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79R1183 AJA-F

By:  Van de Putte, Fraser                                         S.B. No. 236


A BILL TO BE ENTITLED
AN ACT
relating to liability for certain unfair methods of competition or deceptive acts or practices in the business of insurance. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 541.002, Insurance Code, as effective April 1, 2005, is amended to read as follows: Sec. 541.002. DEFINITIONS. In this chapter: (1) "Economic damages" means compensatory damages for pecuniary loss, including costs of repair and replacement. The term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society. (2) "Intentionally" means actual awareness of the falsity, unfairness, or deceptiveness of the act or practice on which a claim for damages under Subchapter D is based, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception or in detrimental ignorance of the unfairness. Intention may be inferred from objective manifestations that indicate that the person acted intentionally or from facts showing that a defendant acted with flagrant disregard of prudent and fair business practices to the extent that the defendant should be treated as having acted intentionally. (3) "Knowingly" means actual awareness of the falsity, unfairness, or deceptiveness of the act or practice on which a claim for damages under Subchapter D is based. Actual awareness may be inferred if objective manifestations indicate that a person acted with actual awareness. (4) [(2)] "Person" means an individual, corporation, association, partnership, reciprocal or interinsurance exchange, Lloyd's plan, fraternal benefit society, or other legal entity engaged in the business of insurance, including an agent, broker, adjuster, or life and health insurance counselor. (5) "Residence" means a building: (A) that is a single-family house, duplex, triplex, or quadruplex, or a unit in a multiunit residential structure in which title to the individual units is transferred to the owners under a condominium or cooperative system; and (B) that is occupied or to be occupied as the person's residence. (6) "Unconscionable action or course of action" means an act or practice which, to a person's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the person to a grossly unfair degree. SECTION 2. Section 541.151, Insurance Code, as effective April 1, 2005, is amended to read as follows: Sec. 541.151. PRIVATE ACTION FOR DAMAGES AUTHORIZED. (a) Except as provided by Subsections (b) and (c), a [A] person who sustains actual damages may bring an action against another person for those damages caused by the other person engaging in an act or practice: (1) defined by Subchapter B to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance; or (2) specifically enumerated in Section 17.46(b), Business and Commerce Code, as an unlawful deceptive trade practice if the person bringing the action shows that the person relied on the act or practice to the person's detriment. (b) A person may not bring an action under this section against another person, or an entity that could be vicariously liable for the other person's conduct, for damages caused by the other person's provision of a professional service, the essence of which is the provision of advice, judgment, opinion, or a similar professional skill. This subsection does not apply to a claim for damages caused by: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose a matter in violation of Section 541.061(5); (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; (4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or (5) a violation of Section 17.46(b)(26), Business & Commerce Code. (c) A person may not bring an action under this section against another person for a claim arising out of: (1) an insurance policy or other written contract if: (A) the contract relates to a transaction, a project, or a set of transactions related to a single project, involving total consideration by the person of more than $100,000; (B) in negotiating the contract the person is represented by legal counsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and (C) the contract does not involve the person's residence; or (2) a transaction, project, or set of transactions relating to the same project, involving total consideration by the person of more than $500,000, other than a cause of action involving a person's residence. SECTION 3. Section 541.152, Insurance Code, as effective April 1, 2005, is amended to read as follows: Sec. 541.152. DAMAGES, ATTORNEY'S FEES, AND OTHER RELIEF. (a) A plaintiff who prevails in an action under this subchapter may obtain: (1) the amount of economic damages determined by the trier of fact [actual damages,] plus court costs and reasonable and necessary attorney's fees; (2) an order enjoining the act or failure to act complained of; and [or] (3) any other relief the court determines is proper. (b) If [On a finding by] the trier of fact determines that the defendant's [defendant] conduct was committed knowingly [committed the act complained of], the trier of fact may award: (1) the amount of damages for mental anguish determined by the trier of fact; and (2) an amount that does not [to] exceed three times the amount of economic [actual] damages determined by the trier of fact. (c) If the trier of fact determines that the defendant's conduct was committed intentionally, the trier of fact may award: (1) the amount of damages for mental anguish determined by the trier of fact; and (2) an amount that does not exceed three times the amount of economic damages and damages for mental anguish determined by the trier of fact. SECTION 4. Section 33.002(a), Civil Practice and Remedies Code, is amended to read as follows: (a) This chapter applies to: (1) any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought; [or] (2) any action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought; or (3) any action brought under Subchapter D, Chapter 541, Insurance Code, in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which the relief is sought. SECTION 5. The changes in law made by this Act apply only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose. SECTION 6. 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.