By Burnam                                             H.B. No. 2893
         77R4443 MXM-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to certain unfair practices by motor vehicle insurers;
 1-3     providing penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5                  ARTICLE 1.  UNFAIR UNDERWRITING PRACTICES
 1-6           SECTION 1.01.  Section 4, Article 21.21, Insurance Code, is
 1-7     amended to read as follows:
 1-8           Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR
 1-9     DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby
1-10     defined as unfair methods of competition and unfair and deceptive
1-11     acts or practices in the business of insurance:
1-12                 (1)  Misrepresentations and False Advertising of Policy
1-13     Contracts.  Making, issuing, circulating, or causing to be made,
1-14     issued or circulated, any estimate, illustration, circular or
1-15     statement misrepresenting the terms of any policy issued or to be
1-16     issued or the benefits or advantages promised thereby or the
1-17     dividends or share of the surplus to be received thereon, or making
1-18     any false or misleading statements as to the dividends or share of
1-19     surplus previously paid on similar policies, or making any
1-20     misleading representation or any misrepresentation as to the
1-21     financial condition of any insurer, or as to the legal reserve
1-22     system upon which any life insurer operates, or using any name or
1-23     title of any policy or class of policies misrepresenting the true
1-24     nature thereof, or making any misrepresentation to any policyholder
 2-1     insured in any company for the purpose of inducing or tending to
 2-2     induce such policyholder to lapse, forfeit, or surrender his
 2-3     insurance;
 2-4                 (2)  False Information and Advertising Generally.
 2-5     Making, publishing, disseminating, circulating or placing before
 2-6     the public, or causing, directly or indirectly, to be made,
 2-7     published, disseminated, circulated, or placed before the public,
 2-8     in a newspaper, magazine or other publication, or in the form of a
 2-9     notice, circular, pamphlet, letter or poster, or over any radio or
2-10     television station, or in any other way, an advertisement,
2-11     announcement or statement containing any assertion, representation
2-12     or statement with respect to the business of insurance or with
2-13     respect to any person in the conduct of his insurance business,
2-14     which is untrue, deceptive or misleading;
2-15                 (3)  Defamation.  Making, publishing, disseminating, or
2-16     circulating, directly or indirectly, or aiding, abetting or
2-17     encouraging the making, publishing, disseminating or circulating of
2-18     any oral or written statement or any pamphlet, circular, article or
2-19     literature which is false, or maliciously critical of or derogatory
2-20     to the financial condition of any insurer, and which is calculated
2-21     to injure any person engaged in the business of insurance;
2-22                 (4)  Boycott, Coercion and Intimidation.  Entering into
2-23     any agreement to commit, or by any concerted action committing, any
2-24     act of boycott, coercion or intimidation resulting in or tending to
2-25     result in unreasonable restraint of, or monopoly in, the business
2-26     of insurance;
2-27                 (5)  False Financial Statements. (a)  Filing with any
 3-1     supervisory or other public official, or making, publishing,
 3-2     disseminating, circulating or delivering to any person, or placing
 3-3     before the public, or causing directly or indirectly, to be made,
 3-4     published, disseminated, circulated, delivered to any person, or
 3-5     placed before the public, any false statement of financial
 3-6     condition of an insurer with intent to deceive;
 3-7                       (b)  Making any false entry in any book, report
 3-8     or statement of any insurer with intent to deceive any agent or
 3-9     examiner lawfully appointed to examine into its condition or into
3-10     any of its affairs, or any public official to whom such insurer is
3-11     required by law to report, or who has authority by law to examine
3-12     into its condition or into any of its affairs, or, with like
3-13     intent, wilfully omitting to make a true entry of any material fact
3-14     pertaining to the business of such insurer in any book, report or
3-15     statement of such insurer;
3-16                 (6)  Stock Operations and Advisory Board Contracts.
3-17     Issuing or delivering or permitting agents, officers or employees
3-18     to issue or deliver, company stock or other capital stock, or
3-19     benefit certificates or shares in any corporation, or securities or
3-20     any special or advisory board contracts or other contracts of any
3-21     kind promising returns and profits as an inducement to insurance.
3-22     Provided, however, that nothing in this subsection shall be
3-23     construed as prohibiting the issuing or delivery of participating
3-24     insurance policies otherwise authorized by law.
3-25                 (7)  Unfair Discrimination. (a)  Making or permitting
3-26     any unfair discrimination between individuals of the same class and
3-27     equal expectation of life in the rates charged for any contract of
 4-1     life insurance or of life annuity or in the dividends or other
 4-2     benefits payable thereon, or in any other of the terms and
 4-3     conditions of such contract;
 4-4                 (8)  Rebates. (a)  Except as otherwise expressly
 4-5     provided by law, knowingly permitting or offering to make or making
 4-6     any contract of life insurance, life annuity or accident and health
 4-7     insurance, or agreement as to such contract other than as plainly
 4-8     expressed in the contract issued thereon, or paying or allowing, or
 4-9     giving or offering to pay, allow, or give, directly or indirectly,
4-10     as inducement to such insurance, or annuity, any rebate of premiums
4-11     payable on the contract, or any special favor or advantage in the
4-12     dividends or other benefits thereon, or any valuable consideration
4-13     or inducement whatever not specified in the contract; or giving, or
4-14     selling, or purchasing or offering to give, sell, or purchase as
4-15     inducement to such insurance or annuity or in connection therewith,
4-16     any stocks, bonds, or other securities of any insurance company or
4-17     other corporation, association, or partnership, or any dividends or
4-18     profits accrued thereon, or anything of value whatsoever not
4-19     specified in the contract;
4-20                       (b)  Nothing in clause 7 or paragraph (a)  of
4-21     clause 8 of this subsection shall be construed as including within
4-22     the definition of discrimination or rebates any of the following
4-23     practices:
4-24                             (i)  in the case of any contract of life
4-25     insurance or life annuity, paying bonuses to policyholders or
4-26     otherwise abating their premiums in whole or in part out of surplus
4-27     accumulated from non-participating insurance, provided that any
 5-1     such bonuses or abatement of premiums shall be fair and equitable
 5-2     to policyholders and for the best interests of the company and its
 5-3     policyholders;
 5-4                             (ii)  in the case of life insurance
 5-5     policies issued on the industrial debit plan, making allowance to
 5-6     policyholders who have continuously for a specified period made
 5-7     premium payments directly to an office of the insurer in an amount
 5-8     which fairly represents the saving in collection expenses;
 5-9                             (iii)  readjustment of the rate of premium
5-10     for a group insurance policy based on the loss or expense
5-11     experience thereunder, at the end of the first or any subsequent
5-12     policy year of insurance thereunder, which may be made retroactive
5-13     only for such policy year.
5-14                 (9)  Deceptive Name, Word, Symbol, Device, or Slogan.
5-15     Using, displaying, publishing, circulating, distributing, or
5-16     causing to be used, displayed, published, circulated, or
5-17     distributed in any letter, pamphlet, circular, contract, policy,
5-18     evidence of coverage, article, poster, or other document,
5-19     literature, or public media of:
5-20                       (a)  a name as the corporate or business name of
5-21     a person or entity engaged in an insurance or insurance related
5-22     business in this state that is the same as, or deceptively similar
5-23     to, the name adopted and used by an insurance entity, health
5-24     maintenance organization, third party administrator, or group
5-25     hospital service company authorized to do business under the laws
5-26     of this state; or
5-27                       (b)  a word, symbol, device, slogan, or any
 6-1     combination of these items, whether registered or not registered,
 6-2     that is the same as or deceptively similar to one adopted and used
 6-3     by an insurance entity, health maintenance organization, third
 6-4     party administrator, or group hospital service company to
 6-5     distinguish such entities, products, or service from other
 6-6     entities, and includes the title, designation, character names, and
 6-7     distinctive features of broadcast or other advertising.
 6-8           Where two persons or entities are using a name, word, symbol,
 6-9     device, slogan, or any combination of these items that are the same
6-10     or deceptively similar and are likely to cause confusion or a
6-11     mistake, the user who can demonstrate the first continuous actual
6-12     use of such name, word, symbol, device, slogan, or combination of
6-13     these items shall not have committed an unfair method of
6-14     competition or deceptive act or practice.
6-15                 (10)  Unfair Settlement Practices. (a)  Engaging in any
6-16     of the following unfair settlement practices with respect to a
6-17     claim by an insured or beneficiary:
6-18                             (i)  misrepresenting to a claimant a
6-19     material fact or policy provision relating to coverage at issue;
6-20                             (ii)  failing to attempt in good faith to
6-21     effectuate a prompt, fair, and equitable settlement of a claim with
6-22     respect to which the insurer's liability has become reasonably
6-23     clear;
6-24                             (iii)  failing to attempt, in good faith,
6-25     to effectuate a prompt, fair, and equitable settlement under one
6-26     portion of a policy of a claim with respect to which the insurer's
6-27     liability has become reasonably clear in order to influence the
 7-1     claimant to settle an additional claim under another portion of the
 7-2     coverage, provided that this prohibition does not apply if payment
 7-3     under one portion of the coverage constitutes evidence of liability
 7-4     under another portion of the policy;
 7-5                             (iv)  failing to provide promptly to a
 7-6     policyholder a reasonable explanation of the basis in the policy,
 7-7     in relation to the facts or applicable law, for the insurer's
 7-8     denial of a claim or for the offer of a compromise settlement of a
 7-9     claim;
7-10                             (v)  failing within a reasonable time to:
7-11                                   (A)  affirm or deny coverage of a
7-12     claim to a policyholder; or
7-13                                   (B)  submit a reservation of rights
7-14     to a policyholder;
7-15                             (vi)  refusing, failing, or unreasonably
7-16     delaying an offer of settlement under applicable first-party
7-17     coverage on the basis that other coverage may be available or that
7-18     third parties are responsible for the damages suffered, except as
7-19     may be specifically provided in the policy;
7-20                             (vii)  undertaking to enforce a full and
7-21     final release of a claim from a policyholder when only a partial
7-22     payment has been made, provided that this prohibition does not
7-23     apply to a compromise settlement of a doubtful or disputed claim;
7-24                             (viii) refusing to pay a claim without
7-25     conducting a reasonable investigation with respect to the claim;
7-26                             (ix)  with respect to a Texas personal auto
7-27     policy, delaying or refusing settlement of a claim solely because
 8-1     there is other insurance of a different type available to satisfy
 8-2     all or any part of the loss forming the basis of that claim; or
 8-3                             (x)  requiring a claimant, as a condition
 8-4     of settling a claim, to produce the claimant's federal income tax
 8-5     returns for examination or investigation by the person unless:
 8-6                                   (A)  the claimant is ordered to
 8-7     produce those tax returns by a court;
 8-8                                   (B)  the claim involves a fire loss;
 8-9     or
8-10                                   (C)  the claim involves lost profits
8-11     or income.
8-12                       (b)  Paragraph (a)  of this clause does not
8-13     provide a cause of action to a third party asserting one or more
8-14     claims against an insured covered under a liability insurance
8-15     policy.
8-16                 (11)  Misrepresentation of Insurance Policy.
8-17     Misrepresenting an insurance policy by:
8-18                       (a)  making an untrue statement of material fact;
8-19                       (b)  failing to state a material fact that is
8-20     necessary to make other statements made not misleading, considering
8-21     the circumstances under which the statements were made;
8-22                       (c)  making a statement in such manner as to
8-23     mislead a reasonably prudent person to a false conclusion of a
8-24     material fact;
8-25                       (d)  making a material misstatement of law; or
8-26                       (e)  failing to disclose any matter required by
8-27     law to be disclosed, including a failure to make disclosure in
 9-1     accordance with another provision of this code.
 9-2                 (12)  Other Unfair Practices.  Violating this code
 9-3     through:
 9-4                       (a)  the improper use of a credit rating or
 9-5     credit history in underwriting an insurance policy, as provided by
 9-6     Article 21.21-11, Insurance Code; or
 9-7                       (b)  the improper issuance, renewal, or
 9-8     cancellation of an insurance policy for a good driver, as provided
 9-9     by Section 4A, Article 21.49-2B.
9-10     ARTICLE 2.  RESTRICTIONS ON USE OF CERTAIN UNDERWRITING GUIDELINES 
9-11           SECTION 2.01.  Subchapter B, Chapter 21, Insurance Code, is
9-12     amended by adding Article 21.21-11 to read as follows:
9-13           Art. 21.21-11.  PROHIBITION ON USE IN MOTOR VEHICLE INSURANCE
9-14     OF UNDERWRITING GUIDELINES BASED ON CREDIT HISTORY OR CREDIT RATING
9-15           Sec. 1.  DEFINITIONS.  In this article:
9-16                 (1)  "Insurer" means an insurer authorized to write
9-17     motor vehicle insurance in this state, including:
9-18                       (A)  a county mutual insurance company;
9-19                       (B)  a Lloyd's plan insurer; and
9-20                       (C)  a reciprocal or interinsurance exchange.
9-21                 (2)  "Underwriting guideline" means a rule, standard,
9-22     marketing decision, or practice that is used by an insurer or an
9-23     agent of an insurer to examine, bind, accept, reject, cancel, or
9-24     limit insurance coverage to groups of consumers of insurance.
9-25           Sec. 2.  APPLICATION.  This article applies only to a
9-26     personal automobile insurance policy.
9-27           Sec. 3.  PROHIBITION; EXEMPTION.  (a)  An insurer may not use
 10-1    an underwriting guideline that is based in whole or in part on the
 10-2    credit history or credit rating of an insured, an applicant for
 10-3    insurance coverage, or any person other than the named insured or
 10-4    the applicant who would be insured under the policy.
 10-5          (b)  This section does not apply to the use of a credit
 10-6    history or credit rating by an insurer solely to determine whether
 10-7    the insurer will offer an installment payment plan for the payment
 10-8    of premiums to an insured or applicant for insurance.
 10-9          Sec. 4.  PENALTY.  An insurer who violates this article
10-10    commits an unfair practice in violation of Article 21.21 of this
10-11    code and is subject to the penalties imposed under that article.
10-12              ARTICLE 3.  INSURANCE COVERAGE FOR GOOD DRIVERS
10-13          SECTION 3.01.  The heading to Article 21.49-2B, Insurance
10-14    Code, is amended to read as follows:
10-15          Art. 21.49-2B.  AVAILABILITY, CANCELLATION, AND NONRENEWAL OF
10-16    CERTAIN PROPERTY AND CASUALTY POLICIES
10-17          SECTION 3.02.  Article 21.49-2B, Insurance Code, is amended
10-18    by adding Section 4A to read as follows:
10-19          Sec. 4A.  COVERAGE FOR GOOD DRIVERS.  (a)  In this section:
10-20                (1)  "Good driver" means an individual who:
10-21                      (A)  has been licensed for at least three years
10-22    to drive the type of motor vehicle to be insured;
10-23                      (B)  during the previous three years, has not:
10-24                            (i)  been substantially at fault in a motor
10-25    vehicle accident that resulted in bodily injury, death, or property
10-26    damage;
10-27                            (ii)  been convicted of a violation of a
 11-1    traffic safety regulation  that involved a moving vehicle;
 11-2                            (iii)  had more than one dismissal of a
 11-3    charge under Subchapter B, Chapter 543, Transportation Code; and
 11-4                            (iv)  been convicted of an offense under
 11-5    Section 49.04, Penal Code, or Section 106.041, Alcoholic Beverage
 11-6    Code; and
 11-7                      (C)  has never made a fraudulent insurance claim.
 11-8                (2)  "Traffic safety regulation" means a law or
 11-9    ordinance of this state or a political subdivision of this state
11-10    relating to the operation of a motor vehicle other than a
11-11    regulation relating to the conduct of a pedestrian or the parking
11-12    of a motor vehicle.
11-13          (b)  Except as otherwise provided by this article, a motor
11-14    vehicle insurer may not cancel,  nonrenew, or  refuse to offer a
11-15    policy of motor vehicle insurance to a good driver.
11-16          (c)  At least 30 days before the date a motor vehicle insurer
11-17    who does not offer a policy regulated by Article 5.101 of this code
11-18    is required to renew a policy under which a good driver is an
11-19    insured, or on application for a policy by an individual who
11-20    qualifies as a good driver, the motor vehicle insurer shall provide
11-21    to the named insured or applicant a notice, in the form prescribed
11-22    by the commissioner, that includes:
11-23                (1)  an explanation of the different types of motor
11-24    vehicle insurance companies in this state and the manner in which
11-25    the rates for the policies of those insurance companies are subject
11-26    to regulation under this code;
11-27                (2)  a list of the affiliates of that insurer who offer
 12-1    a policy regulated under Article 5.101 of this code; and
 12-2                (3)  other information the commissioner by rule
 12-3    requires.
 12-4          (d)  A violation of this section is an unfair and deceptive
 12-5    practice in  the business of insurance under Article 21.21 of this
 12-6    code.   Compliance with this section does not create an exemption
 12-7    from Article 21.21-6 of this code, as added by Chapter 415, Acts of
 12-8    the 74th Legislature, Regular Session, 1995, or other requirements.
 12-9                  ARTICLE 4.  TRANSITION; EFFECTIVE DATE
12-10          SECTION 4.01.  Article 21.21-11, Insurance Code, as added by
12-11    this Act, and Articles 21.21 and 21.49-2B, Insurance Code, as
12-12    amended by this Act, apply only to an insurance policy delivered,
12-13    issued for delivery, or renewed on or after January 1, 2002.  A
12-14    policy delivered, issued for delivery, or renewed before January 1,
12-15    2002, is governed by the law as it existed immediately before the
12-16    effective date of this Act, and that law is continued in effect for
12-17    that  purpose.
12-18          SECTION 4.02.  This Act takes effect September 1, 2001.