74R11059 DLF-F
By Junell, Hunter of Nueces, Duncan, et al. H.B. No. 668
Substitute the following for H.B. No. 668:
By Seidlits C.S.H.B. No. 668
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil remedies for deceptive trade practices and
1-3 certain related consumer claims.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 17.42, 17.43, and 17.44, Business &
1-6 Commerce Code, are amended to read as follows:
1-7 Sec. 17.42. WAIVERS: PUBLIC POLICY. (a) Any waiver by a
1-8 consumer of the provisions of this subchapter is contrary to public
1-9 policy and is unenforceable and void; provided, however, that a
1-10 waiver is valid and enforceable if a defendant in an action or
1-11 claim under this subchapter pleads and proves:
1-12 (1) the waiver is in writing;
1-13 (2) the consumer is not in a significantly disparate
1-14 bargaining position; and
1-15 (3) <(2)> the consumer is represented by legal counsel
1-16 in seeking or acquiring the goods or services<, other than the
1-17 purchase or lease of a family residence occupied or to be occupied
1-18 as the consumer's residence, by a purchase or a lease for a
1-19 consideration paid or to be paid that exceeds $500,000; and>
1-20 <(3) the consumer waives all or part of this
1-21 subchapter, other than Section 17.555, by an express provision in a
1-22 written contract signed by both the consumer and the consumer's
1-23 legal counsel; and provided, however, that a business consumer with
1-24 assets of $5 million or more according to the most recent financial
2-1 statement of the business consumer prepared in accordance with
2-2 generally accepted accounting principles that has knowledge and
2-3 experience in financial and business matters that enable it to
2-4 evaluate the merits and risks of a transaction and that is not in a
2-5 significantly disparate bargaining position may by written contract
2-6 waive the provisions of this subchapter, other than Section
2-7 17.555>.
2-8 (b) A waiver under Subsection (a) is not effective if the
2-9 consumer's legal counsel was directly or indirectly identified,
2-10 suggested, or selected by a defendant or an agent of the defendant
2-11 <The existence or absence of a disparate bargaining position may
2-12 not be established as a matter of law solely by evidence of the
2-13 consumer's financial position relative to other parties to the
2-14 contract or by matters contained in a written contract relating to
2-15 the relative bargaining position of the parties>.
2-16 (c) A waiver under this section must be:
2-17 (1) conspicuous and in bold-face type of at least 10
2-18 points in size;
2-19 (2) identified by the heading "Waiver of Consumer
2-20 Rights," or words of similar meaning; and
2-21 (3) in substantially the following form:
2-22 "I waive my rights under the Deceptive Trade
2-23 Practices-Consumer Protection Act, Section 17.41, et
2-24 seq., Business & Commerce Code, a law that gives
2-25 consumers special rights and protections. After
2-26 consultation with an attorney of my own selection, I
2-27 voluntarily consent to this waiver."
3-1 (d) The waiver required by Subsection (c) may be modified to
3-2 waive only specified rights under this subchapter.
3-3 (e) The fact that a consumer has signed a waiver under this
3-4 section is not a defense to an action brought by the attorney
3-5 general under Section 17.47.
3-6 Sec. 17.43. CUMULATIVE REMEDIES. The provisions of this
3-7 subchapter are not exclusive. The remedies provided in this
3-8 subchapter are in addition to any other procedures or remedies
3-9 provided for in any other law; provided, however, that no recovery
3-10 shall be permitted under both this subchapter and another law of
3-11 both <actual> damages and penalties for the same act or practice.
3-12 A violation of a provision of law other than this subchapter is not
3-13 in and of itself a violation of this subchapter. An act or
3-14 practice that is a violation of a provision of law other than this
3-15 subchapter may be made the basis of an action under this subchapter
3-16 if the act or practice is proscribed by a provision of this
3-17 subchapter or is declared by such other law to be actionable under
3-18 this subchapter. The provisions of this subchapter do not in any
3-19 way preclude other political subdivisions of this state from
3-20 dealing with deceptive trade practices.
3-21 Sec. 17.44. CONSTRUCTION AND APPLICATION. (a) This
3-22 subchapter shall be liberally construed and applied to promote its
3-23 underlying purposes, which are to protect consumers against false,
3-24 misleading, and deceptive business practices, unconscionable
3-25 actions, and breaches of warranty and to provide efficient and
3-26 economical procedures to secure such protection.
3-27 (b) Chapter 27, Property Code, prevails over this subchapter
4-1 to the extent of any conflict.
4-2 SECTION 2. Section 17.45, Business & Commerce Code, is
4-3 amended by amending Subdivision (9) and adding Subdivisions (11)
4-4 and (12) to read as follows:
4-5 (9) "Knowingly" means actual awareness of the falsity,
4-6 deception, or unfairness of the act or practice giving rise to the
4-7 consumer's claim or, in an action brought under Subdivision (2) of
4-8 Subsection (a) of Section 17.50, actual awareness of the act, <or>
4-9 practice, condition, defect, or failure constituting the breach of
4-10 warranty, but actual awareness may be inferred where objective
4-11 manifestations indicate that a person acted with actual awareness.
4-12 (11) "Economic damages" means compensatory damages
4-13 for pecuniary loss, including costs of repair and replacement. The
4-14 term does not include exemplary damages or damages for physical
4-15 pain and mental anguish, loss of consortium, disfigurement,
4-16 physical impairment, or loss of companionship and society.
4-17 (12) "Waiver" means any conduct or any oral or written
4-18 statement that purports to extinguish, limit, or adversely affect
4-19 in any way a consumer's rights, including:
4-20 (A) any exclusion, disclaimer, or limitation of
4-21 warranty or remedy;
4-22 (B) any choice of law, forum selection, or
4-23 arbitration clause;
4-24 (C) any statement that the consumer is not
4-25 relying on the representation, statement, or assertion of another;
4-26 (D) any statement that the consumer is
4-27 purchasing or leasing the goods or services "as-is" or "with all
5-1 faults"; and
5-2 (E) any other statement to the effect that there
5-3 is not a basis for the assertion of the consumer's rights.
5-4 SECTION 3. Section 17.49, Business & Commerce Code, is
5-5 amended by adding Subsections (c), (d), and (e) to read as follows:
5-6 (c) Nothing in this subchapter shall apply to a claim for
5-7 damages based on the rendering of a professional service, the
5-8 essence of which is the providing of advice, judgment, or opinion.
5-9 This exemption does not apply to:
5-10 (1) an express misrepresentation of a material fact
5-11 that is not advice, judgment, or opinion;
5-12 (2) a failure to disclose information in violation of
5-13 Section 17.46(b)(23);
5-14 (3) an unconscionable action or course of action that
5-15 is not advice, judgment, or opinion; or
5-16 (4) breach of an express warranty that is not advice,
5-17 judgment, or opinion.
5-18 (d) Nothing in this subchapter shall apply to a claim
5-19 arising out of a written contract if:
5-20 (1) the consideration paid or to be paid exceeds
5-21 $200,000;
5-22 (2) in seeking or acquiring the goods or services the
5-23 consumer is represented by legal counsel who is not directly or
5-24 indirectly identified, suggested, or selected by the defendant or
5-25 an agent of the defendant;
5-26 (3) the contract was negotiated at arm's-length and
5-27 the consumer was not in a significantly disparate bargaining
6-1 position; and
6-2 (4) the contract does not relate to the sale,
6-3 construction, or modification of the consumer's residence.
6-4 (e) Nothing in this subchapter shall apply to a cause of
6-5 action arising from a transaction, a project, or a set of
6-6 transactions relating to the same project, involving total
6-7 consideration by the consumer of more than $1,000,000.
6-8 SECTION 4. Section 17.50, Business & Commerce Code, is
6-9 amended to read as follows:
6-10 Sec. 17.50. RELIEF FOR CONSUMERS. (a) A consumer may
6-11 maintain an action where any of the following constitute a
6-12 producing cause of actual damages:
6-13 (1) the use or employment by any person of a false,
6-14 misleading, or deceptive act or practice that is:
6-15 (A) specifically enumerated in a subdivision of
6-16 Subsection (b) of Section 17.46 of this subchapter; and
6-17 (B) relied on by a consumer to the consumer's
6-18 detriment;
6-19 (2) breach of an express or implied warranty;
6-20 (3) any unconscionable action or course of action by
6-21 any person; or
6-22 (4) the use or employment by any person of an act or
6-23 practice in violation of Article 21.21, Texas Insurance Code<, as
6-24 amended, or rules or regulations issued by the State Board of
6-25 Insurance under Article 21.21, Texas Insurance Code, as amended>.
6-26 (b) In a suit filed under this section, each consumer who
6-27 prevails may obtain:
7-1 (1) the amount of economic <actual> damages found by
7-2 the trier of fact. In addition the court shall award two times
7-3 that portion of the economic <actual> damages that does not exceed
7-4 $1,000. If the trier of fact finds that the conduct of the
7-5 defendant was committed knowingly, the consumer may also recover
7-6 noneconomic damages found by the trier of fact, and the trier of
7-7 fact may award not more than three times the amount of actual
7-8 damages in excess of $1,000<, provided that:>
7-9 <(A) the provisions of Chapters 33 and 41, Civil
7-10 Practice and Remedies Code, shall govern the determination of the
7-11 consumer's right under this subchapter to recover actual and other
7-12 damages, including exemplary damages, and the amount of those
7-13 damages that may be recovered by the consumer under this
7-14 subchapter, in an action seeking damages for (i) death;
7-15 (ii) personal injury other than mental anguish or distress
7-16 associated with a violation of this subchapter that does not
7-17 involve death or bodily injury; or (iii) damage to property other
7-18 than the goods acquired by the purchase or lease that is involved
7-19 in the consumer's action or claim if that damage arises out of an
7-20 occurrence that involves death or bodily injury; and>
7-21 <(B) only in an action under this subchapter
7-22 that is subject to Paragraph (A) of this subdivision, the
7-23 consumer's right to recover damages shall be subject to any defense
7-24 or defensive matter that could be considered by the trier of fact
7-25 in an action subject to Chapter 33, Civil Practice and Remedies
7-26 Code, in determining the percentage of responsibility attributable
7-27 to the consumer claimant under that chapter>;
8-1 (2) an order enjoining such acts or failure to act;
8-2 (3) orders necessary to restore to any party to the
8-3 suit any money or property, real or personal, which may have been
8-4 acquired in violation of this subchapter; and
8-5 (4) any other relief which the court deems proper,
8-6 including the appointment of a receiver or the revocation of a
8-7 license or certificate authorizing a person to engage in business
8-8 in this state if the judgment has not been satisfied within three
8-9 months of the date of the final judgment. The court may not revoke
8-10 or suspend a license to do business in this state or appoint a
8-11 receiver to take over the affairs of a person who has failed to
8-12 satisfy a judgment if the person is a licensee of or regulated by a
8-13 state agency which has statutory authority to revoke or suspend a
8-14 license or to appoint a receiver or trustee. Costs and fees of
8-15 such receivership or other relief shall be assessed against the
8-16 defendant.
8-17 (c) On a finding by the court that an action under this
8-18 section was groundless in fact and in law or <and> brought in bad
8-19 faith, or brought for the purpose of harassment, the court shall
8-20 award to the defendant reasonable and necessary attorneys' fees and
8-21 court costs.
8-22 (d) Each consumer who prevails shall be awarded court costs
8-23 and reasonable and necessary attorneys' fees.
8-24 (e) Chapter 41, Civil Practice and Remedies Code, does not
8-25 apply to a cause of action brought under this subchapter.
8-26 (f) Notwithstanding any other provision of this subchapter,
8-27 if a claimant is granted the right to bring a cause of action under
9-1 this subchapter by another law, and the trier of fact does not find
9-2 the conduct was committed knowingly, the claimant is not limited to
9-3 recovery of economic damages only, but may recover any actual
9-4 damages incurred by the claimant. For the purpose of the recovery
9-5 of damages for a cause of action described by this subsection only,
9-6 a reference in this subchapter to economic damages means actual
9-7 damages. This subsection applies to an action brought under this
9-8 chapter for a violation of Article 21.21, Insurance Code.
9-9 SECTION 5. Subchapter E, Chapter 17, Business & Commerce
9-10 Code, is amended by adding Section 17.501 to read as follows:
9-11 Sec. 17.501. JOINT AND SEVERAL LIABILITY. Joint and several
9-12 liability in an action under this subchapter is governed by Chapter
9-13 33, Civil Practice and Remedies Code.
9-14 SECTION 6. Section 17.505, Business & Commerce Code, is
9-15 amended to read as follows:
9-16 Sec. 17.505. NOTICE; INSPECTION<: OFFER OF SETTLEMENT>.
9-17 (a) As a prerequisite to filing a suit seeking damages under
9-18 Subdivision (1) of Subsection (b) of Section 17.50 of this
9-19 subchapter against any person, a consumer shall give written notice
9-20 to the person at least 60 days before filing the suit advising the
9-21 person in reasonable detail of the consumer's specific complaint
9-22 and the amount of actual damages and expenses, including attorneys'
9-23 fees, if any, reasonably incurred by the consumer in asserting the
9-24 claim against the defendant. During the 60-day period a written
9-25 request to inspect, in a reasonable manner and at a reasonable time
9-26 and place, the goods that are the subject of the consumer's action
9-27 or claim may be presented to the consumer. If the consumer
10-1 <unreasonably> refuses to permit the inspection by the person or
10-2 the person's designated representative, the court shall not award
10-3 the two times economic <actual> damages not exceeding $1,000, as
10-4 provided in Subsection (b) of Section 17.50 of this subchapter.
10-5 (b) If the giving of 60 days' written notice is rendered
10-6 impracticable by reason of the necessity of filing suit in order to
10-7 prevent the expiration of the statute of limitations or if the
10-8 consumer's claim is asserted by way of counterclaim, the notice
10-9 provided for in Subsection (a) of this section is not required, but
10-10 the tender provided for by <Subsection (c) of this section and by>
10-11 Subsection (d), Section 17.506 of this subchapter may be made
10-12 within 60 days after service <the filing> of the suit or
10-13 counterclaim.
10-14 (c) A person against whom a suit is pending who does not
10-15 receive written notice, as required by Subsection (a), may file a
10-16 plea in abatement not later than the 30th day after the date the
10-17 person files an original answer in the court in which the suit is
10-18 pending. This subsection does not apply if Subsection (b) applies.
10-19 <Any person who receives the written notice provided by Subsection
10-20 (a) of this section may, within 60 days after the receipt of the
10-21 notice, tender to the consumer a written offer of settlement,
10-22 including an agreement to reimburse the consumer for the attorneys'
10-23 fees, if any, reasonably incurred by the consumer in asserting his
10-24 claim up to the date of the written notice. A person who does not
10-25 receive such a written notice due to the consumer's suit or
10-26 counterclaim being filed as provided for by Subsection (b) of this
10-27 section may, within 60 days after the filing of such suit or
11-1 counterclaim, tender to the consumer a written offer of settlement,
11-2 including an agreement to reimburse the consumer for the attorneys'
11-3 fees, if any, reasonably incurred by the consumer in asserting his
11-4 claim up to the date the suit or counterclaim was filed. Any offer
11-5 of settlement not accepted within 30 days of receipt by the
11-6 consumer shall be deemed to have been rejected by the consumer.>
11-7 (d) The court shall abate the suit if the court, after a
11-8 hearing, finds that the person is entitled to an abatement because
11-9 notice was not provided as required by this section. A suit is
11-10 automatically abated without the order of the court beginning on
11-11 the 11th day after the date a plea in abatement is filed under
11-12 Subsection (c) if the plea in abatement:
11-13 (1) is verified and alleges that the person against
11-14 whom the suit is pending did not receive the written notice as
11-15 required by Subsection (a); and
11-16 (2) is not controverted by an affidavit filed by the
11-17 consumer before the 11th day after the date on which the plea in
11-18 abatement is filed.
11-19 (e) An abatement under Subsection (d) continues until the
11-20 60th day after the date that written notice is served in compliance
11-21 with Subsection (a). <A settlement offer made in compliance with
11-22 Subsection (c) of this section, if rejected by the consumer, may be
11-23 filed with the court together with an affidavit certifying its
11-24 rejection. If the amount tendered in the settlement offer is the
11-25 same as or more than, or if the court finds that amount to be
11-26 substantially the same as, the actual damages found by the trier of
11-27 fact, the consumer may not recover an amount in excess of the
12-1 amount tendered in the settlement offer or the amount of actual
12-2 damages found by the trier of fact, whichever is less. Such
12-3 settlement offer shall not be admissible as evidence before a jury.>
12-4 <(e) The tender of an offer of settlement is not an
12-5 admission of engaging in an unlawful act or practice or of
12-6 liability under this Act. Evidence of a settlement offer may be
12-7 introduced only to determine the reasonableness of the settlement
12-8 offer as provided for by Subsection (d) of this section.>
12-9 SECTION 7. Subchapter E, Chapter 17, Business & Commerce
12-10 Code, is amended by adding Sections 17.5051 and 17.5052 to read as
12-11 follows:
12-12 Sec. 17.5051. MEDIATION. (a) A party may, not later than
12-13 the 90th day after the date of service of a pleading in which
12-14 relief under this subchapter is sought, file a motion to compel
12-15 mediation of the dispute in the manner provided by this section.
12-16 (b) The court shall, not later than the 30th day after the
12-17 date a motion under this section is filed, sign an order setting
12-18 the time and place of the mediation.
12-19 (c) If the parties do not agree on a mediator, the court
12-20 shall appoint the mediator.
12-21 (d) Mediation shall be held within 30 days after the date
12-22 the order is signed, unless the parties agree otherwise or the
12-23 court determines that additional time, not to exceed an additional
12-24 30 days, is warranted.
12-25 (e) Except as agreed to by all parties who have appeared in
12-26 the action, each party who has appeared shall participate in the
12-27 mediation and, except as provided by Subsection (f), shall share
13-1 the mediation fee.
13-2 (f) A party may not compel mediation under this section if
13-3 the amount of economic damages claimed is less than $15,000, unless
13-4 the party seeking to compel mediation agrees to pay the costs of
13-5 the mediation.
13-6 (g) Except as provided in this section, Section 154.023,
13-7 Civil Practice and Remedies Code, and Subchapters C and D, Chapter
13-8 154, Civil Practice and Remedies Code, apply to the appointment of
13-9 a mediator and to the mediation process provided by this section.
13-10 (h) This section does not apply to an action brought by the
13-11 attorney general under Section 17.47.
13-12 Sec. 17.5052. OFFERS OF SETTLEMENT. (a) A person who
13-13 receives notice under Section 17.505 may tender an offer of
13-14 settlement at any time during the period beginning on the date the
13-15 notice is received and ending on the 60th day after that date.
13-16 (b) If a mediation under Section 17.5051 is not conducted,
13-17 the person may tender an offer of settlement at any time during the
13-18 period beginning on the date an original answer is filed and ending
13-19 on the 90th day after that date.
13-20 (c) If a mediation under Section 17.5051 is conducted, a
13-21 person against whom a claim under this subchapter is pending may
13-22 tender an offer of settlement during the period beginning on the
13-23 day after the date that the mediation ends and ending on the 20th
13-24 day after that date.
13-25 (d) An offer of settlement tendered by a person against whom
13-26 a claim under this subchapter is pending must include an offer to
13-27 pay the following amounts of money, separately stated:
14-1 (1) an amount of money or other consideration, reduced
14-2 to its cash value, as settlement of the consumer's claim for
14-3 damages; and
14-4 (2) an amount of money to compensate the consumer for
14-5 the consumer's reasonable and necessary attorneys' fees incurred as
14-6 of the date of the offer.
14-7 (e) Unless both parts of an offer of settlement required
14-8 under Subsection (d) are accepted by the consumer not later than
14-9 the 30th day after the date the offer is made, the offer is
14-10 rejected.
14-11 (f) A settlement offer tendered by a person against whom a
14-12 claim under this subchapter is pending that complies with this
14-13 section and that has been rejected by the consumer may be filed
14-14 with the court with an affidavit certifying its rejection.
14-15 (g) If the court finds that the amount tendered in the
14-16 settlement offer for damages under Subsection (d)(1) is the same
14-17 as, substantially the same as, or more than the damages found by
14-18 the trier of fact, the consumer may not recover as damages any
14-19 amount in excess of the lesser of:
14-20 (1) the amount of damages tendered in the settlement
14-21 offer; or
14-22 (2) the amount of damages found by the trier of fact.
14-23 (h) If the court makes the finding described by Subsection
14-24 (g), the court shall determine reasonable and necessary attorneys'
14-25 fees to compensate the consumer for attorneys' fees incurred before
14-26 the date and time of the rejected settlement offer. If the court
14-27 finds that the amount tendered in the settlement offer to
15-1 compensate the consumer for attorneys' fees under Subsection (d)(2)
15-2 is the same as, substantially the same as, or more than the amount
15-3 of reasonable and necessary attorneys' fees incurred by the
15-4 consumer as of the date of the offer, the consumer may not recover
15-5 attorneys' fees greater than the amount of fees tendered in the
15-6 settlement offer.
15-7 (i) If the court finds that the offering party could not
15-8 perform the offer at the time the offer was made or that the
15-9 offering party substantially misrepresented the cash value of the
15-10 offer, Subsections (g) and (h) do not apply.
15-11 (j) If Subsection (g) does not apply, the court shall award
15-12 as economic damages the amount found by the trier of fact, subject
15-13 to Sections 17.50 and 17.501. If Subsection (h) does not apply,
15-14 the court shall award attorneys' fees as provided by Section
15-15 17.50(d).
15-16 (k) An offer of settlement is not an admission of engaging
15-17 in an unlawful act or practice or liability under this subchapter.
15-18 Except as otherwise provided by this section, an offer or a
15-19 rejection of an offer may not be offered in evidence at trial for
15-20 any purpose.
15-21 SECTION 8. Section 17.56, Business & Commerce Code, is
15-22 amended to read as follows:
15-23 Sec. 17.56. VENUE. Venue for an action brought under this
15-24 subchapter is governed by Chapter 15, Civil Practice and Remedies
15-25 Code. <An action brought which alleges a claim to relief under
15-26 Section 17.50 of this subchapter may be commenced in the county in
15-27 which the person against whom the suit is brought resides, has his
16-1 principal place of business, or has a fixed and established place
16-2 of business at the time the suit is brought or in the county in
16-3 which the alleged act or practice occurred or in a county in which
16-4 the defendant or an authorized agent of the defendant solicited the
16-5 transaction made the subject of the action at bar.>
16-6 SECTION 9. Section 27.004, Property Code, is amended by
16-7 adding new Subsections (d) and (e) and relettering existing
16-8 Subsections (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) to
16-9 read as follows:
16-10 (d) The court shall abate a suit governed by this section if
16-11 Subsection (c) does not apply and the court, after a hearing, finds
16-12 that the contractor is entitled to an abatement because notice was
16-13 not provided as required by Subsection (a). A suit is automatically
16-14 abated without the order of the court beginning on the 11th day
16-15 after the date a plea in abatement is filed if the plea in
16-16 abatement:
16-17 (1) is verified and alleges that the person against
16-18 whom the suit is pending did not receive the written notice as
16-19 required by Subsection (a); and
16-20 (2) is not controverted by an affidavit filed by the
16-21 claimant before the 11th day after the date on which the plea in
16-22 abatement is filed.
16-23 (e) An abatement under Subsection (d) continues until the
16-24 60th day after the date that written notice is served in compliance
16-25 with Subsection (a).
16-26 (f) <(d)> If a claimant unreasonably rejects an offer made
16-27 as provided by this section or does not permit the contractor or
17-1 independent contractor a reasonable opportunity to repair the
17-2 defect pursuant to an accepted offer of settlement, the claimant
17-3 may not recover an amount in excess of the reasonable cost of the
17-4 repairs which are necessary to cure the construction defect and
17-5 which are the responsibility of the contractor and may recover only
17-6 the amount of reasonable and necessary attorney's fees and costs
17-7 incurred before the offer was rejected or considered rejected.
17-8 (g) <(e)> If a contractor fails to make a reasonable offer
17-9 under this section, or fails to make a reasonable attempt to
17-10 complete the repairs specified in an accepted offer made under this
17-11 section, or fails to complete, in a good and workmanlike manner,
17-12 the repairs specified in an accepted offer made under this section,
17-13 the limitations on damages and defenses to liability provided for
17-14 in this section shall not apply.
17-15 (h) <(f)> Except as provided by Subsection (f) <(d)>, in a
17-16 suit subject to this chapter the claimant may recover only the
17-17 following damages proximately caused by a construction defect:
17-18 (1) the reasonable cost of repairs necessary to cure
17-19 any construction defect that the contractor failed to cure;
17-20 (2) the reasonable expenses of temporary housing
17-21 reasonably necessary during the repair period;
17-22 (3) the reduction in market value, if any, to the
17-23 extent the reduction is due to structural failure; and
17-24 (4) reasonable and necessary attorney's fees.
17-25 (i) <(g)> The total damages awarded in a suit subject to
17-26 this chapter may not exceed the claimant's purchase price for the
17-27 residence.
18-1 (j) <(h)> An offer of settlement made under this section
18-2 that is not accepted before the 25th day after the date the offer
18-3 is received by the claimant is considered rejected.
18-4 (k) <(i)> An affidavit certifying rejection of a settlement
18-5 offer under this section may be filed with the court. The trier of
18-6 fact shall determine the reasonableness of a rejection of an offer
18-7 of settlement made under this section.
18-8 (l) <(j)> A contractor who makes or provides for repairs
18-9 under this section is entitled to take reasonable steps to document
18-10 the repair and to have it inspected.
18-11 (m) <(k)> Notwithstanding Subsections (a), (b), and (c), a
18-12 contractor who receives written notice of a construction defect
18-13 resulting from work performed by the contractor or an agent,
18-14 employee, or subcontractor of the contractor and creating an
18-15 imminent threat to the health or safety of the inhabitants of the
18-16 residence shall take reasonable steps to cure the defect as soon as
18-17 practicable. If the contractor fails to cure the defect in a
18-18 reasonable time, the owner of the residence may have the defect
18-19 cured and may recover from the contractor the reasonable cost of
18-20 the repairs plus attorney's fees and costs in addition to any other
18-21 damages recoverable under any law not inconsistent with the
18-22 provisions of this chapter.
18-23 (n) <(l)> This section does not preclude a contractor from
18-24 making a monetary settlement offer.
18-25 (o) <(m)> The inspection and repair provisions of this
18-26 chapter are in addition to any rights of inspection and settlement
18-27 provided by common law or by another statute, including Section
19-1 17.505, Business & Commerce Code.
19-2 SECTION 10. Section 4, Article 21.21, Insurance Code, is
19-3 amended to read as follows:
19-4 Sec. 4. UNFAIR METHODS OF COMPETITION AND UNFAIR OR
19-5 DECEPTIVE ACTS OR PRACTICES DEFINED. The following are hereby
19-6 defined as unfair methods of competition and unfair and deceptive
19-7 acts or practices in the business of insurance:
19-8 (1) Misrepresentations and False Advertising of Policy
19-9 Contracts. Making, issuing, circulating, or causing to be made,
19-10 issued or circulated, any estimate, illustration, circular or
19-11 statement misrepresenting the terms of any policy issued or to be
19-12 issued or the benefits or advantages promised thereby or the
19-13 dividends or share of the surplus to be received thereon, or making
19-14 any false or misleading statements as to the dividends or share of
19-15 surplus previously paid on similar policies, or making any
19-16 misleading representation or any misrepresentation as to the
19-17 financial condition of any insurer, or as to the legal reserve
19-18 system upon which any life insurer operates, or using any name or
19-19 title of any policy or class of policies misrepresenting the true
19-20 nature thereof, or making any misrepresentation to any policyholder
19-21 insured in any company for the purpose of inducing or tending to
19-22 induce such policyholder to lapse, forfeit, or surrender his
19-23 insurance;
19-24 (2) False Information and Advertising Generally.
19-25 Making, publishing, disseminating, circulating or placing before
19-26 the public, or causing, directly or indirectly, to be made,
19-27 published, disseminated, circulated, or placed before the public,
20-1 in a newspaper, magazine or other publication, or in the form of a
20-2 notice, circular, pamphlet, letter or poster, or over any radio or
20-3 television station, or in any other way, an advertisement,
20-4 announcement or statement containing any assertion, representation
20-5 or statement with respect to the business of insurance or with
20-6 respect to any person in the conduct of his insurance business,
20-7 which is untrue, deceptive or misleading;
20-8 (3) Defamation. Making, publishing, disseminating, or
20-9 circulating, directly or indirectly, or aiding, abetting or
20-10 encouraging the making, publishing, disseminating or circulating of
20-11 any oral or written statement or any pamphlet, circular, article or
20-12 literature which is false, or maliciously critical of or derogatory
20-13 to the financial condition of any insurer, and which is calculated
20-14 to injure any person engaged in the business of insurance;
20-15 (4) Boycott, Coercion and Intimidation. Entering into
20-16 any agreement to commit, or by any concerted action committing, any
20-17 act of boycott, coercion or intimidation resulting in or tending to
20-18 result in unreasonable restraint of, or monopoly in, the business
20-19 of insurance;
20-20 (5) False Financial Statements. (a) Filing with any
20-21 supervisory or other public official, or making, publishing,
20-22 disseminating, circulating or delivering to any person, or placing
20-23 before the public, or causing directly or indirectly, to be made,
20-24 published, disseminated, circulated, delivered to any person, or
20-25 placed before the public, any false statement of financial
20-26 condition of an insurer with intent to deceive;
20-27 (b) Making any false entry in any book, report
21-1 or statement of any insurer with intent to deceive any agent or
21-2 examiner lawfully appointed to examine into its condition or into
21-3 any of its affairs, or any public official to whom such insurer is
21-4 required by law to report, or who has authority by law to examine
21-5 into its condition or into any of its affairs, or, with like
21-6 intent, wilfully omitting to make a true entry of any material fact
21-7 pertaining to the business of such insurer in any book, report or
21-8 statement of such insurer;
21-9 (6) Stock Operations and Advisory Board Contracts.
21-10 Issuing or delivering or permitting agents, officers or employees
21-11 to issue or deliver, company stock or other capital stock, or
21-12 benefit certificates or shares in any corporation, or securities or
21-13 any special or advisory board contracts or other contracts of any
21-14 kind promising returns and profits as an inducement to insurance.
21-15 Provided, however, that nothing in this subsection shall be
21-16 construed as prohibiting the issuing or delivery of participating
21-17 insurance policies otherwise authorized by law.
21-18 (7) Unfair Discrimination. (a) Making or permitting
21-19 any unfair discrimination between individuals of the same class and
21-20 equal expectation of life in the rates charged for any contract of
21-21 life insurance or of life annuity or in the dividends or other
21-22 benefits payable thereon, or in any other of the terms and
21-23 conditions of such contract;
21-24 (b) Making or permitting any unfair
21-25 discrimination between individuals of the same class and of
21-26 essentially the same hazard in the amount of premium, policy fees,
21-27 or rates charged for any policy or contract of <accident or health>
22-1 insurance or in the benefits payable thereunder, or in any of the
22-2 terms or conditions of such contract, or in any other manner
22-3 whatever;
22-4 (c) Making or permitting any unfair
22-5 discrimination between individuals or risks of the same class and
22-6 of essentially the same hazards by refusing to renew, cancelling or
22-7 limiting the amount of coverage on a policy of insurance covered by
22-8 Subchapter C, Chapter 5, of this code because of the geographic
22-9 location of the risk unless:
22-10 (1) the refusal, cancellation or
22-11 limitation is for a business purpose that is not a mere pretext for
22-12 unfair discrimination; or
22-13 (2) the refusal, cancellation or
22-14 limitation is required by law or regulatory mandate.
22-15 (8) Rebates. (a) Except as otherwise expressly
22-16 provided by law, knowingly permitting or offering to make or making
22-17 any contract of life insurance, life annuity or accident and health
22-18 insurance, or agreement as to such contract other than as plainly
22-19 expressed in the contract issued thereon, or paying or allowing, or
22-20 giving or offering to pay, allow, or give, directly or indirectly,
22-21 as inducement to such insurance, or annuity, any rebate of premiums
22-22 payable on the contract, or any special favor or advantage in the
22-23 dividends or other benefits thereon, or any valuable consideration
22-24 or inducement whatever not specified in the contract; or giving, or
22-25 selling, or purchasing or offering to give, sell, or purchase as
22-26 inducement to such insurance or annuity or in connection therewith,
22-27 any stocks, bonds, or other securities of any insurance company or
23-1 other corporation, association, or partnership, or any dividends or
23-2 profits accrued thereon, or anything of value whatsoever not
23-3 specified in the contract;
23-4 (b) Nothing in clause 7 or paragraph (a) of
23-5 clause 8 of this subsection shall be construed as including within
23-6 the definition of discrimination or rebates any of the following
23-7 practices:
23-8 (i) in the case of any contract of life
23-9 insurance or life annuity, paying bonuses to policyholders or
23-10 otherwise abating their premiums in whole or in part out of surplus
23-11 accumulated from non-participating insurance, provided that any
23-12 such bonuses or abatement of premiums shall be fair and equitable
23-13 to policyholders and for the best interests of the company and its
23-14 policyholders;
23-15 (ii) in the case of life insurance
23-16 policies issued on the industrial debit plan, making allowance to
23-17 policyholders who have continuously for a specified period made
23-18 premium payments directly to an office of the insurer in an amount
23-19 which fairly represents the saving in collection expenses;
23-20 (iii) readjustment of the rate of premium
23-21 for a group insurance policy based on the loss or expense
23-22 experience thereunder, at the end of the first or any subsequent
23-23 policy year of insurance thereunder, which may be made retroactive
23-24 only for such policy year.
23-25 (9) Deceptive Name, Word, Symbol, Device, or Slogan.
23-26 Using, displaying, publishing, circulating, distributing, or
23-27 causing to be used, displayed, published, circulated, or
24-1 distributed in any letter, pamphlet, circular, contract, policy,
24-2 evidence of coverage, article, poster, or other document,
24-3 literature, or public media of:
24-4 (a) a name as the corporate or business name of
24-5 a person or entity engaged in an insurance or insurance related
24-6 business in this state that is the same as, or deceptively similar
24-7 to, the name adopted and used by an insurance entity, health
24-8 maintenance organization, third party administrator, or group
24-9 hospital service company authorized to do business under the laws
24-10 of this state; or
24-11 (b) a word, symbol, device, slogan, or any
24-12 combination of these items, whether registered or not registered,
24-13 that is the same as or deceptively similar to one adopted and used
24-14 by an insurance entity, health maintenance organization, third
24-15 party administrator, or group hospital service company to
24-16 distinguish such entities, products, or service from other
24-17 entities, and includes the title, designation, character names, and
24-18 distinctive features of broadcast or other advertising.
24-19 Where two persons or entities are using a name, word, symbol,
24-20 device, slogan, or any combination of these items that are the same
24-21 or deceptively similar and are likely to cause confusion or a
24-22 mistake, the user who can demonstrate the first continuous actual
24-23 use of such name, word, symbol, device, slogan, or combination of
24-24 these items shall not have committed an unfair method of
24-25 competition or deceptive act or practice.
24-26 (10) Unfair Settlement Practices. (a)
24-27 misrepresenting to a claimant pertinent facts or policy provisions
25-1 relating to coverage at issue;
25-2 (b) not attempting in good faith to effectuate a
25-3 prompt, fair, and equitable settlement of a claim submitted in
25-4 which liability has become reasonably clear;
25-5 (c) compelling a policyholder to institute suit
25-6 to recover an amount due under a policy by offering substantially
25-7 less than the amount ultimately recovered in a suit brought by the
25-8 policyholder;
25-9 (d) failing to provide promptly, when provided
25-10 for in the policy, claim forms when the insurer requires such forms
25-11 as a prerequisite for a claim settlement;
25-12 (e) not attempting in good faith to effectuate a
25-13 prompt, fair, and equitable settlement of a claim where liability
25-14 has become reasonably clear under one portion of a policy in order
25-15 to influence settlement under another portion of the policy,
25-16 provided that this prohibition does not apply if payment under one
25-17 portion of the policy constitutes evidence of liability under
25-18 another portion of the policy;
25-19 (f) failing to provide promptly to a
25-20 policyholder a reasonable explanation of the basis in the policy,
25-21 as it relates to the facts or applicable law, for denial of a claim
25-22 or for the offer of a compromise settlement of a claim;
25-23 (g) failing within a reasonable time to:
25-24 (i) affirm or deny coverage of a claim to
25-25 a policyholder; or
25-26 (ii) reasonably submit a reservation of
25-27 rights to a policyholder;
26-1 (h) refusing, failing, or unreasonably delaying
26-2 an offer of settlement under applicable first-party coverage on the
26-3 basis that other coverage may be available or that third parties
26-4 are responsible for the damages suffered, except as may be
26-5 specifically provided in the policy;
26-6 (i) attempting to settle a claim for less than
26-7 the amount to which a reasonable person would have believed the
26-8 person was entitled by reference to an advertisement made by the
26-9 insurer or a person acting on behalf of the insurer;
26-10 (j) undertaking to enforce a full and final
26-11 release from a policyholder when only a partial payment has been
26-12 made, provided that this prohibition does not apply to a compromise
26-13 settlement of a doubtful or disputed claim;
26-14 (k) failing to establish a policy and proper
26-15 controls to make certain that an agent calculate and deliver to a
26-16 policyholder or the policyholder's assignee funds due under policy
26-17 provisions relating to the cancellation of coverage within a
26-18 reasonable time after the coverage is terminated;
26-19 (l) refusing to pay a claim without conducting a
26-20 reasonable investigation based on all available information;
26-21 (m) with respect to a Texas personal auto
26-22 policy, delaying or refusing settlement of a claim solely because
26-23 there is other insurance of a different type available to satisfy
26-24 all or part of the loss forming the basis of the claim;
26-25 (n) requiring a claimant, as a condition of
26-26 settling a claim, to produce the claimant's federal income tax
26-27 returns for examination or investigation unless:
27-1 (i) the claimant is ordered to produce
27-2 those tax returns by a court;
27-3 (ii) the claim involves a fire loss; or
27-4 (iii) the claim involves lost profits or
27-5 income; or
27-6 (o) violating the provisions of Article 21.55 of
27-7 this code.
27-8 (11) Other Misrepresentations. Making any other
27-9 misrepresentation, directly or indirectly, including any of the
27-10 following acts or omissions:
27-11 (a) making an untrue statement of material fact;
27-12 (b) failing to state a material fact that is
27-13 necessary to make other statements made not misleading, considering
27-14 the circumstances under which the statements were made;
27-15 (c) making a statement in such manner as to
27-16 mislead a reasonably prudent person to a false conclusion of a
27-17 material fact;
27-18 (d) making a material misstatement of law; or
27-19 (e) failing to disclose any matter required by
27-20 law to be disclosed, including a failure to make disclosure in
27-21 accordance with another provision of this code.
27-22 SECTION 11. Article 21.21, Insurance Code, is amended by
27-23 adding Section 11A to read as follows:
27-24 Sec. 11A. DOUBLE RECOVERY PROHIBITED. A person may not
27-25 recover damages and penalties for the same act or practice under
27-26 both this Article and under another law.
27-27 SECTION 12. Section 16, Article 21.21, Insurance Code, is
28-1 amended to read as follows:
28-2 Sec. 16. RELIEF AVAILABLE TO INJURED PARTIES. (a) Any
28-3 person who has sustained actual damages as a result of another's
28-4 engaging either in an act or practice declared in Section 4 of this
28-5 Article <or in rules or regulations lawfully adopted by the Board
28-6 under this Article> to be unfair methods of competition or unfair
28-7 or deceptive acts or practices in the business of insurance or in
28-8 any practice specifically enumerated in a subdivision of <defined
28-9 by> Section 17.46(b), <17.46 of the> Business & Commerce Code, <as
28-10 amended,> as an unlawful deceptive trade practice may maintain an
28-11 action against the person or persons engaging in such acts or
28-12 practices.
28-13 (b) In a suit filed under this section, any plaintiff who
28-14 prevails may obtain:
28-15 (1) the amount of actual damages plus court costs and
28-16 reasonable and necessary attorneys' fees. In addition, the court
28-17 shall award two times that portion of the actual damages that does
28-18 not exceed $1,000. If the trier of fact finds that the defendant
28-19 knowingly committed the acts complained of, the trier of fact may
28-20 award not more than three <court shall award, in addition, two>
28-21 times the amount of actual damages in excess of $1,000; or
28-22 (2) an order enjoining such acts or failure to act; or
28-23 (3) any other relief which the court deems proper.
28-24 (c) On a finding by the court that an action under this
28-25 section was groundless and brought in bad faith or brought for the
28-26 purpose of harassment, the court shall award to the defendant
28-27 reasonable and necessary attorneys' fees and court costs.
29-1 (d) All actions under this Article must be commenced within
29-2 two years after the date on which the unfair method of competition
29-3 or unfair or deceptive act or practice occurred or within two years
29-4 after the person bringing the action discovered or, in the exercise
29-5 of reasonable diligence, should have discovered the occurrence of
29-6 the unfair method of competition or unfair or deceptive act or
29-7 practice. The period of limitation provided in this section may be
29-8 extended for a period of 180 days if the person bringing the action
29-9 proves that the failure to timely commence the action was caused by
29-10 the defendant's engaging in conduct solely calculated to induce the
29-11 plaintiff to refrain from or postpone the commencement of the
29-12 action.
29-13 (e) As a prerequisite to filing a suit seeking damages under
29-14 this section against any person, the person seeking damages shall
29-15 give written notice to the other person at least 60 <30> days
29-16 before filing suit. The notice must advise the person of the
29-17 specific complaint and the amount of actual damages and expenses,
29-18 including any attorneys' fees reasonably incurred in asserting the
29-19 claim against the defendant.
29-20 (f) If giving 60 <30> days' written notice is impracticable
29-21 because the suit must be filed in order to prevent the expiration
29-22 of the statute of limitations or because the claim is asserted as a
29-23 counterclaim, the notice provided for in Subsection (e) of this
29-24 section is not required<, and the tender of a written offer of
29-25 settlement provided for by Subsection (g) of this section may be
29-26 made not later than the 30th day after the date of filing of the
29-27 suit or counterclaim>.
30-1 (g) A person against whom a suit is pending who does not
30-2 receive written notice, as required by Subsection (e) of this
30-3 section, may file a plea in abatement not later than the 30th day
30-4 after the date the person files an original answer in the court in
30-5 which the suit is pending. This subsection does not apply if
30-6 Subsection (f) of this section applies <A person who receives the
30-7 written notice provided by Subsection (e) of this section may
30-8 tender, not later than the 30th day after the date of receipt of
30-9 the notice, to the person seeking damages, a written offer of
30-10 settlement, including an agreement to reimburse the person for any
30-11 attorneys' fees reasonably incurred in asserting the claim to the
30-12 date of the written notice. A person who does not receive a
30-13 written notice because the suit or counterclaim is filed as
30-14 provided for by Subsection (f) of this section may tender, not
30-15 later than the 30th day after the date of filing of the suit or
30-16 counterclaim, a written offer of settlement, including an agreement
30-17 to reimburse the person for any attorneys' fees reasonably incurred
30-18 in asserting the claim to the date the suit or counterclaim was
30-19 filed. An offer of settlement is rejected if it is not accepted on
30-20 or before the 30th day after the date of receipt by the person
30-21 seeking damages>.
30-22 (h) The court shall abate the suit if the court, after a
30-23 hearing, finds that the person is entitled to an abatement because
30-24 notice was not provided as required by this section. A suit is
30-25 automatically abated without the order of the court beginning on
30-26 the 11th day after the date a plea in abatement is filed under
30-27 Subsection (g) if the plea in abatement:
31-1 (1) is verified and alleges that the person against
31-2 whom the suit is pending did not receive the written notice as
31-3 required by Subsection (e); and
31-4 (2) is not controverted by an affidavit filed by the
31-5 claimant before the 11th day after the date on which the plea in
31-6 abatement is filed <A rejected settlement offer made in compliance
31-7 with Subsection (g) of this section may be filed with the court
31-8 with an affidavit certifying its rejection. If the court finds
31-9 that the amount tendered in the settlement offer is the same or
31-10 substantially the same as the actual damages found by the trier of
31-11 fact, the plaintiff may not recover an amount that exceeds the
31-12 lesser of:>
31-13 <(1) the amount tendered in the settlement offer; or>
31-14 <(2) the amount of actual damages found by the trier
31-15 of fact>.
31-16 (i) An abatement under Subsection (h) continues until the
31-17 60th day after the date that written notice is served in compliance
31-18 with Subsection (e) <The tender of an offer of settlement is not an
31-19 admission of engaging in an unlawful act or practice or of
31-20 liability under this Article. Evidence of a settlement offer may
31-21 be introduced only to determine the reasonableness of the
31-22 settlement offer as provided for by Subsection (h) of this
31-23 section>.
31-24 SECTION 13. Article 21.21, Insurance Code, is amended by
31-25 adding Sections 16A and 16B to read as follows:
31-26 Sec. 16A. OFFERS OF SETTLEMENT. (a) A person who receives
31-27 notice under Section 16(e) of this article may tender an offer of
32-1 settlement at any time during the period beginning on the date
32-2 notice is received and ending on the 60th day after that date.
32-3 (b) If a mediation under Section 16B of this article is not
32-4 conducted, the person may tender an offer of settlement at any time
32-5 during the period beginning on the date an original answer is filed
32-6 and ending on the 90th day after that date.
32-7 (c) If a mediation under Section 16B of this article is
32-8 conducted, a person against whom a claim under Section 16 of this
32-9 article is pending may tender an offer of settlement during the
32-10 period beginning on the day after the date that the mediation ends
32-11 and ending on the 20th day after that date.
32-12 (d) An offer of settlement tendered by a person against whom
32-13 a claim under Section 16 of this article is pending must include an
32-14 offer to pay the following amounts of money, separately stated:
32-15 (1) an amount of money or other consideration, reduced
32-16 to its cash value, as settlement of the claim for damages; and
32-17 (2) an amount of money to compensate the claimant for
32-18 the claimant's reasonable and necessary attorneys' fees incurred as
32-19 of the date of the offer.
32-20 (e) Unless both parts of an offer of settlement required
32-21 under Subsection (d) of this section are accepted by the claimant
32-22 not later than the 30th day after the date the offer is made, the
32-23 offer is rejected.
32-24 (f) A settlement offer tendered by a person against whom a
32-25 claim under Section 16 of this article is pending that complies
32-26 with this section and that has been rejected by the consumer may be
32-27 filed with the court with an affidavit certifying its rejection.
33-1 (g) If the court finds that the amount tendered in the
33-2 settlement offer for damages under Subsection (d)(1) of this
33-3 section is the same as, substantially the same as, or more than the
33-4 damages found by the trier of fact, the claimant may not recover as
33-5 damages any amount in excess of the lesser of:
33-6 (1) the amount of damages tendered in the settlement
33-7 offer; or
33-8 (2) the amount of damages found by the trier of fact.
33-9 (h) If the court makes the finding described by Subsection
33-10 (g) of this section, the court shall determine reasonable and
33-11 necessary attorneys' fees to compensate the claimant for attorneys'
33-12 fees incurred before the date and time of the rejected settlement
33-13 offer. If the court finds that the amount tendered in the
33-14 settlement offer to compensate the claimant for attorneys' fees
33-15 under Subsection (d)(2) of this section is the same as,
33-16 substantially the same as, or more than the amount of reasonable
33-17 and necessary attorneys' fees incurred by the claimant as of the
33-18 date of the offer, the claimant may not recover attorneys' fees
33-19 greater than the amount of fees tendered in the settlement offer.
33-20 (i) If the court finds that the offering party could not
33-21 perform the offer at the time the offer was made or that the
33-22 offering party substantially misrepresented the cash value of the
33-23 offer, Subsections (g) and (h) of this section do not apply.
33-24 (j) If Subsection (g) of this section does not apply, the
33-25 court shall award damages as required by Section 16(b) of this
33-26 article. If Subsection (h) of this section does not apply, the
33-27 court shall award attorneys' fees as required by Section 16(b) of
34-1 this article.
34-2 (k) An offer of settlement is not an admission of engaging
34-3 in an act or practice declared in Section 4 of this article to be
34-4 an unfair method of competition or an unfair or deceptive act or
34-5 practice in the business of insurance.
34-6 Sec. 16B. MEDIATION. (a) A party may, not later than the
34-7 90th day after the date of service of a pleading in which relief
34-8 under Section 16 of this article is sought, file a motion to compel
34-9 mediation of the dispute in the manner provided by this section.
34-10 (b) The court shall, not later than the 30th day after the
34-11 date a motion under this section is filed, sign an order setting
34-12 the time and place of the mediation.
34-13 (c) If the parties do not agree on a mediator, the court
34-14 shall appoint the mediator.
34-15 (d) Mediation shall be held within 30 days after the date
34-16 the order is signed, unless the parties agree otherwise or the
34-17 court determines that additional time, not to exceed an additional
34-18 30 days, is warranted.
34-19 (e) Except as agreed to by all parties who have appeared in
34-20 the action, each party who has appeared shall participate in the
34-21 mediation and, except as provided by Subsection (f), shall share
34-22 the mediation fee.
34-23 (f) A party may not compel mediation under this section if
34-24 the amount of actual damages claimed is less than $15,000, unless
34-25 the party seeking to compel mediation agrees to pay the costs of
34-26 the mediation.
34-27 (g) Except as provided in this section, Section 154.023,
35-1 Civil Practice and Remedies Code, and Subchapters C and D, Chapter
35-2 154, Civil Practice and Remedies Code, apply to the appointment of
35-3 a mediator and to the mediation process provided by this section.
35-4 SECTION 14. Section 17(a), Article 21.21, Insurance Code, is
35-5 amended to read as follows:
35-6 (a) If a member of the insurance buying public has been
35-7 damaged by an unlawful method, act, or practice defined in Section
35-8 4 of this Article <or by the rules and regulations lawfully adopted
35-9 by the Board under this Article> or by any practice defined by
35-10 Section 17.46(b), <17.46 of the> Business & Commerce Code, <as
35-11 amended,> as an unlawful deceptive trade practice, the Board may
35-12 request the Attorney General to bring a class action, or the
35-13 individual damaged may bring an action on behalf of himself and
35-14 others similarly situated, to recover damages and relief as
35-15 provided in this section.
35-16 SECTION 15. Subsection (b), Section 33.002, Civil Practice
35-17 and Remedies Code, is amended to read as follows:
35-18 (b) This chapter does not apply to:
35-19 (1) an action to collect workers' compensation
35-20 benefits under the workers' compensation laws of this state,
35-21 Subtitle A, Title 5, Labor Code, <(Article 8306 et seq., Vernon's
35-22 Texas Civil Statutes)> or actions against an employer for exemplary
35-23 damages arising out of the death of an employee;
35-24 (2) an action brought under the Deceptive Trade
35-25 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
35-26 Business & Commerce Code) except as specifically provided in
35-27 Section 17.50 of that Act; or
36-1 (3) an action brought under Chapter 21, Insurance
36-2 Code.
36-3 SECTION 16. This Act takes effect September 1, 1995. This
36-4 Act applies prospectively only. Nothing in this Act affects either
36-5 procedurally or substantively a cause of action that arose in whole
36-6 or in part before the effective date of this Act.
36-7 SECTION 17. The importance of this legislation and the
36-8 crowded condition of the calendars in both houses create an
36-9 emergency and an imperative public necessity that the
36-10 constitutional rule requiring bills to be read on three several
36-11 days in each house be suspended, and this rule is hereby suspended.