent, broker, solicitor, adjuster, or
   14-4  any other business entity regulated by the Texas Department of
   14-5  Insurance;
   14-6              (2)  a person required to register with the secretary
   14-7  of state under Chapter 305, Government Code in connection with
   14-8  their representation of clients in the field of insurance; or
   14-9              (3)  related to a person described by Subdivision (1)
  14-10  or (2) of this subsection within the second degree of affinity or
  14-11  consanguinity.
  14-12        SECTION 10.  Paragraph (b) of Section 8, Article 21.38-C.,
  14-13  Insurance Code, is amended to read as follows:
  14-14        <The association is considered the insurer to the extent of
  14-15  its obligation on the covered claims and to that extent has all
  14-16  rights, duties, and obligations of the impaired insurer as if the
  14-17  insurer had not become impaired.>
  14-18        The association shall undertake to discharge the policy
  14-19  obligations of the impaired insurer, including the duty to defend
  14-20  insureds under a liability policy, to the extent that such policy
  14-21  obligations are covered claims under this Act.  In performing its
  14-22  statutory obligations, the association may also enforce any duty
  14-23  imposed on the insured party or beneficiary under the terms of any
  14-24  policy of insurance within the scope of this Act.  In performing
  14-25  its statutory obligations under this Act, the association shall not
   15-1  be considered to be in the business of insurance, shall not be
   15-2  considered to have assumed or succeeded  to any liabilities of the
   15-3  impaired insurer, and shall not be considered to otherwise stand in
   15-4  the shoes of the impaired insurer for any purpose, including but
   15-5  not limited to the issue of whether the association is amenable to
   15-6  the personal jurisdiction of the Courts of any other State.
   15-7        SECTION 11.  Paragraph (d) of Section 8, Article 21.28-C,
   15-8  Insurance Code, is amended to read as follows:
   15-9        (1)  General Provisions.  The association shall investigate
  15-10  claims brought against the association, and the association may
  15-11  investigate claims brought against the impaired insurer, any person
  15-12  named as an insured under a liability policy issued by the impaired
  15-13  insurer, the commissioner, or a special deputy receiver appointed
  15-14  pursuant to Article 21.28 of this Code if such claims involve or
  15-15  may involve the association's rights and obligations under this
  15-16  Act, and shall adjust, compromise, settle, and pay covered claims
  15-17  to the extent of the association's obligation and deny all other
  15-18  claims.  The association may review settlements, releases, and
  15-19  judgments to which the impaired insurer or its insureds were
  15-20  parties to determine the extent to which those settlements,
  15-21  releases, and judgments may be properly contested.  Any judgment
  15-22  taken by default or consent against an insured or the impaired
  15-23  insurer, and any settlement, release or judgment entered into by
  15-24  the insured or the impaired insurer, shall not be considered to be
  15-25  binding upon the association, and shall not be considered as
   16-1  evidence of liability or of damages in connection with any claim
   16-2  brought against the association or any other party under this Act.
   16-3        Notwithstanding any other provision of this Act, a covered
   16-4  claim shall not include any claim filed with the guaranty
   16-5  association after the earlier of the final date for filing claims
   16-6  against the liquidator or receiver of an insolvent insurer, or
   16-7  eighteen months after the order of liquidation.
   16-8              (2)  Claims Procedures.  Claims under this Act, or
   16-9  against person insured under a liability policy issued by an
  16-10  impaired insurer subject to this Act, shall be made in accordance
  16-11  with the following procedures:
  16-12                          (i)  Liability Claims Against Insureds.
  16-13  Subject to the provisions of Section 17 of this Act, a third-party
  16-14  liability claimant may assert claims persons insured under a
  16-15  liability policy issued by an impaired insurer in the same manner
  16-16  as if the insurer not become impaired.  The tender of a defense by
  16-17  the association to an insured under a liability policy issued by an
  16-18  impaired insurer shall not operate as a waiver of any of the
  16-19  provisions of this Act which would limit the liability of the
  16-20  association, but the association shall notify the insured of any
  16-21  reservation of rights under the terms of the policy issued by the
  16-22  impaired insurer.  Any issues relating to the association's
  16-23  obligations under this act or under an insurance policy issued by
  16-24  the impaired  insurer shall not be determined in a suit brought
  16-25  against an insured.  Evidence that a person is or is not be
   17-1  entitled to indemnity by the association under this Act is not
   17-2  admissible unless such evidence would have been properly admissible
   17-3  against the impaired insurer under Rule 411 of the Texas Rules of
   17-4  Evidence.
   17-5                          (ii)  First-Party Claims and Claims
   17-6  relating to Association's Rights and Obligations.  For purposes of
   17-7  this Section, a "First-Party or Coverage Claim" shall include:  1)
   17-8  any direct claim against the association by an insured,
   17-9  policyholder or beneficiary of a policy issued by an impaired
  17-10  insurer and under which the insurer was obligated to pay the person
  17-11  directly; and 2) any claim by an insured or policyholder, relating
  17-12  to the association's rights and obligations under this Act or under
  17-13  an insurance policy issued by the impaired insurer.  Any person
  17-14  making a First-Party or Coverage Claim under this Act shall deliver
  17-15  to the association a written statement reasonably apprising the
  17-16  association of the facts which form the basis of the claim.  The
  17-17  association may, but is not required to, accept for processing any
  17-18  such written notice filed with the impaired insurer and contained
  17-19  in the claim files provided to the association.  The claimant shall
  17-20  also specify an address to which any correspondence or other
  17-21  notices may be sent to the claimant by mail, and shall promptly
  17-22  advise the association in writing of any change of address while
  17-23  the claim is pending.  In addition, the claimant shall provide the
  17-24  association with such additional information relating to the claim
  17-25  as is requested in writing by the association.
   18-1        The association shall notify each first-party or coverage
   18-2  claimant, at the address specified by the claimant, of its
   18-3  acceptance or rejection of a claim, and if the claim has been
   18-4  accepted, the amount for which the claim has been accepted by the
   18-5  association.  The claimant may appeal the association's
   18-6  determination of the validity, nature and amount of the claim by
   18-7  filing an action against the association in any District Court of
   18-8  Travis County for the recovery of a covered claim under this Act.
   18-9  The association may be served with citation by serving its
  18-10  executive director at the association's principal place of business
  18-11  in Travis County.  Such an appeal shall be filed within one year of
  18-12  the date the association's notice of its acceptance or rejection of
  18-13  the claim was delivered to the address specified by the claimant,
  18-14  whether or not such notice was actually received by the claimant.
  18-15  An action filed under this Act shall be de novo, as if originally
  18-16  filed in said court and subject to the Texas Rules of Civil
  18-17  Procedure.
  18-18                          (iii).  Workers' Compensation Claim.
  18-19  Claims for benefits under the Workers' Compensation Act shall be
  18-20  made in accordance with the provisions of the Workers' Compensation
  18-21  Act, except that the venue of all workers' compensation claims
  18-22  against the association shall be Travis County, Texas.  The
  18-23  association shall not be subject to any administrative fines or
  18-24  penalties under the Workers' Compensation Act.
  18-25        SECTION 12.  Paragraph (h) of Section 8, Article 21.28-C,
   19-1  Insurance Code, is amended to read as follows:
   19-2        The association may:
   19-3              (1)  employ or retain persons as necessary to handle
   19-4  claims and perform other duties of the association;
   19-5              (2)  borrow funds necessary to implement this Act in
   19-6  accordance with the plan of operation;
   19-7              (3)  sue or be sued;
   19-8              (4)  negotiate and become a party to contracts as
   19-9  necessary to implement this Act, including lump-sum or structured
  19-10  compromise and settlement agreements with claimants who have claims
  19-11  for medical and/or indemnity benefits for a period of three years
  19-12  or more.
  19-13              (5)  perform other acts as necessary or proper to
  19-14  implement this Act; or
  19-15              (6)  refund to the member insurers in proportion to the
  19-16  contribution of each member insurer of the association that amount
  19-17  by which the assets of the association exceed the liabilities, if
  19-18  at the end of any calendar year the board of directors finds that
  19-19  the assets of the association exceed the liabilities of the
  19-20  association as estimated by the board of directors for the coming
  19-21  year.
  19-22        SECTION 13.  Paragraph (i) of Section 8, Article 21.28-C,
  19-23  Insurance Code, is repealed.
  19-24        SECTION 14.  Paragraph (e) of Section 9, Article 21.28-C,
  19-25  Insurance Code, is amended to read as follows:
   20-1        <Notice of claims to the receiver of the impaired insurer
   20-2  constitutes notice to the association or its agent.>  A list of
   20-3  claims shall be submitted periodically to the association or
   20-4  similar organization in another state by the receiver.
   20-5        SECTION 15.  Paragraph (a) of Section 11, Article 21.28-C,
   20-6  Insurance Code, is amended to read as follows:
   20-7        A person recovering under this Act is considered to have
   20-8  assigned to the association the person's right under the policy,
   20-9  and the person's rights to recover for the occurrence made the
  20-10  basis of the claim under this Act under any policy of insurance
  20-11  issued by an unimpaired insurer <to the association> to the extent
  20-12  of the person's recovery from the association.  The association may
  20-13  pursue any such claims to which it is subrogated under this
  20-14  provision in its own name or in the name of the person recovering
  20-15  under this Act.
  20-16        SECTION 16.  Paragraph (a) of Section 12, Article 21.28-C,
  20-17  Insurance Code, is amended to read as follows:
  20-18        A person who has a claim against an insurer under any
  20-19  provision in an insurance policy other than a policy of an impaired
  20-20  insurer that is also a covered claim shall exhaust first the
  20-21  person's rights under the policy, including but not limited to any
  20-22  claim for indemnity or medical benefits under any workers'
  20-23  compensation, health, disability, uninsured motorist, personal
  20-24  injury protection, medical payment, liability, or other policy.
  20-25  <Any amount payable on a covered claim under this Act shall be
   21-1  reduced by the amount of any recovery under the insurance policy.>
   21-2  The association shall have a credit or setoff against any amount of
   21-3  benefits which would otherwise by payable by the association to the
   21-4  claimant under this Act, in the amount of the claimant's recovery
   21-5  under any policy issued by an unimpaired insurer.  Subject to the
   21-6  provisions of subsections (1) and (2) below, the association's
   21-7  credit or setoff under this Section shall be deducted from damages
   21-8  incurred by the claimant, and the remaining sum shall be the
   21-9  maximum amount payable by the association, except that the
  21-10  association's liability shall not exceed $100,000 or the limits of
  21-11  the policy under which the claim is made, whichever is less.
  21-12              (1)  Notwithstanding the foregoing, if a claimant is
  21-13  seeking recovery of policy benefits that, but for the insolvency of
  21-14  the impaired insurer, would be subject to lien or subrogation by a
  21-15  workers' compensation insurer, health insurer or any other insurer,
  21-16  whether impaired or not, then the association's credit or offset
  21-17  shall be deducted from the damages incurred by the claimant or the
  21-18  limits of the policy under which the claim is made, whichever is
  21-19  less.
  21-20              (2)  In no event shall a claimant's recovery under this
  21-21  Act result in a total recovery to the claimant that is greater than
  21-22  that which would have resulted but for the insolvency of the
  21-23  impaired insurer.  Subject to Section 5(8) of this Act, a
  21-24  claimant's recovery under this Act shall not result in a recovery
  21-25  to the claimant that is less than that which would have resulted
   22-1  but for the insolvency of the impaired insurer.
   22-2        SECTION 17.  Paragraph (b) of Section 12, Article 21.28-C,
   22-3  Insurance Code, is amended to read as follows:
   22-4        A person who has a claim that may be recovered under more
   22-5  than one insurance guaranty association or its equivalent shall
   22-6  seek recovery first from the association of the place of residence
   22-7  of the insured, except that if it is a first-party claim for damage
   22-8  to property with a permanent location, the person shall seek
   22-9  recovery first from the association of the location of the
  22-10  property, and if it is a workers' compensation claim the person
  22-11  shall seek recovery first from the association of the residence of
  22-12  the claimant.  <Any recovery under this Act shall be reduced by the
  22-13  amount of recovery from any other insurance guaranty association or
  22-14  its equivalent.>  The Association shall have a credit or setoff
  22-15  against any amount of benefits under this Act, in the amount of the
  22-16  claimant's recovery from the guaranty association or equivalent.
  22-17  Subsection to the provisions of subsections (1) and (2) below, the
  22-18  association's credit of setoff under this Section shall be deducted
  22-19  from the damages incurred by the claimant, and the remaining sum
  22-20  shall be the maximum amount payable by the association, except that
  22-21  the association's liability shall not exceed $100,000 or the limits
  22-22  of the policy under which the claim is made, whichever is less.
  22-23              (2)  In no event shall a claimant's recovery under this
  22-24  Act result in a total recovery to the claimant that is greater than
  22-25  that which would have resulted but for the insolvency of the
   23-1  impaired insurer.  Subject to Section 5(8) of this Act, a
   23-2  claimant's recovery under this Act shall not result in a recovery
   23-3  to the claimant that is less than that which would have resulted
   23-4  but for the insolvency of the impaired insurer.
   23-5        SECTION 18.  Section 13, Article 21.28-C, Insurance Code, is
   23-6  repealed.
   23-7        SECTION 19.  Section 14, Article 21.28-C, Insurance Code, is
   23-8  amended to read as follows:
   23-9        <The association shall be subject to examination and
  23-10  regulation by the commissioner in the same manner as other insurers
  23-11  under this code.>  Not later than March 30 of each year, the
  23-12  association <board of directors> shall submit an audited financial
  23-13  statement <a financial report> for the preceding calendar year. <in
  23-14  a form approved by the commissioner.>
  23-15        SECTION 20.  Paragraph (a) of Section 16, Article 21.28-C,
  23-16  Insurance Code, is amended to read as follows:
  23-17        There is no liability on the part of, and no cause of a
  23-18  action of any nature arises against, any member insurer, the
  23-19  association or its agents or employees, the board of directors,
  23-20  special deputy receiver or its agents or employees, or the
  23-21  commissioner or the commissioner's representatives for any <good
  23-22  faith> act or failure to act in the performance of powers and
  23-23  duties under this Act.
  23-24        SECTION 21.  Section 17, Article 21.28-C, Insurance Code, is
  23-25  amended to read as follows:
   24-1        All proceedings in which an impaired insurer is a party or is
   24-2  obligated to defend a party in any court in this state, except
   24-3  proceedings directly related to the receivership or instituted by
   24-4  the receiver, shall be stayed for six months and any additional
   24-5  time thereafter as may be determined by the court from the date of
   24-6  the designation of impairment or an ancillary proceeding is
   24-7  instituted in the state, whichever is later, to permit proper
   24-8  defense by the receiver or the association of all pending causes of
   24-9  action.  As to any covered claims arising from a judgment under any
  24-10  decision, verdict, or finding based on the default of the impaired
  24-11  insurer or its failure to defend an insured, the association either
  24-12  on its own behalf or on behalf of the insured <may apply> shall be
  24-13  entitled, upon application, to have the judgment, order, decision,
  24-14  verdict, or finding set aside by the same court or administrator
  24-15  that made the judgment, order, decision, verdict, or finding and
  24-16  shall be permitted to defend the claim on the merits.
  24-17        SECTION 22.  Paragraph (b) of Section 1.27 of Acts 1991, 72nd
  24-18  Legislature, Second Called Session, Chapter 12, is amended to read
  24-19  as follows:
  24-20        A guaranty association established under Article 9.48,
  24-21  21.28-C, or 21.28-D, Insurance Code, may elect to assume its
  24-22  responsibilities under this Act in proceedings initiated before
  24-23  January 1, 1992.  A proceeding covered by such an election is
  24-24  subject to Article 9.48, 21.28-C, or 21.28-D, as appropriate, as
  24-25  amended by this article.  On and after September 1, 1994, the
   25-1  appropriate guaranty association shall assume its responsibilities
   25-2  under Article 9.48, 21.28-C, or 21.28-D, Insurance Code, as amended
   25-3  by this article, in any proceeding pending on that date that was
   25-4  initiated under Article 9.48, 21.28-C, or 21.28-D, Insurance Code.
   25-5  Provided however, that any such assumption of responsibilities by
   25-6  the Texas Property and Casualty Insurance Guaranty Association
   25-7  shall not affect the substantive law governing the rights of
   25-8  policyholders and claimants asserting claims under Article 21.28-C,
   25-9  Insurance Code, which rights shall be governed by the law in effect
  25-10  as of the date of commencement of the delinquency proceeding
  25-11  against the insolvent insurer, and the former law is continued in
  25-12  effect for that purpose.  After assuming its responsibilities under
  25-13  Art. 21.28-C, Insurance Code, as amended by this Act, the Texas
  25-14  Property and Casualty Insurance Guaranty Association may approve,
  25-15  compromise, settle, or reject claims filed against the Receiver
  25-16  which are asserted to be covered claims under Article 21.28-C, and
  25-17  may intervene in any litigation arising from the Receiver's
  25-18  rejection of any such claims.  By assuming its responsibilities,
  25-19  the Texas Property and Casualty Insurance Guaranty Association does
  25-20  not assume any liabilities of the Receiver which are not covered
  25-21  claims as defined in Article 21.28-C, Insurance Code, as of the
  25-22  date of commencement of the delinquency proceeding against the
  25-23  insolvent insurer.
  25-24        SECTION 23.  Article 21.28-C, Insurance Code, is amended by
  25-25  adding the following Section 24:
   26-1        Sec. 24.  The association, its employees and board of
   26-2  directors are not required to register with the secretary of state
   26-3  pursuant to Art. 1.06-D, Insurance Code.
   26-4        SECTION 24.  Article 21.28-C, Insurance Code, is amended by
   26-5  adding the following Section 25:
   26-6        Sec. 25.  Controlling Law.  In the event of a conflict
   26-7  between this Act and any other statutory provisions relating to the
   26-8  association, the provisions of this Act will control.
   26-9        SECTION 25.  Subject to the continuation of the former law
  26-10  pursuant to Section 19 of this Act, this Act takes effect on
  26-11  September 1, 1993.
  26-12        SECTION 26.  The importance of this legislation and the
  26-13  crowded condition of the calendars in both houses create an
  26-14  emergency and an imperative public necessity that the
  26-15  constitutional rule requiring bills to be read on three several
  26-16  days in each house be suspended, and this rule is hereby suspended.
  26-17        SECTION 27.  Any laws or portions of laws in conflict with
  26-18  this Act are hereby repealed.