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.