1-1     By:  Carona                                           S.B. No. 1531
 1-2           (In the Senate - Filed March 12, 1999; March 15, 1999, read
 1-3     first time and referred to Committee on Economic Development;
 1-4     April 9, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 4, Nays 0; April 9, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1531                  By:  Carona
                                A BILL TO BE ENTITLED
 1-8                                   AN ACT
 1-9     relating to unfair settlement practices in the business of
1-10     insurance.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Section 4, Article 21.21, Insurance Code, is
1-13     amended to read as follows:
1-14           Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR
1-15     DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby
1-16     defined as unfair methods of competition and unfair and deceptive
1-17     acts or practices in the business of insurance:
1-18                 (1)  Misrepresentations and False Advertising of Policy
1-19     Contracts. Making, issuing, circulating, or causing to be made,
1-20     issued or circulated, any estimate, illustration, circular or
1-21     statement misrepresenting the terms of any policy issued or to be
1-22     issued or the benefits or advantages promised thereby or the
1-23     dividends or share of the surplus to be received thereon, or making
1-24     any false or misleading statements as to the dividends or share of
1-25     surplus previously paid on similar policies, or making any
1-26     misleading representation or any misrepresentation as to the
1-27     financial condition of any insurer, or as to the legal reserve
1-28     system upon which any life insurer operates, or using any name or
1-29     title of any policy or class of policies misrepresenting the true
1-30     nature thereof, or making any misrepresentation to any policyholder
1-31     insured in any company for the purpose of inducing or tending to
1-32     induce such policyholder to lapse, forfeit, or surrender his
1-33     insurance;
1-34                 (2)  False Information and Advertising Generally.
1-35     Making, publishing, disseminating, circulating or placing before
1-36     the public, or causing, directly or indirectly, to be made,
1-37     published, disseminated, circulated, or placed before the public,
1-38     in a newspaper, magazine or other publication, or in the form of a
1-39     notice, circular, pamphlet, letter or poster, or over any radio or
1-40     television station, or in any other way, an advertisement,
1-41     announcement or statement containing any assertion, representation
1-42     or statement with respect to the business of insurance or with
1-43     respect to any person in the conduct of his insurance business,
1-44     which is untrue, deceptive or misleading;
1-45                 (3)  Defamation.  Making, publishing, disseminating, or
1-46     circulating, directly or indirectly, or aiding, abetting or
1-47     encouraging the making, publishing, disseminating or circulating of
1-48     any oral or written statement or any pamphlet, circular, article or
1-49     literature which is false, or maliciously critical of or derogatory
1-50     to the financial condition of any insurer, and which is calculated
1-51     to injure any person engaged in the business of insurance;
1-52                 (4)  Boycott, Coercion and Intimidation.  Entering into
1-53     any agreement to commit, or by any concerted action committing, any
1-54     act of boycott, coercion or intimidation resulting in or tending to
1-55     result in unreasonable restraint of, or monopoly in, the business
1-56     of insurance;
1-57                 (5)  False Financial Statements.  (a)  Filing with any
1-58     supervisory or other public official, or making, publishing,
1-59     disseminating, circulating or delivering to any person, or placing
1-60     before the public, or causing directly or indirectly, to be made,
1-61     published, disseminated, circulated, delivered to any person, or
1-62     placed before the public, any false statement of financial
1-63     condition of an insurer with intent to deceive;
1-64                       (b)  Making any false entry in any book, report
 2-1     or statement of any insurer with intent to deceive any agent or
 2-2     examiner lawfully appointed to examine into its condition or into
 2-3     any of its affairs, or any public official to whom such insurer is
 2-4     required by law to report, or who has authority by law to examine
 2-5     into its condition or into any of its affairs, or, with like
 2-6     intent, wilfully omitting to make a true entry of any material fact
 2-7     pertaining to the business of such insurer in any book, report or
 2-8     statement of such insurer;
 2-9                 (6)  Stock Operations and Advisory Board Contracts.
2-10     Issuing or delivering or permitting agents, officers or employees
2-11     to issue or deliver, company stock or other capital stock, or
2-12     benefit certificates or shares in any corporation, or securities or
2-13     any special or advisory board contracts or other contracts of any
2-14     kind promising returns and profits as an inducement to insurance.
2-15     Provided, however, that nothing in this subsection shall be
2-16     construed as prohibiting the issuing or delivery of participating
2-17     insurance policies otherwise authorized by law;[.]
2-18                 (7)  Unfair Discrimination.  [(a)] Making or permitting
2-19     any unfair discrimination between individuals of the same class and
2-20     equal expectation of life in the rates charged for any contract of
2-21     life insurance or of life annuity or in the dividends or other
2-22     benefits payable thereon, or in any other of the terms and
2-23     conditions of such contract;
2-24                 (8)  Rebates.  (a)  Except as otherwise expressly
2-25     provided by law, knowingly permitting or offering to make or making
2-26     any contract of life insurance, life annuity or accident and health
2-27     insurance, or agreement as to such contract other than as plainly
2-28     expressed in the contract issued thereon, or paying or allowing, or
2-29     giving or offering to pay, allow, or give, directly or indirectly,
2-30     as inducement to such insurance, or annuity, any rebate of premiums
2-31     payable on the contract, or any special favor or advantage in the
2-32     dividends or other benefits thereon, or any valuable consideration
2-33     or inducement whatever not specified in the contract; or giving, or
2-34     selling, or purchasing or offering to give, sell, or purchase as
2-35     inducement to such insurance or annuity or in connection therewith,
2-36     any stocks, bonds, or other securities of any insurance company or
2-37     other corporation, association, or partnership, or any dividends or
2-38     profits accrued thereon, or anything of value whatsoever not
2-39     specified in the contract;
2-40                       (b)  Nothing in clause 7 or paragraph (a) of
2-41     clause 8 of this subsection shall be construed as including within
2-42     the definition of discrimination or rebates any of the following
2-43     practices:
2-44                             (i)  in the case of any contract of life
2-45     insurance or life annuity, paying bonuses to policyholders or
2-46     otherwise abating their premiums in whole or in part out of surplus
2-47     accumulated from non-participating insurance, provided that any
2-48     such bonuses or abatement of premiums shall be fair and equitable
2-49     to policyholders and for the best interests of the company and its
2-50     policyholders;
2-51                             (ii)  in the case of life insurance
2-52     policies issued on the industrial debit plan, making allowance to
2-53     policyholders who have continuously for a specified period made
2-54     premium payments directly to an office of the insurer in an amount
2-55     which fairly represents the saving in collection expenses;
2-56                             (iii)  readjustment of the rate of premium
2-57     for a group insurance policy based on the loss or expense
2-58     experience thereunder, at the end of the first or any subsequent
2-59     policy year of insurance thereunder, which may be made retroactive
2-60     only for such policy year;[.]
2-61                 (9)  Deceptive Name, Word, Symbol, Device, or Slogan.
2-62     (a)  Using, displaying, publishing, circulating, distributing, or
2-63     causing to be used, displayed, published, circulated, or
2-64     distributed in any letter, pamphlet, circular, contract, policy,
2-65     evidence of coverage, article, poster, or other document,
2-66     literature, or public media of:
2-67                             (i) [(a)]  a name as the corporate or
2-68     business name of a person or entity engaged in an insurance or
2-69     insurance related business in this state that is the same as, or
 3-1     deceptively similar to, the name adopted and used by an insurance
 3-2     entity, health maintenance organization, third party administrator,
 3-3     or group hospital service company authorized to do business under
 3-4     the laws of this state; or
 3-5                             (ii) [(b)]  a word, symbol, device, slogan,
 3-6     or any combination of these items, whether registered or not
 3-7     registered, that is the same as or deceptively similar to one
 3-8     adopted and used by an insurance entity, health maintenance
 3-9     organization, third party administrator, or group hospital service
3-10     company to distinguish such entities, products, or service from
3-11     other entities, and includes the title, designation, character
3-12     names, and distinctive features of broadcast or other
3-13     advertising;[.]
3-14                       (b)  Where two persons or entities are using a
3-15     name, word, symbol, device, slogan, or any combination of these
3-16     items that are the same or deceptively similar and are likely to
3-17     cause confusion or a mistake, the user who can demonstrate the
3-18     first continuous actual use of such name, word, symbol, device,
3-19     slogan, or combination of these items shall not have committed an
3-20     unfair method of competition or deceptive act or practice;[.]
3-21                 (10)  Unfair Settlement Practices.  (a)  Engaging in
3-22     any of the following unfair settlement practices with respect to a
3-23     claim by an insured, [or] beneficiary, or health care provider, or
3-24     a person that has contracted to provide services to an insured or
3-25     beneficiary:
3-26                             (i)  misrepresenting to a claimant a
3-27     material fact or policy provision relating to coverage at issue;
3-28                             (ii)  failing to attempt in good faith to
3-29     effectuate a prompt, fair, and equitable settlement of a claim with
3-30     respect to which the insurer's liability has become reasonably
3-31     clear;
3-32                             (iii)  failing to attempt, in good faith,
3-33     to effectuate a prompt, fair, and equitable settlement under one
3-34     portion of a policy of a claim with respect to which the insurer's
3-35     liability has become reasonably clear in order to influence the
3-36     claimant to settle an additional claim under another portion of the
3-37     coverage, provided that this prohibition does not apply if payment
3-38     under one portion of the coverage constitutes evidence of liability
3-39     under another portion of the policy;
3-40                             (iv)  failing to provide promptly to a
3-41     policyholder a reasonable explanation of the basis in the policy,
3-42     in relation to the facts or applicable law, for the insurer's
3-43     denial of a claim or for the offer of a compromise settlement of a
3-44     claim;
3-45                             (v)  failing within a reasonable time to:
3-46                                            (A)  affirm or deny coverage
3-47     of a claim to a policyholder; or
3-48                                            (B)  submit a reservation of
3-49     rights to a policyholder;
3-50                             (vi)  refusing, failing, or unreasonably
3-51     delaying an offer of settlement under applicable first-party
3-52     coverage on the basis that other coverage may be available or that
3-53     third parties are responsible for the damages suffered, except as
3-54     may be specifically provided in the policy;
3-55                             (vii)  undertaking to enforce a full and
3-56     final release of a claim from a policyholder when only a partial
3-57     payment has been made, provided that this prohibition does not
3-58     apply to a compromise settlement of a doubtful or disputed claim;
3-59                             (viii) refusing to pay a claim without
3-60     conducting a reasonable investigation with respect to the claim;
3-61                             (ix)  with respect to a Texas personal auto
3-62     policy, delaying or refusing settlement of a claim solely because
3-63     there is other insurance of a different type available to satisfy
3-64     all or any part of the loss forming the basis of that claim; or
3-65                             (x)  requiring a claimant, as a condition
3-66     of settling a claim, to produce the claimant's federal income tax
3-67     returns for examination or investigation by the person unless:
3-68                                            (A)  the claimant is ordered
3-69     to produce those tax returns by a court;
 4-1                                            (B)  the claim involves a
 4-2     fire loss; or
 4-3                                            (C)  the claim involves lost
 4-4     profits or income;[.]
 4-5                       (b)  Paragraph (a) of this clause does not
 4-6     provide a cause of action to a third party asserting one or more
 4-7     claims against an insured covered under a liability insurance
 4-8     policy;[.]
 4-9                 (11)  Misrepresentation of Insurance Policy.
4-10     Misrepresenting an insurance policy by:
4-11                       (a)  making an untrue statement of material fact;
4-12                       (b)  failing to state a material fact that is
4-13     necessary to make other statements made not misleading, considering
4-14     the circumstances under which the statements were made;
4-15                       (c)  making a statement in such manner as to
4-16     mislead a reasonably prudent person to a false conclusion of a
4-17     material fact;
4-18                       (d)  making a material misstatement of law; or
4-19                       (e)  failing to disclose any matter required by
4-20     law to be disclosed, including a failure to make disclosure in
4-21     accordance with another provision of this code.
4-22           SECTION 2.  This Act takes effect September 1, 1999, and
4-23     applies only to a claim that accrues on or after the effective date
4-24     of this Act.  A claim that accrues before the effective date of
4-25     this Act is governed by the law as it existed immediately before
4-26     the effective date of this Act, and that law is continued in effect
4-27     for that purpose.
4-28           SECTION 3.  The importance of this legislation and the
4-29     crowded condition of the calendars in both houses create an
4-30     emergency and an imperative public necessity that the
4-31     constitutional rule requiring bills to be read on three several
4-32     days in each house be suspended, and this rule is hereby suspended.
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