By: Bernsen S.B. No. 1653 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to prohibition of disclosure of defense counsel's fee 1-3 statements by liability insurers; providing a civil penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle B, Title 2, Insurance Code, is amended 1-6 by adding Chapter 103 to read as follows: 1-7 CHAPTER 103. DISCLOSURE OF FEE STATEMENTS 1-8 Sec. 103.001. DEFINITION. In this chapter, "insurer" means 1-9 a partnership, corporation, association, or other group, however 1-10 organized, that issues any form of liability insurance, whether 1-11 primary insurance coverage, excess insurance coverage, or umbrella 1-12 insurance coverage. The term includes a Lloyd's plan, a reciprocal 1-13 or interinsurance exchange, a county mutual insurance company, or a 1-14 farm mutual insurance company. 1-15 Sec. 103.002. APPLICABILITY. This chapter applies only to 1-16 an insurer that issues a liability insurance policy: 1-17 (1) to or covering any resident of this state; 1-18 (2) covering liability incurred by an insured in this 1-19 state; or 1-20 (3) under which the insurer provides a defense to an 1-21 insured in a claim or action pending in this state. 1-22 Sec. 103.003. DISCLOSURE PROHIBITED; EXCEPTION. (a) Except 1-23 as provided by Subsection (c), an insurer may not disclose defense 1-24 counsel fee statements regarding services provided for an insured 1-25 to any person, other than the insured, who is not an employee of 2-1 the insurer. 2-2 (b) An insurer may not require defense counsel to disclose 2-3 the defense counsel's fee statements to any person who is not an 2-4 employee of the insurer. 2-5 (c) To the extent, if any, otherwise permitted by law, an 2-6 insurer may disclose defense counsel's fee statements to a person 2-7 who is not an employee of the insurer for the purpose of reviewing 2-8 the fee statements in connection with a lawsuit over payment of the 2-9 fees. Disclosure under this subsection does not, in itself, waive 2-10 any attorney-client privilege. 2-11 Sec. 103.004. CONTRACT PROVISIONS VOID; WAIVER PROHIBITED. 2-12 (a) A provision in a contract entered into between an insurer and 2-13 defense counsel or between an insurer and an insured that requires 2-14 or permits disclosure of the defense counsel's fee statements to a 2-15 person who is not an employee of the insurer is against public 2-16 policy and is void and unenforceable. 2-17 (b) A waiver by an insured of the requirements of Section 2-18 103.003(a) or (b) is against public policy and is void and 2-19 unenforceable. 2-20 Sec. 103.005. DAMAGES; INJUNCTIVE RELIEF. (a) An insured 2-21 may bring an action against an insurer to: 2-22 (1) recover any actual damages proximately suffered by 2-23 the insured because of a violation of Section 103.003(a) or (b); 2-24 and 2-25 (2) obtain injunctive relief to prevent the threatened 2-26 or continued violation of Section 103.003(a) or (b). 3-1 (b) A court shall award reasonable and necessary attorney's 3-2 fees to a person who recovers damages or obtains injunctive relief 3-3 under this section. 3-4 Sec. 103.006. CIVIL PENALTY. (a) An insurer who violates 3-5 Section 103.003(a) or (b) is liable for a civil penalty. A civil 3-6 penalty assessed under this section may not exceed: 3-7 (1) $5,000 for the first or second act of violation; 3-8 or 3-9 (2) $10,000 for the third and each subsequent act of 3-10 violation. 3-11 (b) At the commissioner's request, the attorney general 3-12 shall file and prosecute a civil action in a district court in 3-13 Travis County to recover a civil penalty under this section. 3-14 SECTION 2. This Act applies only to a disclosure that occurs 3-15 on or after the effective date of this Act. A disclosure that 3-16 occurred before that date is governed by the law as it existed 3-17 immediately before the effective date of this Act, and that law is 3-18 continued in effect for that purpose. 3-19 SECTION 3. This Act takes effect September 1, 2001.