78R8850 T

By:  Taylor                                                       H.B. No. 2737


A BILL TO BE ENTITLED
AN ACT
relating to FAIR Plan (Fair Access to Insurance Requirements) Act. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 21, Insurance Code, is amended by amending Article 21.49A to read as follows: Art. 21.49A. FAIR Plan (Fair Access to Insurance Requirements) Act Sec. 1. Authority; Purpose. (a) If the commissioner determines, after a public hearing, that in all or any part of the state residential property insurance is not reasonably available in the voluntary market to a substantial number of insurable risks [and that at least 50 percent of the applicants to the residential property market assistance program who are qualified under the plan of operation, after the commissioner has made insurer participation mandatory under the plan of operation, have not been placed with an insurer in the previous 12-month period,] the commissioner may establish a FAIR (Fair Access to Insurance Requirements) Plan to deliver residential property insurance to citizens of this state in underserved areas, which shall be determined and designated by the commissioner by rule. Each insurer, as defined herein, as a condition of its authority to transact residential property insurance in this state, shall participate in the FAIR Plan Association in accordance with this Act. (b) The FAIR Plan may not provide windstorm and hail insurance coverage for a risk eligible for that coverage under Article 21.49 of this code. Sec. 2. Definitions. (1) "FAIR Plan Association" or "association" means a nonprofit association established pursuant to this Act to develop and administer a program to provide residential property insurance in designated underserved areas in this state. (2) "Insurer" means any licensed insurer writing property and casualty insurance in this state, including: (A) a Lloyd's plan company; and (B) a reciprocal or interinsurance exchange. (3) "Residential property insurance" means the coverage against loss to real or tangible personal property at a fixed location provided in a homeowners policy, residential fire and allied lines policy, or farm and ranch owners policy. (4) "Inspection bureau" means the organization or organizations designated by the FAIR Plan Association with the approval of the commissioner to make inspections to determine the condition of the properties for which residential property insurance is sought and to perform such other duties as may be authorized by the FAIR Plan Association or the commissioner. The manner and scope of the inspection and evaluation report for residential property shall be prescribed by the association pursuant to the plan of operation. (5) "Net direct premiums" means gross direct written premiums less return premiums upon canceled contracts (irrespective of reinsurance assumed or ceded) written on residential property pursuant to this Act. (6) "Underserved area(s)" means area(s) designated as underserved by the commissioner by rule. In determining which areas will be designated as underserved, the commissioner shall consider the factors specified in Section 1, Article 5.35-3, of this code. Sec. 3. Governing Committee; Plan of Operation. (a) The FAIR Plan shall be administered by the governing committee of the association pursuant to a plan of operation. Subject to the approval of the commissioner, the governing committee shall develop the plan of operation and propose amendments thereto. The plan of operation and any amendments thereto shall be adopted by the commissioner by rule. The governing committee may on its own initiative or at the request of the commissioner amend the plan of operation. (b) The governing committee shall be composed of 11 members appointed by the commissioner as follows: (1) five members who represent the interests of insurers; (2) four public members; and (3) two members who are licensed local recording agents. (c) The commissioner or the commissioner's designated representative from within the Texas Department of Insurance shall serve as an ex officio member. (d) To be eligible to serve on the governing committee as a representative of insurers, a person must be a full-time employee of an authorized insurer. (e) The plan of operation shall provide: (1) for establishment of a FAIR Plan Association for the issuing of residential property insurance pursuant to this Act and the distribution of the losses and the expenses in the writing of such insurance in this state; (2) that all insurers licensed to write property insurance and writing residential property insurance shall participate in the writings, expenses, profits, and losses of the association, in the proportion that the net direct premiums, of each participating insurer, written in this state during the preceding calendar year, bear to the aggregate net direct premium written in this state by all participating insurers; such information shall be determined in accordance with the residential property statistical plan adopted by the commissioner; (3) that a participating insurer is entitled to receive credit for similar insurance voluntarily written in a designated underserved area and its participation in the writings in the association shall be reduced in accordance with the provisions of the plan of operation; (4) for the immediate binding of eligible risks; for the use of premium installment payment plans, adequate marketing, and service facilities; and for the establishment of reasonable service standards; (5) procedures for efficient, economical, fair, and nondiscriminatory administration of the FAIR Plan Association; (6) procedures for determining the net level of participation required for each insurer in the FAIR Plan Association; (7) for the use of deductibles and other underwriting devices and for assessment of all members in amounts sufficient to operate the association; and establish maximum limits of liability to be placed through the program; and commissions to be paid to the licensed agents submitting applications; (8) that the association issue policies in its own name; (9) reasonable underwriting standards for determining insurability of the risk; (10) procedures for the assumption and ceding of reinsurance by the association; and (11) any other procedures or operational matters deemed necessary by the governing committee or the commissioner. Sec. 4. FAIR Plan Association. Pursuant to procedures and requirements set forth in the plan of operation, the FAIR Plan Association (association) shall develop and administer a program for participation by all insurers licensed to write property insurance in this state and writing residential property insurance in this state. The association shall make residential property insurance available to applicants in underserved areas whose property is insurable in accordance with reasonable underwriting standards but who, after diligent efforts, are unable to procure such insurance through the voluntary market, as evidenced by two declinations from insurers licensed to write and actually writing residential property insurance in the state. Sec. 5. Powers of the Association; Centralized Operations Authorized. (a) The association is authorized, for FAIR Plan purposes only, to issue policies of insurance and endorsements thereto in its own name or a trade name duly adopted for that purpose, and to act on behalf of all participating insurers in connection with said policies and otherwise in any manner necessary to accomplish the purposes of this Act, including but not limited to issuance of policies, collection of premiums, issuance of cancellations, and payment of commissions, losses, judgments, and expenses. (b) The participating insurers shall be liable to the association as provided in this Act and the plan of operation for the expenses and liabilities so incurred by the association, and the association shall make assessments against the participating insurers as required to meet such expenses and liabilities. In connection with any policy issued by the association: (1) service of any notice, proof of loss, legal process, or other communication with respect to the policy shall be made upon the association; and (2) any action by the insured constituting a claim under the policy shall be brought only against the association, and the association shall be the proper party for all purposes in any action brought under or in connection with any such policy. The foregoing requirements shall be set forth in any policy issued by the association and the form and content of any such policy shall be subject to the approval of the commissioner. (c) The association is authorized to assume and cede reinsurance in conformity with the plan of operation. (d) Each insurer must participate in the writings, expenses, profits, and losses of the association in the proportion that its net direct premiums written bear to the aggregate net direct premiums written by all insurers. Sec. 6. Property Inspection; FAIR Plan Procedure. (a) Any person having an insurable interest in real or tangible personal property at a fixed location in an underserved area who, after diligent effort has been unable to obtain residential property insurance, as evidenced by two current declinations from insurers licensed to write property insurance and actually writing residential property insurance in the state, is entitled upon application to the association to an inspection and evaluation of the property by representatives of the inspection bureau. (b) Applications may be made on behalf of the applicant by a licensed general lines property and casualty [local recording] agent and shall be submitted on forms prescribed by the association. (c) Promptly after the request for inspection is received, an inspection must be made and an inspection report filed with the association and made available to the applicant upon request. (d) If the inspection bureau finds that the residential property meets the reasonable underwriting standards established in the plan of operation, the applicant shall be so informed in writing and a policy or binder shall be issued by the association. If the residential property does not meet the criteria, the applicant shall be informed, in writing, of the reasons for the failure of the residential property to meet the criteria. (e) If, at any time, the applicant makes improvements in the residential property or its condition which the applicant believes are sufficient to make the residential property meet the criteria, a representative of the inspection bureau shall reinspect the residential property upon request. In any case, the applicant for residential property insurance shall be eligible for one reinspection any time within 60 days after the initial FAIR Plan inspection. If upon reinspection the residential property meets the reasonable underwriting standards established in the plan of operation, the applicant shall be so informed in writing and a policy or binder shall be issued by the association. Sec. 7. Approval of Rates. The association shall file with the commissioner for approval the proposed rates and supplemental rate information to be used in connection with the issuance of policies or endorsements. Rates shall be set in an amount sufficient to carry all claims to maturity and to meet the expenses incurred in the writing and servicing of the business. Within 60 days of the filing of the proposed rates, the commissioner shall enter an order either approving or disapproving, in whole or in part, the proposed rates. The commissioner may, upon notice to the association, extend the period for entering an order under this section an additional 30 days. No such policies or endorsements shall be issued until such time as the commissioner approves the rates to be applied to the policy or endorsement. An order disapproving a rate shall state the grounds for the disapproval and the findings in support thereof. Sec. 8. Appeals; Judicial Review. (a) Any applicant or affected insurer has the right of appeal to the association. A decision of the association may be appealed to the commissioner within 30 days after such decision. (b) All orders or decisions of the commissioner made pursuant to this Act are subject to judicial review in accordance with Sec. 36.201-36.205 [Article 1.04] of this code. Sec. 9. Immunity from Liability. There is no liability on the part of, and no cause of action against insurers, the inspection bureau, the association, the governing committee, their agents or employees, or the commissioner or the commissioner's authorized representatives, with respect to any inspections required to be undertaken by this Act or for any acts or omissions in connection therewith, or for any statements made in any report and communication concerning the insurability of the property, or in the findings required by the provisions of this Act, or at the hearings conducted in connection with such inspections. Sec. 10. Insolvency. In the event any participating insurer fails, by reason of insolvency, to pay any assessment, the association shall cause the reimbursement ratios to be immediately recalculated, excluding therefrom the amount of the insolvent insurer's assessment determined by the commissioner to be uncollectible, so that such uncollectible amount is, in effect, assumed and redistributed among the remaining participating insurers. Sec. 11. Assessments and Premium Surcharges. Should a deficit occur in the association, the association shall assess participating insurers in accordance with this section and each insurer may charge a premium surcharge on every property insurance policy issued by it insuring property in this state, the effective date of which policy is within the three-year period commencing 90 days after the date of assessment by the association. The amount of the surcharge shall be calculated on the basis of a uniform percentage of the premium on such policies equal to one-third of the ratio of the amount of an insurer's assessment to the amount of its direct earned premiums as reported in its financial statement to the department for the calendar year immediately preceding the year in which the assessment is made, such that over the period of three years the aggregate of all such surcharges by an insurer shall be equal to the amount of the assessment of such insurer. The minimum surcharges on a policy may be $1; all surcharges may be rounded to the nearest dollar. Sec. 12. Sanctions. If the association, inspection bureau, or participating insurer is found to be in violation of or in failure to comply with this Act, each entity shall be subject to the sanctions authorized by Sec. 82.001-82.003 and 82.051-82.056 [in Article 1.10] of this code, including administrative penalties authorized under Sec. 84.001-84.003 and 84.021-84.022 [Article 1.10E] of this code. The commissioner may also utilize any other disciplinary procedures authorized by this code, including the cease and desist procedures authorized Sec. 83.001-83.004 and 83.051-83.055 [by Article 1.10A] of this code. Sec. 13. Annual Report. The association shall compile a calendar year annual operating report and submit such annual report to the commissioner on or before March 31 of the following calendar year. This annual report shall be a matter of public record. Sec. 14. Powers of the Commissioner. (a) In addition to any powers conferred upon the commissioner by this or any other law, the commissioner is charged with the authority to supervise the association and the inspection bureau. In addition, the commissioner has the power: (1) to examine the operation of the association and the inspection bureau through free access to all the books, records, files, papers, and documents relating to their operation and may summon, qualify, and examine as witnesses all persons having knowledge of such operations, including the governing committee, officers, or employees thereof; (2) to do all things necessary to enable the State of Texas and the association to fully participate in any federal program of reinsurance which may be enacted for purposes similar to the purposes of this Act; (3) to require such reports from the association concerning risks insured by the association pursuant to this Act as may be deemed necessary; and (4) to adopt policy forms, endorsements, rates, and rating and rule manuals for use by the association. SECTION 2. This Act takes effect immediately 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 immediate effect, this Act takes effect September 1, 2003.