By Bosse                                         H.B. No. 503

      75R6 DLF-D                           

                                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     promulgated by the board, under an auto insurance policy that is

1-11     delivered, issued for delivery, or renewed in this state an insurer

1-12     may not, directly or indirectly, limit its coverage under a policy

1-13     covering damage to a motor vehicle by specifying the brand, type,

1-14     kind, age, or condition of parts or products that may be used to

1-15     repair the vehicle or by limiting the beneficiary of the policy

1-16     from selecting a person or shop to repair damage to the motor

1-17     vehicle covered under the policy.

1-18           (b)  An insurer, an employee of an insurer, an agent of an

1-19     insurer, a solicitor of insurance for an insurer, an insurance

1-20     adjuster, or an entity that employs an insurance adjuster may not

1-21     solicit or accept a referral fee, gratuity, or other compensation

1-22     in connection with referring a person to another person or shop to

1-23     repair damage to a motor vehicle covered under an auto insurance

1-24     policy.

 2-1           (c)  Any rules promulgated by the board to implement this

 2-2     article shall include, but not be limited to, requirements that:

 2-3                 (1)  any limitation described in Subsection (a) of this

 2-4     section is clearly and prominently displayed on the face of the

 2-5     policy or certificate in lieu of a policy; and

 2-6                 (2)  the insured give written consent to such a

 2-7     limitation, following both oral and written notification of any

 2-8     limitation at the time the policy is purchased.

 2-9           SECTION 2.  Section 17(a), Chapter 407, Acts of the 63rd

2-10     Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas

2-11     Insurance Code), is amended to read as follows:

2-12           (a)  The department may discipline an adjuster or deny an

2-13     application under Section 5, Article 21.01-2, Insurance Code, for

2-14     any of the following causes:

2-15                 (1)  for any cause for which issuance of the license

2-16     could have been refused had it been existent and been known to the

2-17     board;

2-18                 (2)  if the applicant or licensee willfully violates or

2-19     knowingly participates in the violation of any provision of this

2-20     Act or Article 5.07-1(b), Insurance Code;

2-21                 (3)  if the applicant or licensee has obtained or

2-22     attempted to obtain any such license through willful

2-23     misrepresentation or fraud, or has failed to pass any examination

2-24     required under this Act;

2-25                 (4)  if the applicant or licensee has misappropriated,

2-26     or converted to the applicant's or licensee's own use, or has

2-27     illegally withheld moneys required to be held in a fiduciary

 3-1     capacity;

 3-2                 (5)  if the applicant or licensee has, with intent to

 3-3     deceive, materially misrepresented the terms or effect of an

 3-4     insurance contract, or has engaged in any fraudulent transactions;

 3-5     or

 3-6                 (6)  if the applicant or licensee is convicted, by

 3-7     final judgment, of a felony.

 3-8           SECTION 3.  Section 4, Article 21.21, Insurance Code, is

 3-9     amended to read as follows:

3-10           Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

3-11     DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby

3-12     defined as unfair methods of competition and unfair and deceptive

3-13     acts or practices in the business of insurance:

3-14                 (1)  Misrepresentations and False Advertising of Policy

3-15     Contracts.  Making, issuing, circulating, or causing to be made,

3-16     issued or circulated, any estimate, illustration, circular or

3-17     statement misrepresenting the terms of any policy issued or to be

3-18     issued or the benefits or advantages promised thereby or the

3-19     dividends or share of the surplus to be received thereon, or making

3-20     any false or misleading statements as to the dividends or share of

3-21     surplus previously paid on similar policies, or making any

3-22     misleading representation or any misrepresentation as to the

3-23     financial condition of any insurer, or as to the legal reserve

3-24     system upon which any life insurer operates, or using any name or

3-25     title of any policy or class of policies misrepresenting the true

3-26     nature thereof, or making any misrepresentation to any policyholder

3-27     insured in any company for the purpose of inducing or tending to

 4-1     induce such policyholder to lapse, forfeit, or surrender his

 4-2     insurance;

 4-3                 (2)  False Information and Advertising Generally.

 4-4     Making, publishing, disseminating, circulating or placing before

 4-5     the public, or causing, directly or indirectly, to be made,

 4-6     published, disseminated, circulated, or placed before the public,

 4-7     in a newspaper, magazine or other publication, or in the form of a

 4-8     notice, circular, pamphlet, letter or poster, or over any radio or

 4-9     television station, or in any other way, an advertisement,

4-10     announcement or statement containing any assertion, representation

4-11     or statement with respect to the business of insurance or with

4-12     respect to any person in the conduct of his insurance business,

4-13     which is untrue, deceptive or misleading;

4-14                 (3)  Defamation.  Making, publishing, disseminating, or

4-15     circulating, directly or indirectly, or aiding, abetting or

4-16     encouraging the making, publishing, disseminating or circulating of

4-17     any oral or written statement or any pamphlet, circular, article or

4-18     literature which is false, or maliciously critical of or derogatory

4-19     to the financial condition of any insurer, and which is calculated

4-20     to injure any person engaged in the business of insurance;

4-21                 (4)  Boycott, Coercion and Intimidation.  Entering into

4-22     any agreement to commit, or by any concerted action committing, any

4-23     act of boycott, coercion or intimidation resulting in or tending to

4-24     result in unreasonable restraint of, or monopoly in, the business

4-25     of insurance;

4-26                 (5)  False Financial Statements.  (a)  Filing with any

4-27     supervisory or other public official, or making, publishing,

 5-1     disseminating, circulating or delivering to any person, or placing

 5-2     before the public, or causing directly or indirectly, to be made,

 5-3     published, disseminated, circulated, delivered to any person, or

 5-4     placed before the public, any false statement of financial

 5-5     condition of an insurer with intent to deceive;

 5-6                       (b)  Making any false entry in any book, report

 5-7     or statement of any insurer with intent to deceive any agent or

 5-8     examiner lawfully appointed to examine into its condition or into

 5-9     any of its affairs, or any public official to whom such insurer is

5-10     required by law to report, or who has authority by law to examine

5-11     into its condition or into any of its affairs, or, with like

5-12     intent, wilfully omitting to make a true entry of any material fact

5-13     pertaining to the business of such insurer in any book, report or

5-14     statement of such insurer;

5-15                 (6)  Stock Operations and Advisory Board Contracts.

5-16     Issuing or delivering or permitting agents, officers or employees

5-17     to issue or deliver, company stock or other capital stock, or

5-18     benefit certificates or shares in any corporation, or securities or

5-19     any special or advisory board contracts or other contracts of any

5-20     kind promising returns and profits as an inducement to insurance.

5-21     Provided, however, that nothing in this subsection shall be

5-22     construed as prohibiting the issuing or delivery of participating

5-23     insurance policies otherwise authorized by law.

5-24                 (7)  Unfair Discrimination.  [(a)]  Making or

5-25     permitting any unfair discrimination between individuals of the

5-26     same class and equal expectation of life in the rates charged for

5-27     any contract of life insurance or of life annuity or in the

 6-1     dividends or other benefits payable thereon, or in any other of the

 6-2     terms and conditions of such contract.

 6-3                 (8)  Rebates.  (a)  Except as otherwise expressly

 6-4     provided by law, knowingly permitting or offering to make or making

 6-5     any contract of life insurance, life annuity or accident and health

 6-6     insurance, or agreement as to such contract other than as plainly

 6-7     expressed in the contract issued thereon, or paying or allowing, or

 6-8     giving or offering to pay, allow, or give, directly or indirectly,

 6-9     as inducement to such insurance, or annuity, any rebate of premiums

6-10     payable on the contract, or any special favor or advantage in the

6-11     dividends or other benefits thereon, or any valuable consideration

6-12     or inducement whatever not specified in the contract; or giving, or

6-13     selling, or purchasing or offering to give, sell, or purchase as

6-14     inducement to such insurance or annuity or in connection therewith,

6-15     any stocks, bonds, or other securities of any insurance company or

6-16     other corporation, association, or partnership, or any dividends or

6-17     profits accrued thereon, or anything of value whatsoever not

6-18     specified in the contract;

6-19                       (b)  Nothing in clause 7 or paragraph (a) of

6-20     clause 8 of this subsection shall be construed as including within

6-21     the definition of discrimination or rebates any of the following

6-22     practices:

6-23                             (i)  in the case of any contract of life

6-24     insurance or life annuity, paying bonuses to policyholders or

6-25     otherwise abating their premiums in whole or in part out of surplus

6-26     accumulated from non-participating insurance, provided that any

6-27     such bonuses or abatement of premiums shall be fair and equitable

 7-1     to policyholders and for the best interests of the company and its

 7-2     policyholders;

 7-3                             (ii)  in the case of life insurance

 7-4     policies issued on the industrial debit plan, making allowance to

 7-5     policyholders who have continuously for a specified period made

 7-6     premium payments directly to an office of the insurer in an amount

 7-7     which fairly represents the saving in collection expenses;

 7-8                             (iii)  readjustment of the rate of premium

 7-9     for a group insurance policy based on the loss or expense

7-10     experience thereunder, at the end of the first or any subsequent

7-11     policy year of insurance thereunder, which may be made retroactive

7-12     only for such policy year.

7-13                 (9)  Deceptive Name, Word, Symbol, Device, or Slogan.

7-14     Using, displaying, publishing, circulating, distributing, or

7-15     causing to be used, displayed, published, circulated, or

7-16     distributed in any letter, pamphlet, circular, contract, policy,

7-17     evidence of coverage, article, poster, or other document,

7-18     literature, or public media of:

7-19                       (a)  a name as the corporate or business name of

7-20     a person or entity engaged in an insurance or insurance related

7-21     business in this state that is the same as, or deceptively similar

7-22     to, the name adopted and used by an insurance entity, health

7-23     maintenance organization, third party administrator, or group

7-24     hospital service company authorized to do business under the laws

7-25     of this state; or

7-26                       (b)  a word, symbol, device, slogan, or any

7-27     combination of these items, whether registered or not registered,

 8-1     that is the same as or deceptively similar to one adopted and used

 8-2     by an insurance entity, health maintenance organization, third

 8-3     party administrator, or group hospital service company to

 8-4     distinguish such entities, products, or service from other

 8-5     entities, and includes the title, designation, character names, and

 8-6     distinctive features of broadcast or other advertising.

 8-7           Where two persons or entities are using a name, word, symbol,

 8-8     device, slogan, or any combination of these items that are the same

 8-9     or deceptively similar and are likely to cause confusion or a

8-10     mistake, the user who can demonstrate the first continuous actual

8-11     use of such name, word, symbol, device, slogan, or combination of

8-12     these items shall not have committed an unfair method of

8-13     competition or deceptive act or practice.

8-14                 (10)  Unfair Settlement Practices.  (a)  Engaging in

8-15     any of the following unfair settlement practices with respect to a

8-16     claim by an insured or beneficiary:

8-17                             (i)  misrepresenting to a claimant a

8-18     material fact or policy provision relating to coverage at issue;

8-19                             (ii)  failing to attempt in good faith to

8-20     effectuate a prompt, fair, and equitable settlement of a claim with

8-21     respect to which the insurer's liability has become reasonably

8-22     clear;

8-23                             (iii)  failing to attempt, in good faith,

8-24     to effectuate a prompt, fair, and equitable settlement under one

8-25     portion of a policy of a claim with respect to which the insurer's

8-26     liability has become reasonably clear in order to influence the

8-27     claimant to settle an additional claim under another portion of the

 9-1     coverage, provided that this prohibition does not apply if payment

 9-2     under one portion of the coverage constitutes evidence of liability

 9-3     under another portion of the policy;

 9-4                             (iv)  failing to provide promptly to a

 9-5     policyholder a reasonable explanation of the basis in the policy,

 9-6     in relation to the facts or applicable law, for the insurer's

 9-7     denial of a claim or for the offer of a compromise settlement of a

 9-8     claim;

 9-9                             (v)  failing within a reasonable time to:

9-10                                   (A)  affirm or deny coverage of a

9-11     claim to a policyholder; or

9-12                                   (B)  submit a reservation of rights

9-13     to a policyholder;

9-14                             (vi)  refusing, failing, or unreasonably

9-15     delaying an offer of settlement under applicable first-party

9-16     coverage on the basis that other coverage may be available or that

9-17     third parties are responsible for the damages suffered, except as

9-18     may be specifically provided in the policy;

9-19                             (vii)  undertaking to enforce a full and

9-20     final release of a claim from a policyholder when only a partial

9-21     payment has been made, provided that this prohibition does not

9-22     apply to a compromise settlement of a doubtful or disputed claim;

9-23                             (viii)  refusing to pay a claim without

9-24     conducting a reasonable investigation with respect to the claim;

9-25                             (ix)  with respect to a Texas personal auto

9-26     policy, delaying or refusing settlement of a claim solely because

9-27     there is other insurance of a different type available to satisfy

 10-1    all or any part of the loss forming the basis of that claim; or

 10-2                            (x)  requiring a claimant, as a condition

 10-3    of settling a claim, to produce the claimant's federal income tax

 10-4    returns for examination or investigation by the person unless:

 10-5                                  (A)  the claimant is ordered to

 10-6    produce those tax returns by a court;

 10-7                                  (B)  the claim involves a fire loss;

 10-8    or

 10-9                                  (C)  the claim involves lost profits

10-10    or income.

10-11                      (b)  Paragraph (a) of this clause does not

10-12    provide a cause of action to a third party asserting one or more

10-13    claims against an insured covered under a liability insurance

10-14    policy.

10-15                (11)  Misrepresentation of Insurance Policy.

10-16    Misrepresenting an insurance policy by:

10-17                      (a)  making an untrue statement of material fact;

10-18                      (b)  failing to state a material fact that is

10-19    necessary to make other statements made not misleading, considering

10-20    the circumstances under which the statements were made;

10-21                      (c)  making a statement in such manner as to

10-22    mislead a reasonably prudent person to a false conclusion of a

10-23    material fact;

10-24                      (d)  making a material misstatement of law; or

10-25                      (e)  failing to disclose any matter required by

10-26    law to be disclosed, including a failure to make disclosure in

10-27    accordance with another provision of this code.

 11-1                (12)  Illegal Remuneration for Referral for Repair.

 11-2    Violating Article 5.07-1(b) of this code.

 11-3          SECTION 4.  This Act takes effect September 1, 1997.

 11-4          SECTION 5.  The importance of this legislation and the

 11-5    crowded condition of the calendars in both houses create an

 11-6    emergency and an imperative public necessity that the

 11-7    constitutional rule requiring bills to be read on three several

 11-8    days in each house be suspended, and this rule is hereby suspended.