SRC-TBR H.B. 548 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 548
By: Keffer (Jackson)
Business & Commerce
5/6/2001
Engrossed


DIGEST AND PURPOSE 

Texas law requires a contractor to secure a payment bond and a performance
bond on all public projects.  H.B. 548 amends the Insurance Code to provide
that the business of insurance includes the actions of a surety company,
and sets forth provisions relating to the duties of a commercial surety. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the commissioner of insurance
is SECTION 1 (Sec.5. Chapter 7, Insurance Code), of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 7, Insurance Code, by adding Article 7.20 as
follows: 

Art. 7.20.  CONSTRUCTION PAYMENT BOND OF SURETY COMPANY; PROMPT PAYMENT

Sec. 1.  DEFINITIONS.  Defines "claimant," "construction payment bond,"
"notice of claim," and "surety company." 

Sec. 2.  ACKNOWLEDGMENT AND INVESTIGATION OF CLAIM.  (a)  Requires a surety
company that has issued a construction payment bond to, not later than the
15th day after the date of receipt of notice of claim under the bond take
certain actions. 

(b)  Provides that nothing in this article exempts a claimant from
compliance with any applicable statutory or contractual notice requirement. 

(c)  Provides that if the construction payment bond provides an address of
the surety company to which claims should be submitted, the notice of claim
is effective on receipt of the notice at that address. 

Sec. 3.  ACCEPTANCE OR REJECTION OF CLAIM.  (a)  Requires a surety company,
except as provided by Subsection (c) of this section, to notify a claimant
in writing of the acceptance or rejection of a claim not later than the
30th day after the date the surety company receives all documents, items of
information, accountings, statements, and forms requested by the surety
company as provided by Section 2 of this article. 

(b)  Provides that if the surety company rejects all or part of the claim,
the notice required by Subsection (a) of this section must state in
specific terms the reasons for the rejection known to the surety company at
that time.  

(c)  Requires the surety company, if the surety company is unable to accept
or reject the claim within the period specified by Subsection (a) of this
section, to provide written notice to the claimant, not later than the date
specified under Subsection (a), that the  surety company is unable to
accept or reject the claim within that period.  Requires the notice
provided under this subsection to meet certain requirements. 

(d)  Requires the surety company, not later than the 30th day after the
date a surety company notifies a claimant under Subsection (c) of this
section, to notify the claimant in writing of the acceptance or rejection
of the claim.  Requires the surety company, if the surety company rejects
all or part of the claim, to state in specific terms the reasons for the
rejection known to the surety company at that time. 

 (e)  Authorizes a surety company, in addition to any other contractual or
statutory basis for denying a claim, to reject all or any part of a claim
that is the subject of a legitimate dispute between the principal obligor
and the claimant or for which the claimant has failed to provide supporting
documents or information reasonably requested by the surety company. 

(f)  Authorizes the time limits provided by this section and Section 2 of
this article to be varied by any statute requiring a construction payment
bond. 

(g)  Provides that this section does not preclude a surety company from
asserting any defense in any action brought by a claimant against the
construction payment bond if a good faith effort is made to inform the
claimant in accordance with this section of reasons for rejecting all or
part of the claim. 

Sec. 4.  PAYMENT OF CLAIM.  (a)  Requires the surety company, if a surety
company notifies a claimant under Section 3 of this article that the surety
company accepts a claim or part of a claim, to pay the claim not later than
the 15th day after the date of the notice. 

(b)  Requires the surety company, if payment of the claim or part of the
claim is conditioned on the execution of a document or performance of an
act by the claimant, to pay the claim not later than the seventh day after
the date the surety company receives the executed document or evidence that
the act has been performed.  

(c)  Provides that for purposes of this section, payment of a claim occurs
when the surety company places the surety company's check or draft in the
United States mail properly addressed to the claimant or the claimant's
representative. 

Sec. 5.  RULES.  Authorizes the Commissioner of Insurance (commissioner) to
adopt rules enforcing this article in cases in which a surety company
violates this article as a general business practice. 

Sec. 6.  CONSTRUCTION. (a)  Requires this article to be construed to
encourage prompt payment of just claims made under construction payment
bonds of surety companies.  Provides that this article does not foreclose
any other remedy available to a claimant by law or contract. 

(b)  Prohibits this article from being construed to create a private cause
of action; be a precondition to judicially enforcing obligations under a
construction payment bond; diminish any other obligation of a surety
company that exists by law; or prohibit a surety company from asserting a
defense against a construction payment bond claim in a proceeding to
enforce a claim. 

Sec. 7.  MODIFICATION PROHIBITED.  Provides that any term contained in a
construction payment bond that is inconsistent with this article is void. 

SECTION 2.  Effective date: September 1, 2001.  Makes application of this
Act prospective.