2003S0021-3 11/19/02


By:  Smithee                                                      H.B. No. 748


A BILL TO BE ENTITLED
AN ACT
relating to automobile and residential property insurance rate regulation. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 5, Insurance Code, is amended by adding Subchapter P to read as follows:
SUBCHAPTER P. PERSONAL AUTOMOBILE AND RESIDENTIAL PROPERTY
INSURANCE RATES AND FORMS
Art. 5.141. RATES FOR PERSONAL AUTOMOBILE AND RESIDENTIAL PROPERTY INSURANCE COVERAGE Sec. 1. SCOPE; PURPOSE. (a) This article governs the regulation of rates for personal automobile insurance and residential property insurance. (b) The purposes of this article are to: (1) promote the public welfare by regulating personal automobile and residential property insurance rates to prohibit excessive, inadequate, or unfairly discriminatory rates; (2) promote the availability of personal automobile and residential property insurance; (3) promote price competition among insurers to provide rates and premiums that are responsive to competitive market conditions; and (4) prohibit price-fixing agreements and other anticompetitive behavior by insurers. (c) Notwithstanding Subsection (a) of this section, this article does not apply to premium rates for motor vehicle insurance computed using a mile-based rating plan under Article 5.01-4 of this code. Sec. 2. DEFINITIONS. In this article: (1) "Classification" means a generic application to similar risks within the same line. (2) "Disallowed expenses" means: (A) administrative expenses, not including acquisition expenses, not including acquisition, loss control, and safety engineering expenses, that exceed 110 percent of the industry median for those expenses; (B) lobbying expenses; (C) advertising expenses, except the following: (i) advertising that is directly related to the services or products provided by the insurer; (ii) advertising designed and directed at loss prevention; or (iii) advertising for the promotion of organizations exempt from federal taxation under Section 501(c)(3), Internal Revenue Code of 1986, and its subsequent amendments; (D) amounts paid by an insurer as damages in a suit against the insurer for bad faith or as fines or penalties for violation of law; (E) contributions to organizations engaged in legislative advocacy; (F) fees and penalties imposed on the insurer for civil or criminal violations of law; (G) contributions to social, religious, political, or fraternal organizations; (H) fees and assessments paid to advisory organizations; and (I) any unreasonably incurred expenses, as determined by the commissioner after notice and hearing. (3) "Filer" means an insurer that files rates, supplementary rating information, supporting information, rating manuals, or any other information required to be filed under this article. (4) "Insurer" means an insurance company, reciprocal or interinsurance exchange, mutual, capital stock company, fraternal benefit society, local mutual aid association, county mutual insurance company, association, Lloyd's plan company, or other entity writing personal automobile insurance or residential property insurance in the state. The term includes an affiliate, as described by Section 823.003(a) of this code. The term does not include the Texas Windstorm Insurance Association created and operated under Article 21.49 of this code. (5) "Line" means a type of insurance subject to this article. (6) "Personal automobile insurance" means an automobile insurance policy providing insurance coverages for the ownership, maintenance, or use of private passenger, utility, and miscellaneous type motor vehicles and trailers including mobile homes and recreational trailers, and not primarily used for the delivery of goods, materials, or services, unless such use is in farm or ranch operations, and provided that such vehicles are owned or leased by an individual or individuals. (7) "Rate" or "rating plan" means the charge for a particular line for each unit of exposure. (8) "Residential property insurance" means insurance against loss to real or tangible personal property at a fixed location provided in a homeowners policy, a tenant policy, a condominium owners policy, or a residential fire and allied lines policy. (9) "Supplementary rating information" means any manual, rating schedule, plan of rules, rating rules, classification systems, territory codes and descriptions, rating plans, and other similar information used by the insurer to determine the applicable premium for an insured. The term includes factors and relativities, such as increased limits factors, classification relativities, deductible relativities, premium discount, and other similar factors and rating plans such as experience, schedule, and retrospective rating. (10) "Supporting information" means: (A) the experience and judgment of the filer and the experience or information of other insurers relied on by the filer; (B) the interpretation of any other information relied on by the filer; (C) descriptions of methods used in making the rates; and (D) any other information required by the department to be filed. Sec. 3. RATE STANDARDS. (a) Rates under this article shall be set in accordance with the provisions of this section. (b) In setting rates, an insurer shall consider: (1) past and prospective loss experience inside the state, and outside the state if the state data are not credible; (2) the peculiar hazards and experiences of individual risks, past and prospective, inside and outside the state; (3) the insurer's own historical premium, exposure, loss, and expense experience to the extent that it is actuarially credible; (4) catastrophe hazards within the state; (5) operating expenses excluding disallowed expenses; (6) investment income; (7) a reasonable margin for profit; and (8) any other relevant factors inside and outside the state. (c) The insurer may group risks by classifications for the establishment of rates and minimum premiums and may modify classification rates to produce rates for individual risks in accordance with rating plans that establish standards for measuring variations in those risks on the basis of any factor listed in Subsection (b) of this section. (d) Rates may not be excessive, inadequate, unreasonable, or unfairly discriminatory for the risks to which they apply. (e) In setting rates applicable solely to policyholders in the state, an insurer shall use its own historical premium and loss data, as well as its own data for expenses and for profit and contingency factors. The commissioner may require an audit of the insurer's historical premium and loss data. The insurer may separately supplement its own historical premium and loss data with historical premium and loss data as necessary. The commissioner may by rule establish requirements for reporting historical premium and loss data under this subsection. Sec. 4. RATE FILINGS. (a) An insurer must file with the commissioner all rates, supplementary rating information, reasonable and pertinent supporting information for risks written in the state, and all applicable rating manuals. The insurer shall include in the filing any statistics or other information to support the rates to be used by the insurer as required by the commissioner by rule, including information necessary to evidence that the calculation of the rate does not include disallowed expenses. The insurer shall include in the filing policy fees, service fees, and other fees that are charged under Article 21.35A or Article 21.35B of this code. (b) Unless disapproved by the commissioner as provided by Section 9 of this article, the new rate takes effect on the date specified by the insurer in the filing, but not earlier than the 60th day after the date of filing of the rate with the commissioner, except as provided by Subsection (c) of this section. For the purposes of this section, the date the rate is received by the commissioner is the date of filing of the rate with the commissioner. From the date of filing of the rate with the commissioner to the effective date of the new rate, the insurer's previously filed rate that is in effect as provided in this article shall remain in effect. (c) The commissioner may approve a filing on written or electronic notification to the filer at any time before the 60th day after the date of filing of the rate with the commissioner or before the effective date specified by the insurer in the filing. The new rate may take effect on the receipt of the notice of the commissioner's approval. Sec. 5. SUPERVISION REQUIREMENT. If the commissioner determines after a hearing that an insurer's rates require supervision because of the insurer's financial condition or the insurer's rating practices, the commissioner may require the insurer to file with the commissioner all rates, supplementary rate information, and any supporting information prescribed by the commissioner. Sec. 6. PUBLIC INFORMATION. Each filing and any supporting information filed under this article is open to public inspection as of the date of the filing. Sec. 7. RIGHTS OF INSUREDS AND PUBLIC INSURANCE COUNSEL. (a) With respect to any filing in effect, an aggrieved insured or the public insurance counsel may make a written application to the commissioner for a hearing on the filing. The application must specify the grounds on which the applicant bases the grievance. If the commissioner finds that the application is made in good faith, that the applicant would be so aggrieved if the grounds in the application are established, and that those grounds otherwise justify holding the hearing, the commissioner shall hold a hearing not later than the 30th day after the date of receipt of the application. The commissioner shall give at least 10 days' written notice of the hearing to the applicant and to the insurer that made the filing in question. (b) If, after the hearing, the commissioner finds that the filing does not meet the requirements of this article, the commissioner shall issue an order specifying how the filing fails to meet the requirements of this article and stating the date on which, within a reasonable period after the date of the order, the filing is no longer in effect. The commissioner shall send copies of the order to the applicant and to each affected insurer. Sec. 8. QUARTERLY LEGISLATIVE REPORT. Each insurer subject to this article shall file with the commissioner on a quarterly basis information relating to changes in losses, premiums, and market share. The first filing under this article must include the information beginning with January 1, 2003. The commissioner shall report on a quarterly basis to the governor, lieutenant governor, and speaker of the house of representatives on the information provided by the insurers' reports, information obtained from market conduct examinations and analyses, and consumer complaints received by the department. Sec. 9. DISAPPROVAL. (a) The commissioner shall disapprove a rate if the commissioner determines that the rate filing made under this article does not meet the requirements of this article. The commissioner may give due consideration to the extent and nature of market competition in the personal automobile insurance and residential property insurance markets and to the availability or lack of availability of personal automobile insurance and residential property insurance in determining whether to disapprove any rates filed under this article. (b) If the commissioner disapproves a filing before the 60th day after the date of the filing of the rate with the commissioner, the commissioner shall issue an order specifying in what respects the filing fails to meet the requirements of this article. The filer is entitled to a hearing on written request made to the commissioner not later than the 30th day after the effective date of the disapproval order. (c) If the commissioner disapproves a rate that is in effect, the commissioner may issue a disapproval order only after a hearing held after at least 20 days' written notice to the insurer that made the filing. The disapproval order must be issued not later than the 15th day after the close of the hearing and must specify how the rate fails to meet the requirements of this article. The disapproval order must state the date on which the further use of that rate is prohibited. If, after notice and opportunity for hearing, the commissioner determines that a rate that is in effect should be disapproved, the commissioner, in the event of any overcharges to policyholders, shall require the insurer to refund to policyholders the difference in the amount of premiums paid under the disapproved rates and the amount of premiums payable under rates that meet the requirements of this article, except that refunds to policyholders the commissioner determines are de minimis may not be required. (d) If an insurer has no legally effective rate because of an order disapproving rates, the commissioner shall specify an interim rate at the time the order is issued. The interim rate may be modified by the commissioner on the commissioner's own motion or on motion by the insurer. The interim rate or any modification of that rate shall take effect immediately on the commissioner's decision setting the interim rate. When the rates are finally determined, the commissioner shall order any overcharge in the interim rates to be refunded to policyholders, except that refunds to policyholders the commissioner determines are de minimis may not be required. Sec. 10. RATE HEARINGS. Subject to Chapter 40 of this code, Chapter 2001, Government Code, applies to all hearings on rates conducted under this article. To the extent of any conflict between this article and Chapter 2001, Government Code, the provisions of this article prevail. Sec. 11. APPEAL. Any insurer or other party at interest as described by Section 7 of this article aggrieved by an order of the commissioner issued under this article may, not later than the 30th day after the date on which the commissioner issued the order, appeal the order in accordance with Subchapter D, Chapter 36 of this code. SECTION 2. Subsection (f), Article 5.01, Insurance Code, is amended to read as follows: (f) Notwithstanding Subsections (a) through (d) of this article, on and after June 1, 2003 [March 1, 1992], rates for motor vehicle insurance in this state are determined [as provided by the flexible rating program adopted] under Article 5.141 [Subchapter M] of this code [chapter]. SECTION 3. Article 5.13, Insurance Code, is amended to read as follows: Art. 5.13. SCOPE OF SUBCHAPTER [SUB-CHAPTER]. (a) This subchapter [Sub-chapter] applies to every insurance company, corporation, interinsurance exchange, mutual, reciprocal, association, Lloyds, or other organization or insurer writing any of the characters of insurance business herein set forth, hereinafter called "Insurer"; provided that nothing in this entire subchapter [Sub-chapter] shall [ever] be construed to apply to any county or farm mutual insurance company or association, as regulated under Chapters 911 [16] and 912 [17] of this code, except that Section 8, Article 5.13-2 of this code, shall apply to a county mutual insurance company with respect to commercial automobile insurance [Code]. (b) This subchapter [Sub-chapter] applies to the writing of casualty insurance and the writing of fidelity, surety, and guaranty bonds, on risks or operations in this State except as herein stated. (c) This subchapter [Sub-chapter] does not apply to the writing of motor vehicle, life, health, accident, professional liability, reinsurance, aircraft, fraternal benefit, fire, lightning, tornado, windstorm, hail, smoke or smudge, cyclone, earthquake, volcanic eruption, rain, frost and freeze, weather or climatic conditions, excess or deficiency of moisture, flood, the rising of the waters of the ocean or its tributaries, bombardment, invasion, insurrection, riot, civil war or commotion, military or usurped power, any order of a civil authority made to prevent the spread of a conflagration, epidemic or catastrophe, vandalism or malicious mischief, strike or lockout, water or other fluid or substance, resulting from the breakage or leakage of sprinklers, pumps, or other apparatus erected for extinguishing fires, water pipes or other conduits or containers, or resulting from casual water entering through leaks or opening in buildings or by seepage through building walls, including insurance against accidental injury of such sprinklers, pumps, fire apparatus, conduits or container, workmen's compensation, inland marine, ocean marine, marine, or title insurance; nor does this subchapter [Sub-chapter] apply to the writing of explosion insurance, except insurance against loss from injury to person or property which results accidentally from steam boilers, heaters or pressure vessels, electrical devices, engines and all machinery and appliances used in connection therewith or operation thereby. (d) This subchapter [Sub-chapter] shall not be construed as limiting in any manner the types or classes of insurance which may be written by the several types of insurers under appropriate statutes or their charters or permits. (e) The regulatory power herein conferred is vested in the commissioner [Board of Insurance Commissioners of the State of Texas. Within the Board, the Casualty Insurance Commissioner shall have primary supervision of regulation herein provided, subject however to the final authority of the entire Board]. SECTION 4. The heading to Article 5.13-2, Insurance Code, is amended to read as follows: Art. 5.13-2. RATES FOR GENERAL LIABILITY, COMMERCIAL AUTOMOBILE, AND COMMERCIAL PROPERTY INSURANCE COVERAGE SECTION 5. Sections 1 and 2, Article 5.13-2, Insurance Code, are amended to read as follows: Sec. 1. PURPOSE. This article governs the regulation of general liability, commercial automobile, commercial property, which shall include farm and ranch owners and farm and ranch policies, all commercial casualty, and medical professional liability insurance rates and forms. It does not govern [automobile,] fidelity, surety, or guaranty bonds. The purposes of this article are to: (1) promote the public welfare by regulating insurance rates to prohibit excessive, inadequate, or unfairly discriminatory rates; (2) promote availability of insurance; (3) promote price competition among insurers to provide rates and premiums that are responsive to competitive market conditions; (4) prohibit price-fixing agreements and other anticompetitive behavior by insurers; (5) regulate the insurance forms used for lines of insurance subject to this article to ensure that they are not unjust, unfair, inequitable, misleading, or deceptive; and (6) provide regulatory procedures for the maintenance of appropriate information reporting systems. Sec. 2. SCOPE. This article applies to all lines of general liability, commercial automobile, commercial property, all commercial casualty, and medical professional liability insurance written under policies or contracts of insurance issued by a licensed insurer, other than a fidelity, surety, or guaranty bond or an automobile insurance policy. SECTION 6. Subdivision (2), Section 3, Article 5.13-2, Insurance Code, is amended to read as follows: (2) "Insurer" means an insurer to which Article 5.13 of this code applies, but does not include the Texas Windstorm Insurance Association. However, the provisions of Sections 4, 5, 6, and 7 of this article shall not apply to Lloyd's or reciprocals with respect to commercial property insurance. The provisions of Section 8 of this article shall apply to county mutual insurance companies with respect to commercial automobile insurance. SECTION 7. Section 912.002, Insurance Code, is amended to read as follows: Sec. 912.002. LIMITED EXEMPTION FROM INSURANCE LAWS; APPLICABILITY OF CERTAIN LAWS. (a) A county mutual insurance company is exempt from the operation of all insurance laws of this state[, including the flexible rating program under Article 5.101,] except laws that are made applicable by their specific terms or except as specifically provided by this chapter. (b) A county mutual insurance company is subject to: (1) Sections 38.001 and 822.204; [and] (2) Articles 1.15, 1.15A, 1.16, 2.10, 4.10, 5.12, 5.37, 5.38, 5.39, 5.40, 5.49, 21.21, and 21.49; and (3) with respect to commercial automobile insurance, Section 8 of Article 5.13-2. SECTION 8. The following provisions of the Insurance Code are repealed: (1) Section (a-1), Article 5.96; (2) Article 5.101; and (3) Section 40.061. SECTION 9. This Act takes effect June 1, 2003, if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for effect on that date, this Act takes effect September 1, 2003.