By Turner of Harris                                   H.B. No. 3424
         77R7076 PB-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to coercion as an unfair trade practice in the business of
 1-3     insurance.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 4, Article 21.21, Insurance Code, is
 1-6     amended to read as follows:
 1-7           Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR
 1-8     DECEPTIVE ACTS OR PRACTICES DEFINED. The following are hereby
 1-9     defined as unfair methods of competition and unfair and deceptive
1-10     acts or practices in the business of insurance:
1-11                 (1)  Misrepresentations and False Advertising of Policy
1-12     Contracts.  Making, issuing, circulating, or causing to be made,
1-13     issued or circulated, any estimate, illustration, circular or
1-14     statement misrepresenting the terms of any policy issued or to be
1-15     issued or the benefits or advantages promised thereby or the
1-16     dividends or share of the surplus to be received thereon, or making
1-17     any false or misleading statements as to the dividends or share of
1-18     surplus previously paid on similar policies, or making any
1-19     misleading representation or any misrepresentation as to the
1-20     financial condition of any insurer, or as to the legal reserve
1-21     system upon which any life insurer operates, or using any name or
1-22     title of any policy or class of policies misrepresenting the true
1-23     nature thereof, or making any misrepresentation to any policyholder
1-24     insured in any company for the purpose of inducing or tending to
 2-1     induce such policyholder to lapse, forfeit, or surrender his
 2-2     insurance;
 2-3                 (2)  False Information and Advertising Generally.
 2-4     Making, publishing, disseminating, circulating or placing before
 2-5     the public, or causing, directly or indirectly, to be made,
 2-6     published, disseminated, circulated, or placed before the public,
 2-7     in a newspaper, magazine or other publication, or in the form of a
 2-8     notice, circular, pamphlet, letter or poster, or over any radio or
 2-9     television station, or in any other way, an advertisement,
2-10     announcement or statement containing any assertion, representation
2-11     or statement with respect to the business of insurance or with
2-12     respect to any person in the conduct of his insurance business,
2-13     which is untrue, deceptive or misleading;
2-14                 (3)  Defamation.  Making, publishing, disseminating, or
2-15     circulating, directly or indirectly, or aiding, abetting or
2-16     encouraging the making, publishing, disseminating or circulating of
2-17     any oral or written statement or any pamphlet, circular, article or
2-18     literature which is false, or maliciously critical of or derogatory
2-19     to the financial condition of any insurer, and which is calculated
2-20     to injure any person engaged in the business of insurance;
2-21                 (4)  Boycott, Coercion and Intimidation.  Entering into
2-22     any agreement to commit, or by any concerted action committing, any
2-23     act of boycott, coercion or intimidation resulting in or tending to
2-24     result in unreasonable restraint of, or monopoly in, the business
2-25     of insurance; for purposes of this subdivision, "coercion" includes
2-26     an action or agreement by any entity subject to this code that
2-27     offers multiple health benefit plans or health products and that
 3-1     requires a health care provider, as a condition of participation in
 3-2     a specific health benefit plan or health product of the entity, to
 3-3     participate in any of the entity's other health benefit plans or
 3-4     health products;
 3-5                 (5)  False Financial Statements.  (a) Filing with any
 3-6     supervisory or other public official, or making, publishing,
 3-7     disseminating, circulating or delivering to any person, or placing
 3-8     before the public, or causing directly or indirectly, to be made,
 3-9     published, disseminated, circulated, delivered to any person, or
3-10     placed before the public, any false statement of financial
3-11     condition of an insurer with intent to deceive;
3-12                       (b)  Making any false entry in any book, report
3-13     or statement of any insurer with intent to deceive any agent or
3-14     examiner lawfully appointed to examine into its condition or into
3-15     any of its affairs, or any public official to whom such insurer is
3-16     required by law to report, or who has authority by law to examine
3-17     into its condition or into any of its affairs, or, with like
3-18     intent, wilfully omitting to make a true entry of any material fact
3-19     pertaining to the business of such insurer in any book, report or
3-20     statement of such insurer;
3-21                 (6)  Stock Operations and Advisory Board Contracts.
3-22     Issuing or delivering or permitting agents, officers or employees
3-23     to issue or deliver, company stock or other capital stock, or
3-24     benefit certificates or shares in any corporation, or securities or
3-25     any special or advisory board contracts or other contracts of any
3-26     kind promising returns and profits as an inducement to insurance.
3-27     Provided, however, that nothing in this subsection shall be
 4-1     construed as prohibiting the issuing or delivery of participating
 4-2     insurance policies otherwise authorized by law.
 4-3                 (7)  Unfair Discrimination.  [(a)] Making or permitting
 4-4     any unfair discrimination between individuals of the same class and
 4-5     equal expectation of life in the rates charged for any contract of
 4-6     life insurance or of life annuity or in the dividends or other
 4-7     benefits payable thereon, or in any other of the terms and
 4-8     conditions of such contract;
 4-9                 (8)  Rebates.  (a) Except as otherwise expressly
4-10     provided by law, knowingly permitting or offering to make or making
4-11     any contract of life insurance, life annuity or accident and health
4-12     insurance, or agreement as to such contract other than as plainly
4-13     expressed in the contract issued thereon, or paying or allowing, or
4-14     giving or offering to pay, allow, or give, directly or indirectly,
4-15     as inducement to such insurance, or annuity, any rebate of premiums
4-16     payable on the contract, or any special favor or advantage in the
4-17     dividends or other benefits thereon, or any valuable consideration
4-18     or inducement whatever not specified in the contract; or giving, or
4-19     selling, or purchasing or offering to give, sell, or purchase as
4-20     inducement to such insurance or annuity or in connection therewith,
4-21     any stocks, bonds, or other securities of any insurance company or
4-22     other corporation, association, or partnership, or any dividends or
4-23     profits accrued thereon, or anything of value whatsoever not
4-24     specified in the contract;
4-25                       (b)  Nothing in clause 7 or paragraph (a) of
4-26     clause 8 of this subsection shall be construed as including within
4-27     the definition of discrimination or rebates any of the following
 5-1     practices:
 5-2                             (i)  in the case of any contract of life
 5-3     insurance or life annuity, paying bonuses to policyholders or
 5-4     otherwise abating their premiums in whole or in part out of surplus
 5-5     accumulated from non-participating insurance, provided that any
 5-6     such bonuses or abatement of premiums shall be fair and equitable
 5-7     to policyholders and for the best interests of the company and its
 5-8     policyholders;
 5-9                             (ii)  in the case of life insurance
5-10     policies issued on the industrial debit plan, making allowance to
5-11     policyholders who have continuously for a specified period made
5-12     premium payments directly to an office of the insurer in an amount
5-13     which fairly represents the saving in collection expenses;
5-14                             (iii)  readjustment of the rate of premium
5-15     for a group insurance policy based on the loss or expense
5-16     experience thereunder, at the end of the first or any subsequent
5-17     policy year of insurance thereunder, which may be made retroactive
5-18     only for such policy year.
5-19                 (9)  Deceptive Name, Word, Symbol, Device, or Slogan.
5-20     Using, displaying, publishing, circulating, distributing, or
5-21     causing to be used, displayed, published, circulated, or
5-22     distributed in any letter, pamphlet, circular, contract, policy,
5-23     evidence of coverage, article, poster, or other document,
5-24     literature, or public media of:
5-25                       (a)  a name as the corporate or business name of
5-26     a person or entity engaged in an insurance or insurance related
5-27     business in this state that is the same as, or deceptively similar
 6-1     to, the name adopted and used by an insurance entity, health
 6-2     maintenance organization, third party administrator, or group
 6-3     hospital service company authorized to do business under the laws
 6-4     of this state; or
 6-5                       (b)  a word, symbol, device, slogan, or any
 6-6     combination of these items, whether registered or not registered,
 6-7     that is the same as or deceptively similar to one adopted and used
 6-8     by an insurance entity, health maintenance organization, third
 6-9     party administrator, or group hospital service company to
6-10     distinguish such entities, products, or service from other
6-11     entities, and includes the title, designation, character names, and
6-12     distinctive features of broadcast or other advertising.
6-13                 Where two persons or entities are using a name, word,
6-14     symbol, device, slogan, or any combination of these items that are
6-15     the same or deceptively similar and are likely to cause confusion
6-16     or a mistake, the user who can demonstrate the first continuous
6-17     actual use of such name, word, symbol, device, slogan, or
6-18     combination of these items shall not have committed an unfair
6-19     method of competition or deceptive act or practice.
6-20                 (10)  Unfair Settlement Practices.  (a) Engaging in any
6-21     of the following unfair settlement practices with respect to a
6-22     claim by an insured or beneficiary:
6-23                             (i)  misrepresenting to a claimant a
6-24     material fact or policy provision relating to coverage at issue;
6-25                             (ii)  failing to attempt in good faith to
6-26     effectuate a prompt, fair, and equitable settlement of a claim with
6-27     respect to which the insurer's liability has become reasonably
 7-1     clear;
 7-2                             (iii)  failing to attempt, in good faith,
 7-3     to effectuate a prompt, fair, and equitable settlement under one
 7-4     portion of a policy of a claim with respect to which the insurer's
 7-5     liability has become reasonably clear in order to influence the
 7-6     claimant to settle an additional claim under another portion of the
 7-7     coverage, provided that this prohibition does not apply if payment
 7-8     under one portion of the coverage constitutes evidence of liability
 7-9     under another portion of the policy;
7-10                             (iv)  failing to provide promptly to a
7-11     policyholder a reasonable explanation of the basis in the policy,
7-12     in relation to the facts or applicable law, for the insurer's
7-13     denial of a claim or for the offer of a compromise settlement of a
7-14     claim;
7-15                             (v)  failing within a reasonable time to:
7-16                                   (A)  affirm or deny coverage of a
7-17     claim to a policyholder; or
7-18                                   (B)  submit a reservation of rights
7-19     to a policyholder;
7-20                             (vi)  refusing, failing, or unreasonably
7-21     delaying an offer of settlement under applicable first-party
7-22     coverage on the basis that other coverage may be available or that
7-23     third parties are responsible for the damages suffered, except as
7-24     may be specifically provided in the policy;
7-25                             (vii)  undertaking to enforce a full and
7-26     final release of a claim from a policyholder when only a partial
7-27     payment has been made, provided that this prohibition does not
 8-1     apply to a compromise settlement of a doubtful or disputed claim;
 8-2                             (viii)  refusing to pay a claim without
 8-3     conducting a reasonable investigation with respect to the claim;
 8-4                             (ix)  with respect to a Texas personal auto
 8-5     policy, delaying or refusing settlement of a claim solely because
 8-6     there is other insurance of a different type available to satisfy
 8-7     all or any part of the loss forming the basis of that claim; or
 8-8                             (x)  requiring a claimant, as a condition
 8-9     of settling a claim, to produce the claimant's federal income tax
8-10     returns for examination or investigation by the person unless:
8-11                                   (A)  the claimant is ordered to
8-12     produce those tax returns by a court;
8-13                                   (B)  the claim involves a fire loss;
8-14     or
8-15                                   (C)  the claim involves lost profits
8-16     or income.
8-17                       (b)  Paragraph (a) of this clause does not
8-18     provide a cause of action to a third party asserting one or more
8-19     claims against an insured covered under a liability insurance
8-20     policy.
8-21                 (11)  Misrepresentation of Insurance Policy.
8-22     Misrepresenting an insurance policy by:
8-23                       (a)  making an untrue statement of material fact;
8-24                       (b)  failing to state a material fact that is
8-25     necessary to make other statements made not misleading, considering
8-26     the circumstances under which the statements were made;
8-27                       (c)  making a statement in such manner as to
 9-1     mislead a reasonably prudent person to a false conclusion of a
 9-2     material fact;
 9-3                       (d)  making a material misstatement of law; or
 9-4                       (e)  failing to disclose any matter required by
 9-5     law to be disclosed, including a failure to make disclosure in
 9-6     accordance with another provision of this code.
 9-7           SECTION 2. Section 4, Article 21.21, Insurance Code, as
 9-8     amended by this Act, applies only to an insurance policy, contract,
 9-9     or evidence of coverage delivered, issued for delivery, or renewed
9-10     on or after January 1, 2002.  A policy, contract, or evidence of
9-11     coverage delivered, issued for delivery, or renewed before January
9-12     1, 2002, is governed by the law as it existed immediately before
9-13     the effective date of this Act, and that law is continued in effect
9-14     for that purpose.
9-15           SECTION 3. This Act takes effect September 1, 2001.