76R12343 DB-D                           
         By Burnam, et al.                                     H.B. No. 1613
         Substitute the following for H.B. No. 1613:
         By Olivo                                          C.S.H.B. No. 1613
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the repair of a motor vehicle under an insurance
 1-3     policy.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Article 5.07-1, Insurance Code, is amended to
 1-6     read as follows:
 1-7           Art. 5.07-1.  REPAIR OF MOTOR VEHICLES;  DISCLOSURE OF
 1-8     CONSUMER INFORMATION.  (a)  Except as provided by rules duly
 1-9     adopted by the commissioner, under an auto insurance policy that is
1-10     delivered, issued for delivery, or renewed in this state a person
1-11     subject to this article [an insurer] may not, directly or
1-12     indirectly:
1-13                 (1)  specify on any damage report, estimate, or
1-14     appraisal[, limit its coverage under a policy covering damage to a
1-15     motor vehicle by specifying] the brand, type, kind, age, vendor,
1-16     supplier, or condition of the parts or products that may be used to
1-17     repair the motor vehicle;
1-18                 (2)  require the use of any part or product in the
1-19     repair of a motor vehicle; or
1-20                 (3)  require any repair person or facility to specify
1-21     on any damage report, estimate, or appraisal the brand, type, kind,
1-22     age, vendor, supplier, or condition of a part or product that may
1-23     be used to repair the motor vehicle.
1-24           (b)  Under an auto insurance policy that is delivered, issued
 2-1     for delivery, or renewed in this state, a person subject to this
 2-2     article may not directly or indirectly limit [by limiting] the
 2-3     beneficiary of the policy or a third-party claimant from selecting
 2-4     a repair person or facility to repair damage to the motor vehicle
 2-5     covered under the policy.
 2-6           (c) [(b)]  In connection with the repair of damage to a motor
 2-7     vehicle covered under an auto insurance policy, a person subject to
 2-8     this article [an insurer, an employee of an insurer, an agent of an
 2-9     insurer, a solicitor of insurance for an insurer, an insurance
2-10     adjuster, or an entity that employs an insurance adjuster] may not:
2-11                 (1)  solicit or accept a referral fee, [or] gratuity,
2-12     discount, or other form of compensation in exchange for referring a
2-13     beneficiary of a policy or third-party claimant to one or more [a]
2-14     repair persons [person] or facilities [facility] to repair the
2-15     damage;
2-16                 (2)  communicate [state or suggest, either orally or in
2-17     writing,] to a beneficiary of a policy or a third-party claimant
2-18     that, for the damage repair or parts replacement to be covered by
2-19     the policy, a beneficiary of a policy or a third-party claimant is
2-20     required to use one or more [a specific] repair persons [person] or
2-21     facilities;
2-22                 (3)  communicate to a beneficiary of a policy or a
2-23     third-party claimant that one or more [facility or a] repair
2-24     persons [person] or facilities [facility] identified on a
2-25     [preferred] list of repair persons and facilities maintained by or
2-26     compiled by a person subject to this article is preferred or
2-27     recommended [an insurer must be used by a beneficiary in order for
 3-1     the damage repair or parts replacement to be covered by the
 3-2     policy]; [or]
 3-3                 (4) [(3)]  restrict a beneficiary's or third-party
 3-4     claimant's right to choose a repair person or facility;
 3-5                 (5)  require [by requiring] the beneficiary of a policy
 3-6     or third-party claimant to travel an unreasonable distance to
 3-7     repair the damage;
 3-8                 (6)  threaten to remove the beneficiary's or claimant's
 3-9     motor vehicle from a repair person or facility selected by the
3-10     beneficiary or claimant for any reason;
3-11                 (7)  communicate to a beneficiary of a policy or a
3-12     third-party claimant that repairs, including parts, materials, or
3-13     labor, are guaranteed by a person other than the repair person or
3-14     facility that performs the damage repairs;
3-15                 (8)  communicate to a beneficiary of a policy or a
3-16     third-party claimant that alternative direct billed transportation
3-17     coverage is allowed following the filing of a claim only if the
3-18     damaged motor vehicle is repaired by a repair person or facility
3-19     selected or recommended by the insurer or an agent of the insurer;
3-20                 (9)  provide any other incentive to induce the
3-21     beneficiary of a policy or a third-party claimant to waive the
3-22     right to select the repair person or facility to repair damage to
3-23     the beneficiary's or the claimant's motor vehicle;
3-24                 (10)  reduce the amount paid for repairs by applying
3-25     predesignated limits on the quantity of or charges for materials
3-26     that are used to repair a motor vehicle; or
3-27                 (11)  enter into an agreement with a repair person or
 4-1     facility that:
 4-2                       (A)  requires the repair person or facility to
 4-3     use or penalizes the repair person or facility for the use of a
 4-4     sheet metal part on a motor vehicle that is not made by the motor
 4-5     vehicle manufacturer on a motor vehicle that is less than five
 4-6     years old;
 4-7                       (B)  requires the repair person or facility to
 4-8     use or penalizes the repair person or facility for the use of any
 4-9     collision repair procedure on a motor vehicle that does not restore
4-10     the motor vehicle to the motor vehicle's preaccident condition or
4-11     value; or
4-12                       (C)  requires the repair person or facility to
4-13     take any action that would result in reduction of motor vehicle
4-14     coverage for a motor vehicle under the insured's motor vehicle
4-15     insurance policy.
4-16           [(c)  A contract between an insurer and a repair person or
4-17     facility, including an agreement under which the repair person or
4-18     facility agrees to extend discounts for parts or labor to the
4-19     insurer in exchange for referrals by the insurer, may not result in
4-20     a reduction of coverage under the insured's auto insurance policy.]
4-21           (d)  A person subject to this article [An insurer] may not
4-22     directly or indirectly prohibit a repair person or facility from
4-23     providing a beneficiary of a policy or third-party claimant with
4-24     any information about the damage repairs to the beneficiary's or
4-25     the claimant's vehicle [that states the description, manufacturer,
4-26     or source of the parts used and the amounts charged to the insurer
4-27     for the parts and related labor].
 5-1           (e)  At the time the vehicle is presented to a person subject
 5-2     to this article [an insurer or an insurance adjuster or other
 5-3     person in connection with a claim for damage repair], the [insurer
 5-4     or insurance adjuster or other] person shall provide to the
 5-5     beneficiary or  third-party claimant notice of the provisions of
 5-6     this article.  The commissioner shall adopt a rule establishing the
 5-7     method or methods insurers shall use to comply with the notice
 5-8     provisions in this subsection.
 5-9           (f)  Any beneficiary, third-party claimant, consumer group,
5-10     representative of a consumer, insurer, [or] repair person, or
5-11     repair facility may submit a written, documented complaint to the
5-12     department with respect to an alleged violation of this article.
5-13           (g)  In the settlement of liability claims by a third party
5-14     against an insured for property damage claimed by the third party,
5-15     a person subject to this article [an insurer] may not communicate
5-16     to a third-party claimant that:
5-17                 (1)  in order for repairs to be covered, the claimant
5-18     is required to use a specific [require the third-party claimant to
5-19     have repairs made by a particular] repair person or facility; or
5-20                 (2)  the person prefers or recommends that the claimant
5-21     use a repair person or facility identified on a list of repair
5-22     persons and facilities maintained by or compiled by a person
5-23     subject to this article.
5-24           (h)  In the settlement of liability claims by a third party
5-25     against an insured for property damage claimed by the third party,
5-26     a person subject to this article may not:
5-27                 (1)  specify on a damage report, estimate, or appraisal
 6-1     the [to use a particular] brand, type, kind, age, vendor, supplier,
 6-2     or condition of parts or products that may be used to repair the
 6-3     motor vehicle;
 6-4                 (2)  require the use of any specific parts in the
 6-5     repair of a motor vehicle; or
 6-6                 (3)  require any repair person or facility to specify
 6-7     on any damage report, estimate, or appraisal the brand, type, kind,
 6-8     age, vendor, supplier, or condition of a part or product that may
 6-9     be used to repair the motor vehicle.
6-10           (i) [(h)]  The commissioner may exercise the rule-making
6-11     authority under Article 21.21-2 of this code with respect to any
6-12     fraudulent activity of any party under [to an agreement described
6-13     by Subsection (c) of] this article.
6-14           (j)  The [(i)  Any] rules adopted by the commissioner to
6-15     implement this article shall include, but not be limited to,
6-16     requirements that:
6-17                 (1)  any limitation described in Subsection (a) of this
6-18     article [section] is clearly and prominently displayed on the face
6-19     of the policy or certificate in lieu of a policy; and
6-20                 (2)  the insured give written consent to such a
6-21     limitation, following both oral and written notification of any
6-22     limitation at the time the policy is purchased.
6-23           (k)  The commissioner may not adopt a rule that allows an
6-24     insurer to specify a non-original equipment manufacturer part as
6-25     the basis for a damage report, estimate, or appraisal as a limit to
6-26     the cost of a repair to a part damaged in an accident in a case in
6-27     which:
 7-1                 (1)  the beneficiary's or third-party claimant's
 7-2     vehicle is still under the manufacturer's original warranty;
 7-3                 (2)  the part lacks a warranty that is at least equal
 7-4     to the warranty provided by the original equipment manufacturer for
 7-5     the same part;
 7-6                 (3)  the use of that part would reduce the market value
 7-7     of the beneficiary's vehicle once repairs are completed to a
 7-8     greater extent than would the use of an aftermarket part made by
 7-9     the original equipment manufacturer;
7-10                 (4)  the use of that part would lessen the safety of
7-11     the vehicle in any respect; or
7-12                 (5)  a person subject to this article cannot
7-13     satisfactorily demonstrate the suitability for use of the part to
7-14     the commissioner.
7-15           (l)  A person subject to this article who uses or references
7-16     survey data to directly or indirectly determine reasonable costs
7-17     for damage repairs or costs shall:
7-18                 (1)  ensure that the survey data was obtained by
7-19     statistically sound survey and research methods;
7-20                 (2)  publish a report that:
7-21                       (A)  contains the results of the survey;
7-22                       (B)  contains the complete and factual criteria
7-23     used for the survey; and
7-24                       (C)  divides the results of the survey by each
7-25     market surveyed;
7-26                 (3)  provide a copy of the report to the commissioner;
7-27     and
 8-1                 (4)  upon request, provide a copy of the report to:
 8-2                       (A)  a repair person or facility that
 8-3     participated in the survey; and
 8-4                       (B)  any person whose claim is decided or
 8-5     influenced by the results of the survey.
 8-6           (m)  This article applies to:
 8-7                 (1)  an insurer;
 8-8                 (2)  an insurance holding company;
 8-9                 (3)  an investment vehicle to which an insurer belongs;
8-10                 (4)  an affiliate corporation of an insurer;
8-11                 (5)  a person described by Subdivisions (1) through (4)
8-12     of this subsection who owns, controls, or has a significant
8-13     interest in the business of a person who is engaged in the
8-14     collision repair of motor vehicles;
8-15                 (6)  an employee or agent of a person described by
8-16     Subdivisions (1) through (4) of this subsection;
8-17                 (7)  a solicitor of insurance for a person described by
8-18     Subdivisions (1) through (4) of this subsection;
8-19                 (8)  an insurance adjuster or a person who employs an
8-20     insurance adjuster; or
8-21                 (9)  an appraiser.
8-22           (n)  A person commits an unfair and deceptive act or practice
8-23     in the business of insurance if the person violates this article
8-24     and is subject to each penalty or other sanction  provided by
8-25     Article 21.21 of this code for that violation.
8-26           (o)  In this article:
8-27                 (1)  "Communicate" means to infer, imply, or state a
 9-1     proposition or idea, either directly or indirectly, orally or in
 9-2     writing.
 9-3                 (2)  "Survey data" means data that:
 9-4                       (A)  results from a survey, evaluation, or other
 9-5     determination of market pricing for:
 9-6                             (i)  labor, parts, or other items relating
 9-7     to collision repair of a motor vehicle;
 9-8                             (ii)  the quality or quantity of parts or
 9-9     materials used for collision repair of a motor vehicle; or
9-10                             (iii)  the rates charged for collision
9-11     repair of a motor vehicle; and
9-12                       (B)  is used to determine or to influence,
9-13     directly or indirectly, prevailing market pricing or practice in
9-14     specific markets.
9-15           SECTION 2.  This Act takes effect September 1, 1999.
9-16           SECTION 3.  The importance of this legislation and the
9-17     crowded condition of the calendars in both houses create an
9-18     emergency and an imperative public necessity that the
9-19     constitutional rule requiring bills to be read on three several
9-20     days in each house be suspended, and this rule is hereby suspended.