By Farrar                                              H.B. No. 423

         Substitute the following for H.B. No. 423:

         By Lewis of Tarrant                                C.S.H.B. No. 423

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to repair of motor vehicles covered under insurance

 1-3     policies and to civil remedies for unfair competition or practices

 1-4     in the business of insuring motor vehicles against damage.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Article 5.07-1, Insurance Code, is amended to

 1-7     read as follows:

 1-8           Art. 5.07-1.  REPAIR OF MOTOR VEHICLES; DISCLOSURE OF

 1-9     CONSUMER INFORMATION.  (a)  Except as provided by rules duly

1-10     adopted [promulgated] by the commissioner [board], under an auto

1-11     insurance policy that is delivered, issued for delivery, or renewed

1-12     in this state an insurer may not, directly or indirectly, limit its

1-13     coverage under a policy covering damage to a motor vehicle by

1-14     specifying the brand, type, kind, age, vendor, supplier, or

1-15     condition of parts or products that may be used to repair the

1-16     vehicle or by limiting the beneficiary of or claimant under of the

1-17     policy from selecting a repair person or facility [shop] to repair

1-18     damage to the motor vehicle covered under the policy.

1-19           (b)  In connection with the repair of damage to a motor

1-20     vehicle covered under an auto insurance policy, an insurer, an

1-21     employee of an insurer, an agent of an insurer, a solicitor of

1-22     insurance for an insurer, an insurance adjuster, or an entity that

1-23     employs an insurance adjuster may not:

1-24                 (1)  solicit or accept a referral fee, gratuity, or

 2-1     other compensation from any source in connection with referring a

 2-2     beneficiary or claimant to a repair person or facility to repair

 2-3     the damage;

 2-4                 (2)  state, imply, or suggest, either orally or in

 2-5     writing, to a beneficiary or claimant that a specific repair person

 2-6     or facility or a repair person or facility identified on a

 2-7     preferred list compiled by an insurer must be utilized by a

 2-8     beneficiary or claimant in order for the damage repair or parts

 2-9     replacement to be covered by the policy; or

2-10                 (3)  restrict a beneficiary's or claimant's right to

2-11     choose a repair person or facility by requiring the beneficiary or

2-12     claimant to travel an unreasonable distance to receive full payment

2-13     for the damage repair.

2-14           (c)  A contract between an insurer and a repair person or

2-15     facility may not cause the use of parts or labor that result in a

2-16     reduction in the actual cash value of the motor vehicle.

2-17           (d)  An insurer, or another person on behalf of the insurer,

2-18     shall direct the repair person or facility to present to the

2-19     beneficiary or claimant, upon completion of the repair work and

2-20     prior to release of the vehicle, a copy of the original invoice

2-21     describing and itemizing the cost of replacement parts used and

2-22     itemizing the repair charges.

2-23           (e)  At the time the vehicle is presented to an insurer or an

2-24     insurance adjuster or other person in connection with a claim for

2-25     damage repair, the insurer or insurance adjuster or other person

2-26     shall provide to the beneficiary or claimant, on a separate piece

2-27     of paper, the following notice:

 3-1         NOTICE TO INSURANCE CONSUMERS FROM THE STATE OF TEXAS

 3-2     BY LAW, YOU HAVE THE RIGHT TO SELECT WHERE YOUR MOTOR VEHICLE

 3-3     IS REPAIRED.  YOUR INSURANCE COMPANY IS REQUIRED TO PAY A

 3-4     REASONABLE RATE OF REIMBURSEMENT FOR REPAIR TO YOUR MOTOR

 3-5     VEHICLE.  IF YOU HAVE QUESTIONS ABOUT YOUR MOTOR VEHICLE

 3-6     REPAIR RIGHTS, CONTACT THE TEXAS DEPARTMENT OF INSURANCE AT

 3-7     1-800-252-3439.

 3-8           (f)  Any person, including a repair person or facility on

 3-9     behalf of a beneficiary or claimant under an auto insurance policy,

3-10     may complain to the department with respect to a violation of this

3-11     article.

3-12           (g)  Any rules adopted [promulgated] by the commissioner

3-13     [board] to implement this article shall include, but not be limited

3-14     to, requirements that:

3-15                 (1)  any limitation described in Subsection (a) of this

3-16     section is clearly and prominently displayed on the face of the

3-17     policy or certificate in lieu of a policy; and

3-18                 (2)  the insured give written consent to such a

3-19     limitation, following both oral and written notification of any

3-20     limitation at the time the policy is purchased.

3-21           SECTION 2.  Section 17(a), Chapter 407, Acts of the 63rd

3-22     Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas

3-23     Insurance Code), is amended to read as follows:

3-24           (a)  The department may discipline an adjuster or deny an

3-25     application under Section 5, Article 21.01-2, Insurance Code, for

3-26     any of the following reasons:

3-27                 (1)  for any cause for which issuance of the license

 4-1     could have been refused had it been existent and been known to the

 4-2     commissioner [board];

 4-3                 (2)  if the applicant or licensee willfully violates or

 4-4     knowingly participates in the violation of any provisions of this

 4-5     Act or Article 5.07-1(b)(1) or (c), Insurance Code.

 4-6                 (3)  if the applicant or licensee has obtained or

 4-7     attempted to obtain any such license through willful

 4-8     misrepresentation or fraud, or has failed to pass any examination

 4-9     required under this Act;

4-10                 (4)  if the applicant or licensee has misappropriated,

4-11     or converted to the applicant's or licensee's own use, or has

4-12     illegally withheld moneys required to be held in fiduciary

4-13     capacity;

4-14                 (5)  if the applicant or licensee has, with intent to

4-15     deceive, materially misrepresented the terms or effect of an

4-16     insurance contract, or has engaged in any fraudulent transactions;

4-17     or

4-18                 (6)  if the applicant or licensee is convicted, by

4-19     final judgment, of a felony.

4-20           SECTION 3.  Section 4, Article 21.21, Insurance Code, is

4-21     amended to read as follows:

4-22           Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

4-23     DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby

4-24     defined as unfair methods of competition and unfair and deceptive

4-25     acts or practices in the business of insurance:

4-26                 (1)  Misrepresentations and False Advertising of Policy

4-27     Contracts.  Making, issuing, circulating, or causing to be made,

 5-1     issued or circulated, any estimate, illustration, circular or

 5-2     statement misrepresenting the terms of any policy issued or to be

 5-3     issued or the benefits or advantages promised thereby or the

 5-4     dividends or share of the surplus to be received thereon, or making

 5-5     any false or misleading statements as to the dividends or share of

 5-6     surplus previously paid on similar policies, or making any

 5-7     misleading representation or any misrepresentation as to the

 5-8     financial condition of any insurer, or as to the legal reserve

 5-9     system upon which any life insurer operates, or using any name or

5-10     title of any policy or class of policies misrepresenting the true

5-11     nature thereof, or making any misrepresentation to any policyholder

5-12     insured in any company for the purpose of inducing or tending to

5-13     induce such policyholder to lapse, forfeit, or surrender his

5-14     insurance;

5-15                 (2)  False Information and Advertising Generally.

5-16     Making, publishing, disseminating, circulating or placing before

5-17     the public, or causing, directly or indirectly, to be made,

5-18     published, disseminated, circulated, or placed before the public,

5-19     in a newspaper, magazine or other publication, or in the form of a

5-20     notice, circular, pamphlet, letter or poster, or over any radio or

5-21     television station, or in any other way, an advertisement,

5-22     announcement or statement containing any assertion, representation

5-23     or statement with respect to the business of insurance or with

5-24     respect to any person in the conduct of his insurance business,

5-25     which is untrue, deceptive or misleading;

5-26                 (3)  Defamation.  Making, publishing, disseminating, or

5-27     circulating, directly or indirectly, or aiding, abetting or

 6-1     encouraging the making, publishing, disseminating or circulating of

 6-2     any oral or written statement or any pamphlet, circular, article or

 6-3     literature which is false, or maliciously critical of or derogatory

 6-4     to the financial condition of any insurer, and which is calculated

 6-5     to injure any person engaged in the business of insurance;

 6-6                 (4)  Boycott, Coercion and Intimidation.  Entering into

 6-7     any agreement to commit, or by any concerted action committing, any

 6-8     act of boycott, coercion or intimidation resulting in or tending to

 6-9     result in unreasonable restraint of, or monopoly in, the business

6-10     of insurance;

6-11                 (5)  False Financial Statements.  (a)  Filing with any

6-12     supervisory or other public official, or making, publishing,

6-13     disseminating, circulating or delivering to any person, or placing

6-14     before the public, or causing directly or indirectly, to be made,

6-15     published, disseminated, circulated, delivered to any person, or

6-16     placed before the public, any false statement of financial

6-17     condition of an insurer with intent to deceive;

6-18                       (b)  Making any false entry in any book, report

6-19     or statement of any insurer with intent to deceive any agent or

6-20     examiner lawfully appointed to examine into its condition or into

6-21     any of its affairs, or any public official to whom such insurer is

6-22     required by law to report, or who has authority by law to examine

6-23     into its condition or into any of its affairs, or, with like

6-24     intent, wilfully omitting to make a true entry of any material fact

6-25     pertaining to the business of such insurer in any book, report or

6-26     statement of such insurer;

6-27                 (6)  Stock Operations and Advisory Board Contracts.

 7-1     Issuing or delivering or permitting agents, officers or employees

 7-2     to issue or deliver, company stock or other capital stock, or

 7-3     benefit certificates or shares in any corporation, or securities or

 7-4     any special or advisory board contracts or other contracts of any

 7-5     kind promising returns and profits as an inducement to insurance.

 7-6     Provided, however, that nothing in this subsection shall be

 7-7     construed as prohibiting the issuing or delivery of participating

 7-8     insurance policies otherwise authorized by law.

 7-9                 (7)  Unfair Discrimination.  [(a)]  Making or

7-10     permitting any unfair discrimination between individuals of the

7-11     same class and equal expectation of life in the rates charged for

7-12     any contract of life insurance or of life annuity or in the

7-13     dividends or other benefits payable thereon, or in any other of the

7-14     terms and conditions of such contract.

7-15                 (8)  Rebates.  (a)  Except as otherwise expressly

7-16     provided by law, knowingly permitting or offering to make or making

7-17     any contract of life insurance, life annuity or accident and health

7-18     insurance, or agreement as to such contract other than as plainly

7-19     expressed in the contract issued thereon, or paying or allowing, or

7-20     giving or offering to pay, allow, or give, directly or indirectly,

7-21     as inducement to such insurance or annuity, any rebate of premiums

7-22     payable on the contract, or any special favor or advantage in the

7-23     dividends or other benefits thereon, or any valuable consideration

7-24     or inducement whatever not specified in the contract; or giving, or

7-25     selling, or purchasing or offering to give, sell, or purchase as

7-26     inducement to such insurance or annuity or in connection therewith,

7-27     any stocks, bonds, or other securities of any insurance company or

 8-1     other corporation, association, or partnership, or any dividends or

 8-2     profits accrued thereon, or anything of value whatsoever not

 8-3     specified in the contract;

 8-4                       (b)  Nothing in clause 7 or paragraph (a) of

 8-5     clause 8 of this subsection shall be construed as including within

 8-6     the definition of discrimination or rebates any of the following

 8-7     practices:

 8-8                             (i)  in the case of any contract of life

 8-9     insurance or life annuity, paying bonuses to policyholders or

8-10     otherwise abating their premiums in whole or in part out of surplus

8-11     accumulated from non-participating insurance, provided that any

8-12     such bonuses or abatement of premiums shall be fair and equitable

8-13     to policyholders and for the best interests of the company and its

8-14     policyholders;

8-15                             (ii)  in the case of life insurance

8-16     policies issued on the industrial debit plan, making allowance to

8-17     policyholders who have continuously for a specified period made

8-18     premium payments directly to an office of the insurer in an amount

8-19     which fairly represents the saving in collection expenses;

8-20                             (iii)  readjustment of the rate of premium

8-21     for a group insurance policy based on the loss or expense

8-22     experience thereunder, at the end of the first or any subsequent

8-23     policy year of insurance thereunder, which may be made retroactive

8-24     only for such policy year.

8-25                 (9)  Deceptive Name, Word, Symbol, Device, or Slogan.

8-26     Using, displaying, publishing, circulating, distributing, or

8-27     causing to be used, displayed, published, circulated, or

 9-1     distributed in any letter, pamphlet, circular, contract, policy,

 9-2     evidence of coverage, article poster, or other document,

 9-3     literature, or public media of:

 9-4                       (a)  a name as the corporate or business name of

 9-5     a person or entity engaged in an insurance or insurance related

 9-6     business in this state that is the same as, or deceptively similar

 9-7     to, the name adopted and used by an insurance entity, health

 9-8     maintenance organization, third party administrator, or group

 9-9     hospital service company authorized to do business under the laws

9-10     of this state; or

9-11                       (b)  a word, symbol, device, slogan, or any

9-12     combination of these items, whether registered or not registered,

9-13     that is the same as or deceptively similar to one adopted and used

9-14     by an insurance entity, health maintenance organization, third

9-15     party administrator, or group hospital service company to

9-16     distinguish such entities, products, or service from other

9-17     entities, and includes the title, designation, character names, and

9-18     distinctive features of broadcast or other advertising.

9-19           Where two persons or entities are using a name, word, symbol,

9-20     device, slogan, or any combination of these items that are the same

9-21     or deceptively similar and are likely to cause confusion or a

9-22     mistake, the user who can demonstrate the first continuous actual

9-23     use of such name, word, symbol, device, slogan, or combination of

9-24     these items shall not have committed an unfair method of

9-25     competition or deceptive act or practice.

9-26                 (10)  Unfair Settlement Practices.  (a)  Engaging in

9-27     any of the following unfair settlement practices with respect to a

 10-1    claim by an insured or beneficiary:

 10-2                            (i)  misrepresenting to a claimant a

 10-3    material fact or policy provision relating to coverage at issue;

 10-4                            (ii)  failing to attempt in good faith to

 10-5    effectuate a prompt, fair, and equitable settlement of a claim with

 10-6    respect to which the insurer's liability has become reasonably

 10-7    clear;

 10-8                            (iii)  failing to attempt, in good faith,

 10-9    to effectuate a prompt, fair, and equitable settlement under one

10-10    portion of a policy of a claim with respect to which the insurer's

10-11    liability has become reasonably clear in order to influence the

10-12    claimant to settle an additional claim under another portion of the

10-13    coverage, provided that this prohibition does not apply if payment

10-14    under one portion of the coverage constitutes evidence of liability

10-15    under another portion of the policy;

10-16                            (iv)  failing to provide promptly to a

10-17    policyholder a reasonable explanation of the basis in the policy,

10-18    in relation to the facts or applicable law, for the insurer's

10-19    denial of a claim or for the offer of a compromise settlement of a

10-20    claim;

10-21                            (v)  failing within a reasonable time to:

10-22                                  (A)  affirm or deny coverage of a

10-23    claim to a policyholder; or

10-24                                  (B)  submit a reservation of rights

10-25    to a policyholder;

10-26                            (vi)  refusing, failing, or unreasonably

10-27    delaying an offer of settlement under applicable first-party

 11-1    coverage on the basis that other coverage may be available or that

 11-2    third parties are responsible for the damages suffered, except as

 11-3    may be specifically provided in the policy;

 11-4                            (vii)  undertaking to enforce a full and

 11-5    final release of a claim from a policyholder when only a partial

 11-6    payment has been made, provided that this prohibition does not

 11-7    apply to a compromise settlement of a doubtful or disputed claim;

 11-8                            (viii)  refusing to pay a claim without

 11-9    conducting a reasonable investigation with respect to the claim;

11-10                            (ix)  with respect to a Texas personal auto

11-11    policy, delaying or refusing settlement of a claim solely because

11-12    there is other insurance of a different type available to satisfy

11-13    all or any part of the loss forming the basis of that claim; or

11-14                            (x)  requiring a claimant, as a condition

11-15    of settling a claim, to produce the claimant's federal income tax

11-16    returns for examination or investigation by the person unless:

11-17                                  (A)  the claimant is ordered to

11-18    produce those tax returns by a court;

11-19                                  (B)  the claim involves a fire loss;

11-20    or

11-21                                  (C)  the claim involves lost profits

11-22    or income.

11-23                      (b)  Paragraph (a) of this clause does not

11-24    provide a cause of action to a third party asserting one or more

11-25    claims against an insured covered under a liability insurance

11-26    policy.

11-27                (11)  Misrepresentation of Insurance Policy.

 12-1    Misrepresenting an insurance policy by:

 12-2                      (a)  making an untrue statement of material fact;

 12-3                      (b)  failing to state a material fact that is

 12-4    necessary to make other statements made not misleading, considering

 12-5    the circumstances under which the statements were made;

 12-6                      (c)  making a statement in such manner as to

 12-7    mislead a reasonably prudent person to a false conclusion of a

 12-8    material fact;

 12-9                      (d)  making a material misstatement of law; or

12-10                      (e)  failing to disclose any matter required by

12-11    law to be disclosed, including a failure to make disclosure in

12-12    accordance with another provision of this code.

12-13                (12)  Illegal Remuneration for Certain Motor Vehicle

12-14    Repair Information.  Violating Article 5.07-1(b)(1) or (c) of this

12-15    code.

12-16          SECTION 4.  This Act takes effect September 1, 1997.

12-17          SECTION 5.  The importance of this legislation and the

12-18    crowded condition of the calendars in both houses create an

12-19    emergency and an imperative public necessity that the

12-20    constitutional rule requiring bills to be read on three several

12-21    days in each house be suspended, and this rule is hereby suspended.