79R5855 DLF/KCR-D

By:  Burnam                                                       H.B. No. 3398


A BILL TO BE ENTITLED
AN ACT
relating to regulation of certain personal lines of insurance. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. FINDINGS AND PURPOSE
SECTION 1.01. (a) The 79th Legislature finds that: (1) Texans pay the highest homeowners insurance rates in the nation; (2) actions of the 78th Legislature failed to substantially bring down Texas homeowners insurance rates; (3) actions of the 78th Legislature failed to substantially curtail the use of capricious and discriminatory insurance industry practices, such as insurance credit scoring and neighborhood redlining, that discriminate against Texans of color as well as Texans of lower and moderate income levels; (4) the Texas Department of Insurance has repeatedly agreed to settlements favorable to insurers found to be overcharging or discriminating against the insurer's own policyholders; and (5) while Texas homeowners continue to be subjected to unfair insurance industry practices and exorbitant insurance rates, insurers are experiencing their lowest loss ratios of the last 15 years. (b) Because of the conditions listed in Subsection (a) of this section, the purpose of this Act is to provide meaningful relief to Texas consumers from unfair insurance rates and unfair insurance industry practices by: (1) requiring rate reviews and rate rollbacks; (2) requiring that insurers submit rates, forms, and underwriting guidelines to the Texas Department of Insurance for prior approval before use; (3) banning insurance credit scoring in all personal lines of insurance; (4) implementing a 15 percent cap on variation in base rates within a county that may not be modified; and (5) implementing other provisions to increase the flow of information and increase fairness in the insurance market in Texas.
ARTICLE 2. PRIOR APPROVAL OF RATES AND POLICY FORMS
SECTION 2.01. Article 5.13(a), Insurance Code, is amended to read as follows: (a) This subchapter applies to every insurance company, corporation, interinsurance exchange, mutual, reciprocal, association, Lloyd's plan, 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 shall be construed to apply to any county or farm mutual insurance company or association, as regulated under Chapters 911 and 912 of this code, except that Article 5.13-2 of this code shall apply to a county mutual insurance company with respect to [personal automobile and] commercial automobile insurance, [residential and] commercial property insurance, and inland marine insurance. SECTION 2.02. Section 2, Section 5.13-2, Insurance Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows: (a) This article applies to all lines of the following insurance written under policies or contracts of insurance issued by an insurer authorized to engage in the business of insurance in this state: (1) general liability insurance; (2) [residential and] commercial property insurance, including farm and ranch insurance and farm and ranch owners insurance; (3) personal and commercial casualty insurance, except as provided by Subsection (b) of this section; (4) medical professional liability insurance; (5) fidelity and surety bonds other than criminal court appearance bonds; (6) personal umbrella insurance; (7) personal liability insurance; (8) [guaranteed auto protection (GAP) insurance; [(9)] involuntary unemployment insurance; (9) [(10)] financial guaranty insurance; (10) [(11)] inland marine insurance; (11) [(12)] rain insurance; (12) [(13)] hail insurance on farm crops; and (13) [(14) personal and] commercial automobile insurance. (c) Notwithstanding any other law, rates and forms for personal automobile insurance, including guaranteed auto protection (GAP) insurance, and residential property insurance are governed by Subchapters A, C, L, and U, Chapter 5, of this code. SECTION 2.03. Article 5.171, Insurance Code, is amended to read as follows: Art. 5.171. RATING TERRITORIES. Notwithstanding any other provision of this code, an insurer, in writing any insurance in this state including residential property or personal automobile insurance, may not use rating territories that subdivide a county unless: (1) the county is subdivided; and (2) the rate for any subdivisions within that county is not greater than 15 percent higher than the rate used in any other subdivisions in the county by that insurer[, except that the commissioner may by rule allow a greater rate difference for residential property insurance or personal automobile insurance]. SECTION 2.04. Section 912.002(b), Insurance Code, is amended to read as follows: (b) A county mutual insurance company is subject to: (1) Sections 38.001, 501.202, 501.203, and 822.204; (2) Chapters 221, 251, 252, 254, and 541; [and] (3) [(2)] Articles 1.15, 1.15A, 1.16, [1.35B,] 2.10, 21.21-12, [4.10, 5.12, 5.37, 5.38, 5.39, 5.40, 5.49, 21.21,] and 21.49; and (4) Subchapters A, C, L, and U, Chapter 5. SECTION 2.05. Section 941.003(b), Insurance Code, is amended to read as follows: (b) A Lloyd's plan is subject to: (1) Section 5, Article 1.10; (2) Article 1.15A; (3) Subchapters A, C, L, [Q, T,] and U, Chapter 5; (4) Chapters 251, 252, and 541; (5) Articles 21.21-12 [5.35, 5.38, 5.39, 5.40, and 5.49; [(5) Articles 21.21] and 21.49-8; (6) Sections 822.203, 822.205, 822.210, and 822.212; and (7) Article 5.13-2, as provided by that article. SECTION 2.06. Section 942.003(b), Insurance Code, is amended to read as follows: (b) An exchange is subject to: (1) Section 5, Article 1.10; (2) Articles 1.15, 1.15A, and 1.16; (3) Subchapters A, C, L, [Q, T,] and U, Chapter 5; (4) [Articles 5.35, 5.37, 5.38, 5.39, and 5.40; [(5)] Articles 21.21-12 [21.21] and 21.49-8; (5) Chapter 541; (6) Sections 822.203, 822.205, 822.210, 822.212, 861.254(a)-(f), 861.255, 862.001(b), and 862.003; and (7) Article 5.13-2, as provided by that article. SECTION 2.07. The following laws are repealed: (1) Article 5.01(f), Insurance Code; (2) Article 5.03(g), Insurance Code; (3) Article 5.04(c), Insurance Code; (4) Article 5.06(12), Insurance Code; (5) Article 5.09(c), Insurance Code; (6) Article 5.11(c), Insurance Code; (7) Section 13, Article 5.13-2, Insurance Code; (8) Article 5.25(b), Insurance Code; (9) Article 5.25A(b), Insurance Code; (10) Article 5.26(i), Insurance Code; (11) Article 5.29(b), Insurance Code; (12) Article 5.30(b), Insurance Code; (13) Article 5.31(b), Insurance Code; (14) Article 5.32(b), Insurance Code; (15) Article 5.34(b), Insurance Code; (16) Article 5.35(k), Insurance Code, as added by Section 21.22, Chapter 206, Acts of the 78th Legislature, Regular Session, 2003; (17) Article 5.39(b), Insurance Code; (18) Article 5.40(d), Insurance Code; (19) Article 5.41(b), Insurance Code; (20) Article 5.96(a-1), Insurance Code; (21) Article 5.96A(d), Insurance Code; and (22) Subchapter T, Chapter 5, Insurance Code. SECTION 2.08. This article applies only to an insurance policy that is delivered, issued for delivery, or renewed on or after January 1, 2006. A policy that is delivered, issued for delivery, or renewed before January 1, 2006, is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for this purpose.
ARTICLE 3. RATE FILING AND RATE ASSESSMENT
SECTION 3.01. Subchapter B, Chapter 5, Insurance Code, is amended by adding Article 5.14 to read as follows: Article 5.14. FILING OF RESIDENTIAL PROPERTY AND PERSONAL AUTOMOBILE INSURANCE RATES FOR RATE ASSESSMENT Sec. 1. APPLICABILITY; DEFINITIONS. (a) This article applies only to residential property and personal automobile insurance. (b) The definitions under Article 5.13-2 of this code apply to this article. Sec. 2. CONSTRUCTION WITH OTHER LAW. (a) Notwithstanding any other law, rates for residential property and personal automobile insurance are governed by this article from the effective date of this article until the completion of the rate assessment under this article and any resulting hearings or other proceedings under this article. (b) When the rate assessment and any resulting hearings or other proceedings under this article are completed, rates for residential property and personal automobile insurance are governed by Subchapters A, B, and L, Chapter 5, of this code. Sec. 3. RATE STANDARDS. (a) A rate filed by an insurer under Section 4 of this article or a rate ordered by the commissioner following a rate hearing under Section 5 of this article may not be excessive, inadequate, unfairly discriminatory, or unreasonable. (b) A rate ordered by the commissioner following a rate hearing under Section 5 of this article must comply with the rate standards described by Subsection (a) of this section and may not be confiscatory. Sec. 4. RATE FILING; RATE ASSESSMENT. (a) Not later than the 20th day after the effective date of this article, each insurer writing residential property or personal automobile insurance that is also subject to Subchapter A or B, Chapter 5, of this code shall file with the commissioner the insurer's rates, supporting information, and supplementary rating information. If the insurer has made a rate filing under Article 5.13-2 of this code not more than 30 days before the effective date of this article, the insurer may: (1) notify the department that the insurer is using the rate filing submitted under Article 5.13-2 of this code to comply with the requirements of this article; or (2) file an update to the material filed under Article 5.13-2 of this code. (b) If, after reviewing a filing under Subsection (a) of this section, the commissioner determines that the filing does not contain information sufficient to allow the commissioner to determine if the filed rate meets all rate standards under Section 3 of this article, not later than the 10th day after the insurer makes the filing, the commissioner may request in writing any specific additional information from the insurer necessary to make the determination. (c) Not later than the 30th day after the date the department receives an insurer's filing under Subsection (a) of this section, the commissioner shall: (1) if the filed rate meets all rate standards under Section 3 of this article, approve the filed rate; or (2) if the filed rate fails to meet any rate standard under Section 3 of this article, disapprove the filed rate and issue an order specifying in what respects the filed rate fails to comply with the rate standards. Sec. 5. HEARING. If the commissioner disapproves a rate under Section 4(c)(2) of this article, the department shall hold a rate hearing and the commissioner shall issue an order in accordance with Chapter 40 of this code. Sec. 6. JUDICIAL REVIEW. (a) Not later than the 10th day after the date an insurer receives the commissioner's order issued under Section 5 of this article, the insurer may file a petition for judicial review in a district court of Travis County. The standard of review of the commissioner's order is substantial evidence. (b) During the pendency of an appeal under this section, the insurer may charge either the insurer's existing rates or the rate ordered by the commissioner under Section 5 of this article. Sec. 7. REFUND. If on final appeal a court upholds the commissioner's order issued under Section 5 of this article, the insurer shall refund the difference in overcharged premium, if any, plus interest to each policyholder. The interest rate is the prime rate for the calendar year in which the refund is issued, plus six percent. Sec. 8. CERTAIN SETTLEMENTS PROHIBITED. If an insurer files a petition for judicial review under Section 6 of this article, the department may not agree to a settlement of the lawsuit in any amount that is less than the amount of the refund, including interest, that the insurer would be obligated to pay under Section 7 of this article. Sec. 9. EXPIRATION. (a) This article expires September 1, 2006. (b) The expiration of this article does not affect an action or proceeding against an insurer subject to this article for a failure to comply with this article before the expiration of this article, regardless of when the action or proceeding was commenced, and this article is continued in effect only for that purpose. SECTION 3.02. (a) Article 5.14, Insurance Code, as added by this article, applies to an insurer who is writing residential property or personal automobile insurance in this state on the effective date of this Act. (b) This article applies to a residential property or personal automobile insurance policy that is delivered, issued for delivery, or renewed on or after the effective date of this Act and to rates for such a policy. A residential property or personal automobile insurance policy delivered, issued for delivery, or renewed before the effective date of this Act and the rates for such a policy are governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.
ARTICLE 4. USE OF CERTAIN POLICY FORMS
SECTION 4.01. Article 5.35, Insurance Code, is amended by adding Subsection (l) to read as follows: (l) An insurer that offers a residential property insurance policy in this state and that is authorized to offer a Homeowners "B" policy form, as adopted by the commissioner, must write the residential property insurance policy using a Homeowners "B" policy form unless the insured rejects coverage under an HO-B policy in writing. SECTION 4.02. This article applies only to an insurance policy that is delivered, issued for delivery, or renewed on or after January 1, 2006. A policy that is delivered, issued for delivery, or renewed before January 1, 2006, is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for this purpose.
ARTICLE 5. REGULATION OF UNDERWRITING GUIDELINES
SECTION 5.01. Subchapter B, Chapter 21, Insurance Code, is amended by adding Article 21.21-12 to read as follows: Article 21.21-12. REGULATION OF UNDERWRITING GUIDELINES Sec. 1. DEFINITIONS. In this article: (1) "Actuarially sound" means the underwriting guideline is shown to differentiate among consumers who have different expected costs associated with the transfer of risk, all other relevant factors being the same. (2) "Person" includes any individual or entity engaged in the business of insurance, including any individual or entity described by Section 82.002 of this code. (3) "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, that are not primarily used for the delivery of goods, materials, or services, unless that use is in farm or ranch operations and the vehicles are owned or leased by one or more individuals. (4) "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. (5) "Underwriting guideline" means a rule, standard, marketing decision, guideline, or practice, whether written, oral, or electronic, used by an insurer or its agent to examine, bind, accept, reject, renew, nonrenew, cancel, or limit coverages made available to classes of consumers or individual consumers. Sec. 2. PROHIBITION. A person may not use an underwriting guideline for personal automobile insurance or residential property insurance, other than underwriting guidelines described by Section 3 of this article, without the prior approval of the commissioner. Sec. 3. PERMISSIBLE UNDERWRITING GUIDELINES. (a) A person is not required to obtain the commissioner's prior approval to use an underwriting guideline if the guideline complies with this section. (b) An underwriting guideline for personal automobile insurance may be based on the following characteristics: (1) average miles driven in a year or other specified time period; (2) accidents in which a person to be insured under the policy can reasonably be considered to have been at fault and which resulted in bodily injury or property damage; (3) an alleged violation of a law regulating the operation of motor vehicles if the alleged violation resulted in: (A) a final conviction in any court in the United States; (B) forfeiture of bond; or (C) payment of a fine or an amount accepted by the court; (4) the making of a fraudulent insurance claim; or (5) the number of years of driving experience and years licensed to drive. (c) An underwriting guideline for residential property insurance may be based on the following characteristics: (1) the physical condition of the property to be insured, provided the underwriting guideline has specific and objective measures to evaluate the hazard; (2) claim experience on a residential property policy arising out of the owner's negligence; (3) whether the structure to be insured is vacant or unoccupied for more than 60 days; (4) the making of a fraudulent insurance claim; or (5) an act of arson. (d) A person may use an underwriting guideline adopted by the commissioner by rule. The commissioner may adopt an underwriting guideline under this subsection only if the commissioner determines after a hearing that the underwriting guideline: (1) is actuarially sound; (2) promotes the mitigation of losses; and (3) does not have an adverse impact based on the insured's income level. Sec. 4. PRIOR APPROVAL STANDARDS. (a) The commissioner may not approve the use of an underwriting guideline unless the underwriting guideline: (1) is actuarially sound; (2) promotes the mitigation of losses; and (3) does not have an adverse impact based on the insured's income level. (b) The burden of proof in any proceeding regarding whether an underwriting guideline is actuarially sound is on the party that used or intends to use the underwriting guideline. Sec. 5. CREDIT SCORING PROHIBITED. The commissioner may not approve, and a person may not use, an underwriting guideline based in whole or in part on credit scoring prohibited under Article 21.49-2U. SECTION 5.02. This article applies only to an insurance policy that is delivered, issued for delivery, or renewed on or after January 1, 2006. A policy that is delivered, issued for delivery, or renewed before January 1, 2006, is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for this purpose.
ARTICLE 6. CREDIT SCORING
SECTION 6.01. Sections 1(2), (4), and (7), Article 21.49-2U, Insurance Code, are amended to read as follows: (2) "Agent" means a person licensed or required to be licensed as a general property and casualty insurance agent under Subchapters B, C, D, or E, Chapter 4051 [Article 21.14 of this code]. (4) "Consumer" means an individual whose credit information has been reported to or is in the possession of a consumer reporting agency or an insurer [is used or whose credit score is computed in the underwriting or rating of a personal insurance policy]. The term includes an applicant for insurance coverage. (7) "Credit report" means any written, oral, or other communication of information by a consumer reporting agency that[: [(A)] bears on a consumer's creditworthiness, credit standing, or credit capacity [; and [(B) is used or expected to be used or collected in whole or in part to serve as a factor to determine personal insurance premiums, eligibility for coverage, or tier placement]. SECTION 6.02. Section 2, Article 21.49-2U, Insurance Code, is amended to read as follows: Sec. 2. APPLICATION. This article applies to each [an] insurer that writes personal insurance coverage [and uses credit information or credit reports for the underwriting or rating of that coverage]. SECTION 6.03. Section 3, Article 21.49-2U, Insurance Code, is amended to read as follows: Sec. 3. [PROHIBITED] USE OF CREDIT INFORMATION PROHIBITED. (a) An insurer may not: (1) use an underwriting guideline [a credit score] that is based, in whole or in part, on the credit information, credit report, or credit score of an applicant for insurance coverage or any other person other than the applicant who would be insured under a policy of personal insurance [computed using factors that constitute unfair discrimination]; (2) refuse to underwrite [deny], cancel, or nonrenew a policy of personal insurance based, in whole or in part, [solely] on the [basis of] credit information, credit report, or credit score of an applicant for insurance coverage or any other person other than the applicant who would be insured under the policy [without consideration of any other applicable underwriting factor independent of credit information]; [or] (3) take an action that results in an adverse effect against a consumer because the consumer does not have a credit card account; (4) charge an applicant for insurance coverage a higher premium than otherwise would be charged based, in whole or in part, on the credit information, credit report, or credit score of the applicant or any other person other than the applicant who would be insured under a policy of personal insurance; (5) rate a risk based, in whole or in part, on the credit information, credit report, or credit score of an applicant for insurance coverage or any other person other than the applicant who would be insured under a policy of personal insurance, including: (A) providing or removing a discount; (B) assigning the applicant for insurance coverage to a rating tier; or (C) placing an applicant for insurance coverage with an affiliated company; or (6) require a particular payment plan based, in whole or in part, on the credit information, credit report, or credit score of the applicant for insurance coverage or any other person other than the applicant who would be insured under a policy of personal insurance [without consideration of any other applicable factor independent of credit information]. (b) An insurer may not consider an absence of credit information or an inability to determine credit information for an applicant for insurance coverage or insured as a factor in underwriting or rating an insurance policy [unless the insurer: [(1) has statistical, actuarial, or reasonable underwriting information that: [(A) is reasonably related to actual or anticipated loss experience; and [(B) shows that the absence of credit information could result in actual or anticipated loss differences; [(2) treats the consumer as if the applicant for insurance coverage or insured had neutral credit information, as defined by the insurer; or [(3) excludes the use of credit information as a factor in underwriting and uses only other underwriting criteria]. SECTION 6.04. Section 16, Article 21.49-2U, Insurance Code, is amended to read as follows: Sec. 16. DUTIES OF DEPARTMENT. The department shall [: [(1) update insurer profiles maintained on the department's Internet website to provide information to consumers stating whether or not an insurer uses credit scoring; and [(2)] post the report required under Section 15 of this article on the department's Internet website. SECTION 6.05. Sections 4-11 and Section 13, Article 21.49-2U, Insurance Code, are repealed.
ARTICLE 7. WITHDRAWAL AND RESTRICTION PLANS
SECTION 7.01. Section 827.001, Insurance Code, is amended by adding Subdivision (3) to read as follows: (3) "Affiliate" has the meaning described by Section 823.003. SECTION 7.02. Sections 827.006, 827.007, and 827.008, Insurance Code, are amended to read as follows: Sec. 827.006. [RESUMPTION OF] WRITING INSURANCE AFTER [COMPLETE] WITHDRAWAL. An insurer that withdraws from writing personal automobile or residential property insurance [all lines of insurance] in this state and any affiliate of that insurer may not, without the approval of the commissioner, write any line of [resume writing] insurance in this state before the fifth anniversary of the date of withdrawal. Sec. 827.007. PENALTIES. The commissioner may impose the civil penalties under Chapter 82 on an insurer that violates this chapter [fails to obtain the commissioner's approval before the insurer: [(1) withdraws from writing a line of insurance in this state; or [(2) reduces the insurer's total annual premium volume by 75 percent or more in any year]. Sec. 827.008. RESTRICTION PLAN. (a) Before an insurer [, in response to a catastrophic natural event that occurred during the preceding six months,] may restrict writing new personal automobile or residential property insurance business in this state or a rating territory [in a line of personal automobile or residential property insurance], the insurer must file a proposed restriction plan with the commissioner for the commissioner's review and approval. (b) The commissioner may not approve a restriction plan unless the commissioner determines that the plan will not have an adverse impact on the affordability and availability of insurance in this state [modify, restrict, or limit a restriction plan under this section as necessary if the commissioner finds that a line of insurance subject to the restriction plan is not offered in this state in a quantity or manner to adequately cover the risks in this state or to adequately protect the residents of this state and policyholders in this state in light of the impact of the catastrophic natural event]. The commissioner may by order set the date on which the insurer's restriction begins. [(c) A withdrawal plan must be filed and approved under Sections 827.003 and 827.004 if an insurer's decision not to accept new business in a line of personal automobile or residential property insurance results in a reduction of the insurer's total annual premium volume by 50 percent or more.] SECTION 7.03. Sections 827.010(a) and (d), Insurance Code, are amended to read as follows: (a) The commissioner may impose a moratorium of not longer than two years on: (1) the approval of withdrawal plans; or (2) the approval [implementation] of plans to restrict the writing of new business described by Section 827.008. (d) To impose or renew a moratorium under this section, the commissioner must determine, after notice and hearing, that [a catastrophic event has occurred and that as a result of that event] a particular line of insurance is not reasonably expected to be available and affordable to a substantial number of policyholders or potential policyholders in this state or, in the case of lines of personal automobile or residential property insurance, in a rating territory. SECTION 7.04. The change in law made by this article applies only to the conduct of an insurer or its affiliate on or after September 1, 2005. The conduct of an insurer or its affiliate before September 1, 2005, is governed by the law as it existed at the time the conduct occurred and that law is continued in effect for this purpose.
ARTICLE 8. EFFECTIVE DATE
SECTION 8.01. This Act takes effect September 1, 2005.