1-1     By:  Harris                                           S.B. No. 1191
 1-2           (In the Senate - Filed March 10, 1999; March 11, 1999, read
 1-3     first time and referred to Committee on Economic Development;
 1-4     April 16, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 6, Nays 0; April 16, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1191                  By:  Sibley
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the repair of a motor vehicle under an insurance
1-11     policy; providing penalties.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Article 5.07-1, Insurance Code, is amended to
1-14     read as follows:
1-15           Art. 5.07-1.  REPAIR OF MOTOR VEHICLES;  DISCLOSURE OF
1-16     CONSUMER INFORMATION.  (a)  Except as provided by rules duly
1-17     adopted by the commissioner, under an auto insurance policy that is
1-18     delivered, issued for delivery, or renewed in this state a person
1-19     subject to this article [an insurer] may not, directly or
1-20     indirectly:
1-21                 (1)  specify on any damage report, estimate, or
1-22     appraisal[, limit its coverage under a policy covering damage to a
1-23     motor vehicle by specifying] the brand, type, kind, age, vendor,
1-24     supplier, or condition of the parts or products that may be used to
1-25     repair the motor vehicle;
1-26                 (2)  require the use of any part or product in the
1-27     repair of a motor vehicle; or
1-28                 (3)  require any repair person or facility to specify
1-29     on any damage report, estimate, or appraisal the brand, type, kind,
1-30     age, vendor, supplier, or condition of a part or product that may
1-31     be used to repair the motor vehicle.
1-32           (b)  Under an auto insurance policy that is delivered, issued
1-33     for delivery, or renewed in this state, a person subject to this
1-34     article may not directly or indirectly limit [by limiting] the
1-35     beneficiary of the policy or a third-party claimant from selecting
1-36     a repair person or facility to repair damage to the motor vehicle
1-37     covered under the policy.
1-38           (c) [(b)]  In connection with the repair of damage to a motor
1-39     vehicle covered under an auto insurance policy, a person subject to
1-40     this article [an insurer, an employee of an insurer, an agent of an
1-41     insurer, a solicitor of insurance for an insurer, an insurance
1-42     adjuster, or an entity that employs an insurance adjuster] may not:
1-43                 (1)  solicit or accept a referral fee, [or] gratuity,
1-44     discount, or other form of compensation in exchange for referring a
1-45     beneficiary of a policy or third-party claimant to one or more [a]
1-46     repair persons [person] or facilities [facility] to repair the
1-47     damage;
1-48                 (2)  communicate [state or suggest, either orally or in
1-49     writing,] to a beneficiary of a policy or a third-party claimant
1-50     that, for the damage repair or parts replacement to be covered by
1-51     the policy, a beneficiary of a policy or a third-party claimant is
1-52     required to use one or more [a specific] repair persons [person] or
1-53     facilities;
1-54                 (3)  communicate to a beneficiary of a policy or a
1-55     third-party claimant that one or more [facility or a] repair
1-56     persons [person] or facilities [facility] identified on a
1-57     [preferred] list of repair persons and facilities maintained by or
1-58     compiled by a person subject to this article is preferred or
1-59     recommended [an insurer must be used by a beneficiary in order for
1-60     the damage repair or parts replacement to be covered by the
1-61     policy]; [or]
1-62                 (4) [(3)]  restrict a beneficiary's or third-party
1-63     claimant's right to choose a repair person or facility;
1-64                 (5)  require [by requiring] the beneficiary of a policy
 2-1     or third-party claimant to travel an unreasonable distance to
 2-2     repair the damage;
 2-3                 (6)  threaten to remove the beneficiary's or claimant's
 2-4     motor vehicle from a repair person or facility selected by the
 2-5     beneficiary or claimant for any reason;
 2-6                 (7)  communicate to a beneficiary of a policy or a
 2-7     third-party claimant that repairs, including parts, materials, or
 2-8     labor, are guaranteed by a person other than the repair person or
 2-9     facility that performs the damage repairs;
2-10                 (8)  communicate to a beneficiary of a policy or a
2-11     third-party claimant that alternative direct billed transportation
2-12     coverage is allowed following the filing of a claim only if the
2-13     damaged motor vehicle is repaired by a repair person or facility
2-14     selected or recommended by the insurer or an agent of the insurer;
2-15                 (9)  provide any other incentive to induce the
2-16     beneficiary of a policy or a third-party claimant to waive the
2-17     right to select the repair person or facility to repair damage to
2-18     the beneficiary's or the claimant's motor vehicle; or
2-19                 (10)  reduce the amount paid for repairs by applying
2-20     predesignated limits on the quantity of or charges for materials
2-21     that are used to repair a motor vehicle.
2-22           [(c)  A contract between an insurer and a repair person or
2-23     facility, including an agreement under which the repair person or
2-24     facility agrees to extend discounts for parts or labor to the
2-25     insurer in exchange for referrals by the insurer, may not result in
2-26     a reduction of coverage under the insured's auto insurance policy.]
2-27           (d)  An insurer may not contract with a repair person or
2-28     facility for any purpose other than for the provision of damage
2-29     reports, estimates, or appraisals.
2-30           (e)  A person subject to this article [An insurer] may not
2-31     directly or indirectly prohibit a repair person or facility from
2-32     providing a beneficiary of a policy or third-party claimant with
2-33     any information about the damage repairs to the beneficiary's or
2-34     the claimant's vehicle [that states the description, manufacturer,
2-35     or source of the parts used and the amounts charged to the insurer
2-36     for the parts and related labor].
2-37           (f) [(e)]  At the time the vehicle is presented to a person
2-38     subject to this article [an insurer or an insurance adjuster or
2-39     other person in connection with a claim for damage repair], the
2-40     [insurer or insurance adjuster or other] person shall provide to
2-41     the beneficiary or third-party claimant notice of the provisions of
2-42     this article.  The commissioner shall adopt a rule establishing the
2-43     method or methods insurers shall use to comply with the notice
2-44     provisions in this subsection.
2-45           (g) [(f)]  Any beneficiary, third-party claimant, consumer
2-46     group, representative of a consumer, insurer, [or] repair person,
2-47     or repair facility may submit a written, documented complaint to
2-48     the department with respect to an alleged violation of this
2-49     article.
2-50           (h) [(g)]  In the settlement of liability claims by a third
2-51     party against an insured for property damage claimed by the third
2-52     party, a person subject to this article [an insurer] may not
2-53     communicate to a third-party claimant that:
2-54                 (1)  in order for repairs to be covered, the claimant
2-55     is required to use a specific [require the third-party claimant to
2-56     have repairs made by a particular] repair person or facility; or
2-57                 (2)  the person prefers or recommends that the claimant
2-58     use a repair person or facility identified on a list of repair
2-59     persons and facilities maintained by or compiled by a person
2-60     subject to this article.
2-61           (i)  In the settlement of liability claims by a third party
2-62     against an insured for property damage claimed by the third party,
2-63     a person subject to this article may not:
2-64                 (1)  specify on a damage report, estimate, or appraisal
2-65     the [to use a particular] brand, type, kind, age, vendor, supplier,
2-66     or condition of parts or products that may be used to repair the
2-67     motor vehicle;
2-68                 (2)  require the use of any specific parts in the
2-69     repair of a motor vehicle; or
 3-1                 (3)  require any repair person or facility to specify
 3-2     on any damage report, estimate, or appraisal the brand, type, kind,
 3-3     age, vendor, supplier, or condition of a part or product that may
 3-4     be used to repair the motor vehicle.
 3-5           (j) [(h)]  The commissioner may exercise the rule-making
 3-6     authority under Article 21.21-2 of this code with respect to any
 3-7     fraudulent activity of any party under [to an agreement described
 3-8     by Subsection (c) of] this article.
 3-9           (k)  The [(i) Any] rules adopted by the commissioner to
3-10     implement this article shall include, but not be limited to,
3-11     requirements that:
3-12                 (1)  any limitation described in Subsection (a) of this
3-13     section is clearly and prominently displayed on the face of the
3-14     policy or certificate in lieu of a policy; and
3-15                 (2)  the insured give written consent to such a
3-16     limitation, following both oral and written notification of any
3-17     limitation at the time the policy is purchased.
3-18           (l)  The commissioner may not adopt a rule that allows an
3-19     insurer to specify a non-original equipment manufacturer part as
3-20     the basis for a damage report, estimate, or appraisal as a limit to
3-21     the cost of a repair to a part damaged in an accident in a case in
3-22     which:
3-23                 (1)  the beneficiary's or third-party claimant's
3-24     vehicle is still under the manufacturer's original warranty;
3-25                 (2)  the part lacks a warranty that is at least equal
3-26     to the warranty provided by the original equipment manufacturer for
3-27     the same part;
3-28                 (3)  the use of that part would reduce the market value
3-29     of the beneficiary's vehicle once repairs are completed to a
3-30     greater extent than would the use of an aftermarket part made by
3-31     the original equipment manufacturer;
3-32                 (4)  the use of that part would lessen the safety of
3-33     the vehicle in any respect; or
3-34                 (5)  a person subject to this article cannot
3-35     satisfactorily demonstrate the suitability for use of the part to
3-36     the commissioner.
3-37           (m)  A person subject to this article who uses or references
3-38     survey data to directly or indirectly determine reasonable costs
3-39     for damage repairs or costs shall:
3-40                 (1)  ensure that the survey data was obtained by
3-41     statistically sound survey and research methods;
3-42                 (2)  publish a report that:
3-43                       (A)  contains the results of the survey;
3-44                       (B)  contains the complete and factual criteria
3-45     used for the survey; and
3-46                       (C)  divides the results of the survey by each
3-47     market surveyed;
3-48                 (3)  provide a copy of the report to the commissioner;
3-49     and
3-50                 (4)  upon request, provide a copy of the report to:
3-51                       (A)  a repair person or facility that
3-52     participated in the survey; and
3-53                       (B)  any person whose claim is decided or
3-54     influenced by the results of the survey.
3-55           (n)  This article applies to:
3-56                 (1)  an insurer;
3-57                 (2)  an insurance holding company;
3-58                 (3)  an investment vehicle to which an insurer belongs;
3-59                 (4)  an affiliate corporation of an insurer;
3-60                 (5)  a person described by Subdivisions (1) through (4)
3-61     of this subsection who owns, controls, or has a significant
3-62     interest in the business of a person who is engaged in the
3-63     collision repair of motor vehicles;
3-64                 (6)  an employee or agent of a person described by
3-65     Subdivisions (1) through (4) of this subsection;
3-66                 (7)  a solicitor of insurance for a person described by
3-67     Subdivisions (1) through (4) of this subsection;
3-68                 (8)  a person who is directly or indirectly controlled
3-69     by a person described by Subdivisions (1) through (4) of this
 4-1     subsection, either contractually or by other means;
 4-2                 (9)  an insurance adjuster or a person who employs an
 4-3     insurance adjuster; or
 4-4                 (10)  an appraiser.
 4-5           (o)  A person commits an unfair and deceptive act or practice
 4-6     in the business of insurance if the person violates this article
 4-7     and is subject to each penalty or other sanction provided by
 4-8     Article 21.21 of this code for that violation.
 4-9           (p)  In this article:
4-10                 (1)  "Communicate" means to infer, imply, or state a
4-11     proposition or idea, either directly or indirectly, orally or in
4-12     writing.
4-13                 (2)  "Survey data" means data that:
4-14                       (A)  results from a survey, evaluation, or other
4-15     determination of market pricing for:
4-16                             (i)  labor, parts, or other items relating
4-17     to collision repair of a motor vehicle;
4-18                             (ii)  the quality or quantity of parts or
4-19     materials used for collision repair of a motor vehicle; or
4-20                             (iii)  the rates charged for collision
4-21     repair of a motor vehicle; and
4-22                       (B)  is used to determine or to influence,
4-23     directly or indirectly, prevailing market pricing or practice in
4-24     specific markets.
4-25           SECTION 2.  This Act takes effect September 1, 1999.
4-26           SECTION 3.  Subsection (d), Article 5.07-1, Insurance Code,
4-27     as amended by this Act, applies only to a contract entered into on
4-28     or after the effective date of this Act.  A contract that is
4-29     entered into before the effective date of this Act is governed by
4-30     the law in effect immediately before that date and that law is
4-31     continued in effect for that purpose.
4-32           SECTION 4.  The importance of this legislation and the
4-33     crowded condition of the calendars in both houses create an
4-34     emergency and an imperative public necessity that the
4-35     constitutional rule requiring bills to be read on three several
4-36     days in each house be suspended, and this rule is hereby suspended.
4-37                                  * * * * *