SRC-JEC, MSY S.B. 1192 78(R)BILL ANALYSIS


Senate Research CenterS.B. 1192
By: Carona
State Affairs
6/23/2003
Enrolled


DIGEST AND PURPOSE 

Under current law, the Texas Property and Casualty Insurance Guaranty
Association (association) exists as a non-profit, unincorporated
association of all Texas-licensed property and casualty insurers to
protect Texas insurance policyholders and claimants when an insurance
company fails.  S.B. 1192 makes a number of amendments to the Insurance
Code that affect the operation of the association. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sections 5(8) and (9), Article 21.28-C, Insurance Code,
as follows: 

(8)  Amends the definition of "covered claim" to provide that a
corporation or other entity that is not an individual is considered to be
a resident of the state in which the entity's principal place of business
is located.  Provides that "covered claim" does not include any amount
sought as a return of premium under a retrospective rating plan or any
amount due any self-insurer, in addition to other entities.  Provides that
the insured of an impaired insurer is not liable, and the reinsurer,
self-insurer, insurance pool, or underwriting association is not entitled
to sue or continue a suit against that insured, for any subrogation
recovery, reinsurance recovery, contribution, or indemnity to a certain
extent.  Deletes text regarding an assertion by a reinsurer, insurer,
insurance pool, or underwriting association.  Provides that,
notwithstanding any other provision of this Act, the  Texas Property and
Casualty Insurance Guaranty Association's (association) liability for
shareholder derivative actions or other claims for economic loss incurred
by a claimant in the claimant's capacity as a shareholder under an
insurance policy placed in force on or after January 1, 1002, is limited
to $300,000 for each policy, inclusive of defense costs, regardless of the
number of claimants under each policy. Makes conforming changes. 

(9)  Amends the definition of "impaired insurer" to include a member
insurer that is placed in temporary or permanent liquidation, in addition
to a member insurer that is placed in temporary or permanent receivership. 

SECTION 2.  Amends Section 8(a) and (d), Article 21.28-C, Insurance Code,
as follows: 

(a)  Provides that the association's liability is limited to the payment
of covered claims. Provides that the association has no liability for any
other claim or damages, including claims for recovery of attorney's fees,
prejudgment or postjudgment interest, or penalties, extracontractual
damages, multiple damages, or exemplary damages, or any other amount
sought by or on behalf of any insured or claimant or any other provider of
goods or services retained by any insured or claimant in connection with
the assertion or prosecution of any claims, without regard to whether the
claims are covered, against the insured of an impaired  insurer, the
impaired insurer, the guaranty association, receiver, special deputy
receiver, commissioner, or liquidator.  Provides that this subsection does
not exclude the payment of workers' compensation benefits or other
liabilities or penalties authorized by Title 5 (Workers' Compensation),
Labor Code, arising from the association's processing and payment of
workers' compensation benefits after the designation of impairment. 

(d)  Provides that any judgment taken before the designation of impairment
in which an insured under a liability policy or the insurer failed to
exhaust all appeals is not binding on the association, and may not be
considered as evidence of liability or of damages in connection with any
claim brought against the association or any other party under this Act.
Provides that, notwithstanding any other provision of this Act, a covered
claim shall not include any claim filed with the guaranty association on a
date that is later than, rather than after the later of the final date for
filing claims against the liquidator or receiver of an insolvent insurer
or, eighteen months after the date of the order of liquidation, except
that a claim for workers' compensation benefits is governed by Title 5,
Labor Code, and the applicable rules of the Texas Workers' Compensation
Commission. 

SECTION 3.  Amends Section 11(b), Article 21.28-C, Insurance Code, as
follows: 

(b)  Entitles the association to recover from the following persons the
amount of any costs of defense, in addition to any covered claim, paid on
behalf of that person under this Act: 

(1)  any insured, other than a certain exempt insured, whose net worth on
a certain date exceeds $50 million, provided that an insured's net worth
on that date is considered to include the aggregate net worth of the
insured and all the insured's parent, subsidiary, and affiliated companies
as computed on a consolidated basis, and whose obligations under a certain
liability policy are satisfied in whole or in part by payments made under
this Act. 

SECTION 4.  Amends Section 21.28-C, Insurance Code, by adding Section 11A,
as follows: 

Sec.  11A.  NET WORTH EXCLUSION.  (a)  Provides that the association is
not liable to pay a first-party claim of an insured whose net worth on a
certain date exceeds $50 million. 

(b)  Provides that the net worth of an insured for the purposes of this
section includes the aggregate net worth of the insured and all of the
insured's parent, subsidiary, and affiliated companies computed on a
consolidated basis. 

(c)  Provides that this section does not exclude the payment of a covered
claim for workers' compensation benefits otherwise payable under this Act. 

SECTION 5.  Amends Section 12, Article 21.28-C, Insurance Code, as follows:

(a)  Requires any person who has a claim under an insurance policy,
without regard to whether the policy is issued by a member insurer, other
than a policy of an impaired insurer, that arises from the same facts,
injury, or loss that gave rise to a claim against an impaired insurer or
its insured, to first exhaust certain rights.  Provides that an amount
payable as a covered claim under this Act is reduced by the full
applicable limits of the other insurance policy and requires the
association to receive a full credit in the amount of the full applicable
limits, except that a covered claim for workers' compensation benefits is
subject only to reduction by a third-party liability recovery under
Section 417.002, Labor Code.  Deletes language requiring the association
to have a credit or setoff against any amount of benefits which would
otherwise be payable by the association to the claimant under this Act, in
a certain amount.  Prohibits the association's liability from exceeding
$300,000, rather than $100,000, in a certain circumstance.  Provides that
the liability of the person insured by the impaired insurer's policy  for
the claim is reduced in the same amount as the association's obligation is
reduced by the application of this subsection. 

(a-1)  Provides that, subject to Section 5(8) of this Act and Title 5,
Labor Code, a claim for workers' compensation benefits, rather than
claimant's recovery, under this Act may not result in a recovery to the
claimant that is less than that which would have resulted but for the
insolvency of the impaired insurer. 

(b)  Prohibits the association's liability from exceeding $300,000, rather
than $100,000, in a certain circumstance.  

(b-1)  Provides that, subject to Section 5(8) of this Act and Title 5,
Labor Code, a claim for workers' compensation benefits, rather than
claimant's recovery, under this Act may not result in a recovery to the
claimant that is less than that which would have resulted but for the
insolvency of the impaired insurer. 

SECTION 6.  Amends Section 17, Article 21.28-C, Insurance Code, by
creating Subsections (a) and (b) from existing text and amending the new
Subsection (a) as follows: 

(a)  Requires all proceedings in which an impaired insurer is a party or
is obligated to defend a party in any court in this state, except for
certain proceedings, to be stayed as to all parties and for all purposes
for a certain amount of time, to permit proper defense by the association
of all pending causes of action. Authorize the court in which the
delinquency proceeding is pending to issue injunctions or other similar
orders to enforce the stay.  Authorizes the commissioner, if the impaired
insurer is not domiciled in this state, to bring an ancillary delinquency
proceeding under Section 13 (Ancillary delinquency proceedings), Article
21.28, of this code for the limited purpose of determining the
application, enforcement, and extension of the stay. 

SECTION 7.  Amends Section 25(b), Article 21.28-C, Insurance Code, to
provide that this section does not apply to a conflict between this Act
and Subtitle A (Texas Workers' Compensation Act), Title 5, Labor Code,
except that this Act controls with respect to subrogation rights of an
insurance carrier under Chapter 417 (Third-party Liability), Labor Code,
against an insured of an impaired insurer or the association.  Makes
conforming changes. 

SECTION 8.  Makes application of this Act prospective.

SECTION 9.  Effective date:  upon passage or September 1, 2003.