79R7124 MFC-F
By: Janek S.B. No. 15
A BILL TO BE ENTITLED
AN ACT
relating to civil claims involving exposure to asbestos and silica.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. FINDINGS; PURPOSE. (a) The Legislature of the
State of Texas makes findings as stated in this section.
(b) Asbestos is a mineral that was used extensively in
industrial applications, especially between the 1940s and the
1970s. It is estimated that as many as 27 million American workers
were exposed to asbestos between 1940 and 1979. Exposure to
asbestos, particularly through inhalation of asbestos fibers, has
allegedly been linked to certain malignant and nonmalignant
diseases, including mesothelioma and asbestosis. These diseases
have latency periods of up to 40 years.
(c) Over the last three decades, hundreds of thousands of
lawsuits alleging asbestos-related disease have been filed
throughout the United States. In the early 1990s, between 15,000
and 20,000 new lawsuits alleging asbestos-related disease were
filed each year. By the late 1990s, the number of new lawsuits
alleging asbestos-related disease filed each year was more than
double the number of yearly filings seen in the early 1990s. By one
estimate, the number of asbestos lawsuits pending in state and
federal courts in the United States doubled in the 1990s, from
approximately 100,000 to more than 200,000 claims.
(d) In 1991, the Judicial Conference Ad Hoc Committee on
Asbestos Litigation, appointed by United States Supreme Court Chief
Justice William Rehnquist, found that "the [asbestos litigation]
situation has reached critical dimensions and is getting worse."
In 1997, the United States Supreme Court acknowledged that the
country is in the midst of an "asbestos-litigation crisis." AmChem
Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997).
(e) Texas has not been spared this crisis. Since 1988, more
lawsuits alleging asbestos-related disease have been filed in Texas
than in any other state. Thousands of asbestos lawsuits are pending
in Texas courts today.
(f) This asbestos litigation crisis is due, in part, to
for-profit litigation screening of persons with possible
occupational exposure to asbestos and to the existence of statutes
of limitations that begin to run based merely on knowledge of a
possible asbestos-related disease or symptom. The for-profit
screening process identifies individuals with radiographically
detectable markings on their lungs that are consistent with
asbestos-related disease regardless of whether the individuals
have any physical impairment. The identified individuals then file
lawsuits, in part to avoid the running of limitations triggered by
the discovery that they may have an asbestos-related injury. Many
of the identified individuals (estimated to be as many as 90 percent
of recently identified individuals) are not experiencing any
symptoms of asbestos-related disease and are not suffering from any
asbestos-related illness affecting their daily functions.
(g) The crush of asbestos litigation has been costly to
employers, employees, litigants, and the court system. In 2003,
the American Bar Association Commission on Asbestos Litigation
noted that in 1982, the nation's single largest supplier of
asbestos-containing insulation products, the Johns-Manville
Corporation, "declared bankruptcy due to the burden of the asbestos
litigation." Since then, more than 70 other companies have
declared bankruptcy due to the burden of asbestos litigation. It is
estimated that between 60,000 and 128,000 American workers already
have lost their jobs as a result of asbestos-related bankruptcies
and that eventually 432,000 jobs will be lost due to
asbestos-related bankruptcies. Each worker who loses a job due to
an asbestos-related bankruptcy loses between $25,000 and $50,000 in
wages over the worker's career. These workers also have seen the
value of their 401(k) retirement plans drop by 25 percent or more
due to these bankruptcies.
(h) Additionally, it is estimated that asbestos litigation
has already cost over $54 billion, with well over half of this
expense going to attorney's fees and other litigation costs. The
crowded dockets that result from the crush of asbestos cases filed
by persons who are not functionally or physically impaired by any
asbestos-related illness prevent seriously ill claimants from
having their day in court, while those who have had their day in
court often find that the value of their recovery is seriously
reduced when the company against whom the judgment was rendered
files bankruptcy.
(i) Silica is a naturally occurring mineral and is the
second most common constituent of the earth's crust. Crystalline
silica is present in sand, quartz, and granite.
(j) Silica-related illness, including silicosis, can occur
when silica is inhaled. To be inhaled, the silica particles must be
sufficiently small to be respirable. These tiny particles are
created when sand is pulverized in the sandblasting process and may
be found in the fine silica flour used in various foundry processes.
(k) Silicosis was recognized as an occupational disease
many years ago. In fact, the American Foundry Society has
distributed literature to its members warning of the dangers of
silica exposure for more than 70 years. By the 1930s, the federal
government had launched a silica awareness campaign which led to
greater protection for workers exposed to silica dust. As a result,
the number of silica lawsuits filed each year was relatively
predictable. This trend has changed. The number of new lawsuits
alleging silica-related disease being filed each year has begun to
rise precipitously in recent years. For example, one of America's
largest suppliers of industrial sand had more than 15,000 new
claims filed in the first six months of 2003, which is three times
the number of claims it had in all of 2002 and more than 10 times the
number of claims it had in all of 2001.
(l) Silica claims, like asbestos claims, often arise when an
individual is identified as having markings on the individual's
lungs that are possibly consistent with silica exposure, but the
individual has no functional or physical impairment from any
silica-related disease. Recent studies indicate that these
individuals are being identified through the efforts of lawyers who
are compensated by generating contingency fees, just as with
asbestos litigation. The identified individuals, like those
alleging asbestos-related injury, file lawsuits under the belief
that they must do so to avoid having their claims barred by
limitations even though they have no current impairment and may
never have any impairment. It is, therefore, necessary to address
silica-related litigation in order to avoid an asbestos-like
litigation crisis in Texas.
(m) It is the purpose of this Act to protect the right of
people with asbestos-related and silica-related impairments and
injuries to obtain compensation in a fair and efficient manner
through the Texas court system, while at the same time preventing
scarce judicial and litigant resources from being misdirected by
the premature claims of individuals who have been exposed to
asbestos or silica but have no functional or physical impairment
from asbestos-related or silica-related disease. To that end, this
Act:
(1) adopts medically accepted standards for
differentiating between individuals with nonmalignant
asbestos-related or silica-related disease causing functional
impairment and individuals with no functional impairment or whose
impairment is caused solely by some other cause, such as asthma,
emphysema, or smoking;
(2) provides a method to obtain the dismissal of
lawsuits in which the exposed person has no functional impairment,
while at the same time protecting a person's right to bring suit on
discovering an asbestos-related or silica-related impairment or
injury; and
(3) creates an extended period before limitations
begin to run in which to bring claims for nonmalignant injuries
caused by inhalation or ingestion of asbestos or by the inhalation
of silica to preserve the right of those who have been exposed to
asbestos or silica but are not yet impaired to bring a claim later
in the event that they develop an asbestos-related or
silica-related disease or injury.
SECTION 2. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 90 to read as follows:
CHAPTER 90. CLAIMS INVOLVING ASBESTOS AND SILICA
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Asbestos" means chrysotile, amosite,
crocidolite, tremolite asbestos, anthophyllite asbestos,
actinolite asbestos, and any of these minerals that have been
chemically treated or altered.
(2) "Asbestos-related injury" means personal injury
or death allegedly caused, in whole or in part, by inhalation or
ingestion of asbestos.
(3) "Asbestosis" means bilateral diffuse interstitial
fibrosis of the lungs caused by inhalation of asbestos fibers.
(4) "Certified B-reader" means a person who has
successfully completed the x-ray interpretation course sponsored
by the National Institute for Occupational Safety and Health
(NIOSH) and passed the B-reader certification examination for x-ray
interpretation and whose NIOSH certification is current at the time
of any readings required by this chapter.
(5) "Chest x-ray" means chest films that are taken in
accordance with all applicable state and federal regulatory
standards and in the posterior-anterior view.
(6) "Claimant" means an exposed person and any person
who is seeking recovery of damages for or arising from the injury or
death of an exposed person.
(7) "Defendant" means a person against whom a claim
arising from an asbestos-related injury or a silica-related injury
is made.
(8) "Exposed person" means a person who is alleged to
have suffered an asbestos-related injury or a silica-related
injury.
(9) "FEV1" means forced expiratory volume in the first
second, which is the maximal volume of air expelled in one second
during performance of simple spirometric tests.
(10) "FVC" means forced vital capacity, which is the
maximal volume of air expired with maximum effort from a position of
full inspiration.
(11) "ILO system of classification" means the
radiological rating system of the International Labor Office in
"Guidelines for the Use of ILO International Classification of
Radiographs of Pneumoconioses" (2000), as amended.
(12) "Mesothelioma" means a rare form of cancer
allegedly caused in some instances by exposure to asbestos in which
the cancer invades cells in the membrane lining:
(A) the lungs and chest cavity (the pleural
region);
(B) the abdominal cavity (the peritoneal
region); or
(C) the heart (the pericardial region).
(13) "Nonmalignant asbestos-related injury" means an
asbestos-related injury other than mesothelioma or some other form
of cancer.
(14) "Nonmalignant silica-related injury" means a
silica-related injury other than cancer.
(15) "Physician board certified in internal medicine"
means a physician who is certified by the American Board of Internal
Medicine or the American Osteopathic Board of Internal Medicine.
(16) "Physician board certified in occupational
medicine" means a physician who is certified in the subspecialty of
occupational medicine by the American Board of Preventive Medicine
or the American Osteopathic Board of Preventive Medicine.
(17) "Physician board certified in oncology" means a
physician who is certified in the subspecialty of medical oncology
by the American Board of Internal Medicine or the American
Osteopathic Board of Internal Medicine.
(18) "Physician board certified in pathology" means a
physician who holds primary certification in anatomic pathology or
clinical pathology from the American Board of Pathology or the
American Osteopathic Board of Internal Medicine and whose
professional practice:
(A) is principally in the field of pathology; and
(B) involves regular evaluation of pathology
materials obtained from surgical or postmortem specimens.
(19) "Physician board certified in pulmonary
medicine" means a physician who is certified in the subspecialty of
pulmonary medicine by the American Board of Internal Medicine or
the American Osteopathic Board of Internal Medicine.
(20) "Plethysmography" means the test for determining
lung volume, also known as "body plethysmography," in which the
subject of the test is enclosed in a chamber that is equipped to
measure pressure, flow, or volume change.
(21) "Pulmonary function testing" means spirometry
and lung volume testing performed in accordance with Section 90.002
using equipment, methods of calibration, and techniques that meet:
(A) the criteria incorporated in the American
Medical Association Guides to the Evaluation of Permanent
Impairment (5th ed. 2000) and reported in 20 C.F.R. Part 404,
Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)(2003);
and
(B) the interpretative standards in the Official
Statement of the American Thoracic Society entitled "Lung Function
Testing: Selection of Reference Values and Interpretative
Strategies," as published in 144 American Review of Respiratory
Disease 1202-1218 (1991).
(22) "Report" means a report required by Section
90.003 or 90.004.
(23) "Serve" means to serve notice on a party in
compliance with Rule 21a, Texas Rules of Civil Procedure.
(24) "Silica" means a respirable form of silicon
dioxide, including alpha quartz, cristobalite, and tridymite.
(25) "Silica-related injury" means personal injury or
death allegedly caused, in whole or in part, by inhalation of
silica.
(26) "Silicosis" means interstitial fibrosis of the
lungs caused by inhalation of silica.
Sec. 90.002. PULMONARY FUNCTION TESTING. Pulmonary
function testing required by this chapter must be performed under
the supervision of and interpreted by a physician:
(1) who is licensed in this state or another state of
the United States;
(2) who is board certified in pulmonary medicine; and
(3) whose license and certification were not on
inactive status at the time the testing was performed.
Sec. 90.003. REPORTS REQUIRED FOR CLAIMS INVOLVING
ASBESTOS-RELATED INJURY. (a) A claimant asserting an
asbestos-related injury must serve on each party the following
information:
(1) a report by a physician who is board certified in
pulmonary medicine, internal medicine, oncology, or pathology and
whose license and certification were not on inactive status at the
time the report was made stating that:
(A) the exposed person has been diagnosed with
mesothelioma or some other form of cancer; and
(B) to a reasonable degree of medical
probability, exposure to asbestos was a cause of the diagnosed
mesothelioma or other form of cancer in the exposed person; or
(2) a report by a physician who is board certified in
pulmonary medicine, internal medicine, or occupational medicine
and whose license and certification were not on inactive status at
the time the report was made that:
(A) verifies that the physician or a medical
professional employed by and under the direct supervision and
control of the physician:
(i) performed a physical examination of the
exposed person, or if the exposed person is deceased, reviewed
available records relating to the exposed person's medical
condition;
(ii) took a detailed occupational and
exposure history from the exposed person or, if the exposed person
is deceased, from the person most knowledgeable about the alleged
exposure or exposures that form the basis of the action; and
(iii) took a detailed medical and smoking
history that includes a thorough review of the exposed person's
past and present medical problems and their most probable cause;
(B) sets out the details of the exposed person's
occupational, medical, and smoking history and verifies that at
least 10 years have elapsed between the exposed person's first
exposure to asbestos and the date of diagnosis;
(C) verifies that the exposed person has:
(i) a quality 1 chest x-ray that has been
read by a certified B-reader according to the ILO system of
classification, except that in a death case where no pathology is
available, the necessary radiologic findings may be made with a
quality 2 film if a quality 1 film is not available, as showing
bilateral small irregular opacities (s, t, or u) graded 1/1 or
higher or bilateral diffuse pleural thickening graded B2 or higher
including blunting of the costophrenic angle; or
(ii) pathological asbestosis graded 1(B) or
higher under the criteria published in "Asbestos-Associated
Diseases," 106 Archives of Pathology and Laboratory Medicine 11,
Appendix 3 (October 8, 1982);
(D) verifies that the exposed person has
asbestos-related pulmonary impairment as demonstrated by pulmonary
function testing showing:
(i) forced vital capacity below the lower
limit of normal and FEV1/FVC ratio (using actual values) at or above
the lower limit of normal; or
(ii) total lung capacity, by
plethysmography or timed gas dilution, below the lower limit of
normal;
(E) verifies that the physician has concluded
that the exposed person's medical findings and impairment were not
more probably the result of causes other than asbestos exposure
revealed by the exposed person's employment and medical history;
and
(F) is accompanied by copies of all B-reading,
pulmonary function tests (including printouts of all data, flow
volume loops, and other information required to demonstrate
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter), lung volume tests,
x-ray examinations, pathology reports, or other testing reviewed by
the physician in reaching the physician's conclusions.
(b) The detailed occupational and exposure history required
by Subsection (a)(2)(A)(ii) must include all of the principal
employments and other exposures of the exposed person involving
exposures to airborne contaminants. It must indicate whether each
employment involved exposure to airborne contaminants, including
asbestos fibers and other disease-causing dusts, that can cause
pulmonary impairment and the nature, duration, and level of such
exposure.
(c) If the pulmonary function test results do not meet the
requirements of Subsection (a)(2)(D)(i) or (ii), a claimant may
serve on each party a report by a physician who is board certified
in pulmonary medicine, internal medicine, or occupational medicine
and whose license and certification are not on inactive status
that:
(1) verifies that the physician has a
physician-patient relationship with the exposed person;
(2) verifies that the exposed person has a quality 1
chest x-ray that has been read by a certified B-reader according to
the ILO system of classification, except that in a death case where
no pathology is available, the necessary radiologic findings may be
made with a quality 2 film if a quality 1 film is not available, as
showing bilateral small irregular opacities (s, t, or u) graded 2/1
or higher;
(3) verifies that the exposed person has restrictive
impairment from asbestosis and includes the specific pulmonary
function test findings on which the physician relies to establish
that the exposed person has restrictive impairment;
(4) verifies that the physician has concluded that the
exposed person's medical findings and impairment were not more
probably the result of causes other than asbestos exposure revealed
by the exposed person's employment and medical history; and
(5) is accompanied by copies of all B-reading,
pulmonary function tests (including printouts of all data, flow
volume loops, and other information required to demonstrate
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter), lung volume tests,
x-ray examinations, pathology reports or other testing reviewed by
the physician in reaching the physician's conclusions.
Sec. 90.004. REPORTS REQUIRED FOR CLAIMS INVOLVING
SILICA-RELATED INJURY. (a) A claimant asserting a silica-related
injury must serve on each party the following information:
(1) a report by a physician who is board certified in
pulmonary medicine, internal medicine, oncology, or pathology and
whose license and certification were not on inactive status at the
time the report was made stating that:
(A) the exposed person has been diagnosed with
silica-related lung cancer; and
(B) to a reasonable degree of medical
probability, exposure to silica was a cause of the diagnosed lung
cancer; or
(2) a report by a physician who is board certified in
pulmonary medicine, internal medicine, pathology, or occupational
medicine and whose license and certification were not on inactive
status at the time the report was made that:
(A) verifies that the physician or a medical
professional employed by and under the direct supervision and
control of the physician:
(i) performed a physical examination of the
exposed person, or if the exposed person is deceased, reviewed
available records relating to the exposed person's medical
condition;
(ii) took a detailed occupational and
exposure history from the exposed person or, if the exposed person
is deceased, from the person most knowledgeable about the alleged
exposure or exposures that form the basis of the action; and
(iii) took a detailed medical and smoking
history that includes a thorough review of the exposed person's
past and present medical problems and their most probable cause;
(B) sets out the details of the exposed person's
occupational, medical, and smoking history, and verifies that there
has been a sufficient latency period for the applicable type of
silica-related disease;
(C) verifies that the exposed person has a Class
2 or higher impairment due to silica-related disease, according to
the American Medical Association Guides to the Evaluation of
Permanent Impairment (5th ed. 2000) and reported as set forth in 20
C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E)
and (F)(2003) and:
(i) a diagnosis of silica-related
progressive massive fibrosis, acute silicoproteinosis, or
silicosis complicated by documented tuberculosis;
(ii) a quality 1 chest x-ray that has been
read by a certified B-reader according to the ILO system of
classification, except that in a death case where no pathology is
available, the necessary radiologic findings may be made with a
quality 2 film if a quality 1 film is not available, as showing
bilateral nodular opacities (p, q, or r) occurring primarily in the
upper lung fields, graded 1/1 or higher; or
(iii) pathological demonstration of
classic silicotic nodules exceeding one centimeter in diameter as
published in "Diseases Associated with Exposure to Silica and
Nonfibrous Silica Materials," 112 Archives of Pathology and
Laboratory Medicine 7 (July 1988);
(D) verifies that the physician has concluded
that the exposed person's medical findings and impairment were not
more probably the result of causes other than silica exposure
revealed by the exposed person's employment and medical history;
and
(E) is accompanied by copies of all B-reading,
pulmonary function tests (including printouts of all data, flow
volume loops, and other information required to demonstrate
compliance with the equipment, quality, interpretation, and
reporting standards set out in this chapter), lung volume tests,
x-ray examinations, pathology reports, or other testing reviewed by
the physician in reaching the physician's conclusions.
(b) The detailed occupational and exposure history required
by Subsection (a)(2)(A)(ii) must include all of the principal
employments and other exposures of the exposed person involving
exposures to airborne contaminants. It must indicate whether each
employment involved exposure to airborne contaminants, including
silica fibers and other disease-causing dusts, that can cause
pulmonary impairment and the nature, duration, and level of such
exposure. All such reports must meet objective criteria for
generally accepted medical standards related to exposure to silica
fibers.
Sec. 90.005. PROHIBITED BASIS FOR DIAGNOSIS. (a) For
purposes of this chapter, a physician may not, as the basis for a
diagnosis, rely on the reports or opinions of any doctor, clinic,
laboratory, or testing company that performed an examination, test,
or screening of the exposed person's medical condition in violation
of any law, regulation, licensing requirement, or medical code of
practice of the state in which the examination, test, or screening
was conducted.
(b) If a physician relies on any information in violation of
Subsection (a), the physician's opinion or report does not comply
with the requirements of this chapter.
Sec. 90.006. SERVING REPORTS. (a) Except as provided by
Subsections (b) and (c), in a case filed on or after the date this
chapter becomes law, a report prescribed by Section 90.003 or
90.004 must be served on each party not later than the 30th day
after the date that party answers or otherwise enters an appearance
in the action.
(b) In a case pending on the date this chapter becomes law
and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences on or before the 90th day
after the date this chapter becomes law, a claimant is not required
to serve a report on any party unless a mistrial, new trial, or
retrial is subsequently granted or ordered.
(c) In a case pending on the date this chapter becomes law
and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, commences after the 90th day after
the date this chapter becomes law, a report must be served on all
parties on or before the earlier of the following dates:
(1) the 60th day before trial commences; or
(2) the 180th day after the date this chapter becomes
law.
Sec. 90.007. MOTION TO DISMISS. (a) If a claimant fails to
timely serve a report on a defendant, or serves on the defendant a
report that does not comply with the requirements of Section 90.003
or 90.004, the defendant may file a motion to dismiss the claimant's
asbestos-related claims or silica-related claims, as applicable.
The motion must be filed on or before the 30th day after the date the
report is served on the defendant. If a claimant fails to serve a
report on the defendant, the motion must be filed on or before the
date the report was required to be served on the defendant under
Section 90.006. If the basis of the motion is that the claimant has
served on the defendant a report that does not comply with the
requirements of this chapter, the motion must include the reasons
why the report does not comply with this chapter.
(b) A claimant may file a response to a motion to dismiss on
or before the 15th day after the date the motion to dismiss is
served. A report required by Section 90.003 or 90.004 may be filed,
amended, or supplemented within the time required for responding to
a motion to dismiss. The service of an amended or supplemental
report does not require the filing of an additional motion to
dismiss if the reasons stated in the original motion to dismiss are
sufficient to require dismissal under this chapter.
(c) If the trial court is of the opinion that a motion to
dismiss is meritorious, the court shall, by written order, grant
the motion and dismiss all of the claimant's asbestos-related
claims or silica-related claims against the defendant. A dismissal
under this section is without prejudice to the claimant's right, if
any, to assert claims for an asbestos-related injury or a
silica-related injury in a subsequent action.
(d) On the filing of a motion to dismiss under this section,
all further proceedings in the case are stayed until the motion is
heard and determined by the trial court.
(e) On the motion of a party showing good cause, the trial
court may shorten or extend the time limits provided in this section
for filing or serving motions, responses, or reports.
Sec. 90.008. VOLUNTARY DISMISSAL. Before serving a report
required by Section 90.003 or 90.004, a claimant seeking damages
arising from an asbestos-related injury or silica-related injury
may voluntarily dismiss the claimant's action. If a claimant files
a voluntary dismissal under this section, the claimant's voluntary
dismissal is without prejudice to the claimant's right to file a
subsequent action seeking damages arising from an asbestos-related
injury or a silica-related injury.
Sec. 90.009. JOINDER OF CLAIMANTS. Unless all parties
agree otherwise, claims relating to more than one exposed person
may not be joined for a single trial.
Sec. 90.010. SUPREME COURT RULEMAKING. The supreme court
may promulgate amendments to the Texas Rules of Civil Procedure
regarding the joinder of claimants in asbestos-related actions or
silica-related actions if the rules are consistent with Section
90.009.
SECTION 3. Section 16.003(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) Except as provided by Sections 16.010, 16.0031, and
16.0045, a person must bring suit for trespass for injury to the
estate or to the property of another, conversion of personal
property, taking or detaining the personal property of another,
personal injury, forcible entry and detainer, and forcible detainer
not later than two years after the day the cause of action accrues.
SECTION 4. Subchapter A, Chapter 16, Civil Practice and
Remedies Code, is amended by adding Section 16.0031 to read as
follows:
Sec. 16.0031. ASBESTOS-RELATED OR SILICA-RELATED INJURIES.
(a) In an action for personal injury or death resulting from an
asbestos-related injury, as defined by Section 90.001, the cause of
action accrues for purposes of Section 16.003 on the earlier of the
following dates:
(1) the date of the exposed person's death; or
(2) the date that the claimant serves a report
complying with Section 90.003.
(b) In an action for personal injury or death resulting from
a silica-related injury, as defined by Section 90.001, the cause of
action accrues for purposes of Section 16.003 on the earlier of the
following dates:
(1) the date of the exposed person's death; or
(2) the date that the claimant serves a report
complying with Section 90.004.
SECTION 5. Section 51.014(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) A person may appeal from an interlocutory order of a
district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that
appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit
brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants
or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;
(5) denies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
I, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except
in a suit brought under the Family Code;
(8) grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001;
(9) denies all or part of the relief sought by a motion
under Section 74.351(b), except that an appeal may not be taken from
an order granting an extension under Section 74.351; [or]
(10) grants relief sought by a motion under Section
74.351(l); or
(11) denies a motion to dismiss filed under Section
90.007.
SECTION 6. Section 22.225(d), Government Code, is amended
to read as follows:
(d) A petition for review is allowed to the supreme court
for an appeal from an interlocutory order described by Section
51.014(a)(3), [or] (6), or (11), Civil Practice and Remedies Code.
SECTION 7. Subchapter E, Chapter 21, Insurance Code, is
amended by adding Article 21.53X to read as follows:
Art. 21.53X. PROHIBITED PRACTICES RELATED TO EXPOSURE TO
ASBESTOS OR SILICA. (a) In this article, "health benefit plan"
means a plan that provides benefits for medical, surgical, or other
treatment expenses incurred as a result of a health condition, a
mental health condition, an accident, sickness, or substance abuse,
including an individual, group, blanket, or franchise insurance
policy or insurance agreement, a group hospital service contract,
or an individual or group evidence of coverage or similar coverage
document. The term includes:
(1) a small employer health benefit plan or a health
benefit plan written to provide coverage with a cooperative under
Chapter 26 of this code;
(2) a standard health benefit plan offered under
Article 3.80 of this code or Section 9N, Texas Health Maintenance
Organization Act (Article 20A.9N, Vernon's Texas Insurance Code);
and
(3) a health benefit plan offered under Chapter 1551,
1575, 1579, or 1601 of this code.
(b) This article applies to any entity that offers a health
benefit plan or an annuity or life insurance policy or contract in
this state, including:
(1) a stock or mutual life, health, or accident
insurance company;
(2) a group hospital service corporation operating
under Chapter 842 of this code;
(3) a fraternal benefit society operating under
Chapter 885 of this code;
(4) a stipulated premium insurance company operating
under Chapter 884 of this code;
(5) a Lloyd's plan operating under Chapter 941 of this
code;
(6) an exchange operating under Chapter 942 of this
code;
(7) a health maintenance organization operating under
Chapter 843 of this code;
(8) a multiple employer welfare arrangement that holds
a certificate of authority under Chapter 846 of this code;
(9) an approved nonprofit health corporation that
holds a certificate of authority under Chapter 844 of this code;
(10) a statewide mutual assessment company operating
under Chapter 881 of this code;
(11) a local mutual aid association operating under
Chapter 886 of this code; and
(12) a local mutual burial association operating under
Chapter 888 of this code.
(c) An entity that offers a health benefit plan or an
annuity or life insurance policy or contract may not use the fact
that a person has been exposed to asbestos fibers or silica or has
filed a claim governed by Chapter 90, Civil Practice and Remedies
Code, to reject, deny, limit, cancel, refuse to renew, increase the
premiums for, or otherwise adversely affect the person's
eligibility for or coverage under the health benefit plan.
SECTION 8. (a) The rules adopted by the supreme court under
Subchapter H, Chapter 74, Government Code, apply to any cause of
action alleging exposure to asbestos or silica or brought under
Chapter 90, Civil Practice and Remedies Code, as added by this Act,
that is commenced or pending on or after the effective date of this
Act, and in which the trial, or any new trial or retrial following
motion, appeal, or otherwise, begins on or after the effective date
of this Act.
(b) Sections 90.009 and 16.0031, Civil Practice and
Remedies Code, as added by this Act, apply to an action commenced on
or after the effective date of this Act or pending on the effective
date of this Act and in which the trial, or any new trial or retrial
following motion, appeal, or otherwise, is not in progress on or
after the effective date of this Act. In an action commenced before
the effective date of this Act, a trial, new trial, or retrial that
is in progress on the effective date of this Act is governed by the
law applicable to the action immediately before the effective date
of this Act, and that law is continued in effect for that purpose.
(c) Except as provided by a contract entered into before the
effective date of this Act, Article 21.53X, Insurance Code, as
added by this Act, applies to a health benefit plan, health
insurance policy, or health insurance contract delivered, issued
for delivery, or renewed before, on, or after the effective date of
this Act.
SECTION 9. 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, 2005.