By: Miller of Comal, Keffer, Phillips, H.B. No. 1492

Clardy, Sheets, et al.

A BILL TO BE ENTITLED

AN ACT

relating to consideration of asbestos or silica trust claims in certain actions asserting asbestos- or silica-related injuries.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 90, Civil Practice and Remedies Code, is amended by designating Sections 90.001 through 90.012 as Subchapter A and adding a subchapter heading to read as follows:

SUBCHAPTER A. GENERAL PROVISIONS

SECTION 2. Section 90.010(d-1), Civil Practice and Remedies Code, is amended to read as follows:

(d-1) Beginning on September 1, 2014, the MDL pretrial court shall dismiss each action for an asbestos-related injury or a silica-related injury that was pending on August 31, 2005, unless a report was served on or after September 1, 2013, that complies with Section 90.003, Section 90.004, or Subsection (f). The MDL pretrial court shall provide for the dismissal of such actions in a case management order entered for that purpose. All [such] actions for a silica-related injury shall be dismissed on or before August 31, 2015. All actions for an asbestos-related injury shall be dismissed on or before December 31, 2015.

SECTION 3. Chapter 90, Civil Practice and Remedies Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. ASBESTOS OR SILICA TRUST CLAIMS

Sec. 90.051. DEFINITIONS. In this subchapter:

(1) "Asbestos or silica trust" means a claims facility, a claims agent, a qualified settlement fund, or any other entity that:

(A) is created under 11 U.S.C. Section 524(g) or another applicable law for the benefit of creditors of a bankrupt person;

(B) is formed for the purpose of compensating claimants for asbestos- or silica-related injuries; and

(C) is in existence on the date trial in an action asserting an asbestos- or silica-related injury is set to commence.

(2) "Trust claim" means any filing with or claim against an asbestos or silica trust seeking recovery of compensation or damages for or arising from the asbestos- or silica-related injury of an exposed person.

(3) "Trust claim material" means documentation filed as part of or in connection with a trust claim, including:

(A) documentation that a claimant submits or provides to an asbestos or silica trust for the purpose of demonstrating asbestos or silica exposure, the existence of an asbestos- or silica-related injury, or the validity of a trust claim; and

(B) claim forms and other materials that an asbestos or silica trust requires a claimant to submit.

Sec. 90.052. REQUIREMENT TO MAKE TRUST CLAIMS. (a) Except as provided by Subsection (d), a claimant who has filed an action to recover damages for or arising from an asbestos- or silica-related injury shall make a trust claim against each asbestos or silica trust the claimant believes may owe compensation or damages to the claimant for the injury that is the basis of the claimant's action.

(b) A claimant must make each trust claim required under this section not later than:

(1) the 150th day before the date trial in the action is set to commence; or

(2) a date provided by court order if trial is set to commence on or before January 31, 2016.

(c) A claimant may file a motion seeking relief from the obligation to make a trust claim otherwise required by this section if the claimant believes that the fees and expenses, including attorney's fees, for filing the trust claim exceed the claimant's reasonably anticipated recovery from the trust.

(d) If a claimant files a motion under Subsection (c), the court shall determine whether the claimant's fees and expenses, including attorney's fees, for making the trust claim exceed the claimant's reasonably anticipated recovery from the trust. If the court determines that the claimant's fees and expenses exceed the claimant's reasonably anticipated recovery, the claimant is not required to make the trust claim but shall provide the court with a verified statement of the exposed person's exposure history to asbestos or silica that is covered by the trust.

Sec. 90.053. NOTICE OF TRUST CLAIM; PRODUCTION OF TRUST CLAIM MATERIAL. (a) A claimant in an action to recover damages for or arising from an asbestos- or silica-related injury shall serve on each party notice of, and trust claim material relating to, each trust claim made by or on behalf of the exposed person. The notice must:

(1) identify each trust claim made by or on behalf of the exposed person;

(2) state the amount of any trust claim payment made to compensate for the exposed person's injury; and

(3) state the date each trust claim was made and whether a request for individual or enhanced review or for a deferral, delay, suspension, or tolling of the claim has been submitted to the trust.

(b) The claimant shall serve the notice and trust claim materials required by Subsection (a) not later than:

(1) the 120th day before the date trial in the action is set to commence; or

(2) a date provided by court order if the court entered an order under Section 90.052(b).

(c) The notice and trust claim materials required to be served under Subsection (a) are in addition to any notice or materials required to be served or produced under other law, rule, order, or applicable agreement.

(d) If a claimant makes a trust claim after the date provided by Section 90.052(b) but before the date that trial in the action commences, the claimant shall serve the notice of, and trust claim material relating to, the trust claim as required by Subsection (a) reasonably promptly after making the trust claim, but not later than the earlier of:

(1) the date that trial commences; or

(2) the 15th day after the date the additional trust claim is made.

(e) If a claimant discovers that the notice or trust claim materials provided by the claimant under this section were incomplete or incorrect at the time the notice or trust claim materials were served or that the notice or trust claim materials as served are no longer complete and correct, the claimant shall supplement the notice and the production of trust claim materials. The claimant shall serve the supplemental notice or trust claim materials reasonably promptly after the claimant discovers the necessity for the supplementation, but not later than the 15th day after the date the claimant discovers the necessity for the supplementation.

(f) A claimant shall serve notice of, and trust claim material relating to, a trust claim regardless of whether the claim is for an injury resulting in cancer or an injury not resulting in cancer.

Sec. 90.054. FAILURE TO MAKE TRUST CLAIM OR PROVIDE NOTICE AND TRUST CLAIM MATERIAL. (a) An MDL pretrial court may not remand an action to a trial court and a trial court may not commence trial in the action unless the claimant has:

(1) made each trust claim as required by this subchapter; and

(2) served the notice of, and trust claim material relating to, those trust claims in accordance with Section 90.053.

(b) If a claimant received compensation from an asbestos or silica trust for an injury that also gave rise to a judgment against a defendant for the same injury and the claimant failed to serve the relevant notice and trust claim material as required by Section 90.053, the trial court, on a defendant's or judgment debtor's motion and after reasonable notice to the parties, may impose an appropriate sanction, including setting aside the judgment and ordering a new trial.

(c) This section may not be construed to require payment of a trust claim by an asbestos or silica trust before the MDL pretrial court remands the action for trial or before a judgment is rendered in the action.

Sec. 90.055. MOTION TO STAY. (a) A defendant may file a motion requesting a stay of the proceedings under Section 90.057 on or before the later of:

(1) the 60th day before the date trial in the action is set to commence;

(2) the 15th day after the date the defendant first obtains asbestos- or silica-exposure information that could support an additional asbestos or silica trust claim by the claimant; or

(3) a date provided by court order if the court entered an order under Section 90.052(b).

(b) The motion described by Subsection (a) must include:

(1) a list of asbestos or silica trusts not disclosed by the claimant against which the defendant in good faith believes the claimant may make a successful trust claim; and

(2) information supporting the additional trust claim described by Subdivision (1), including information that may be used to meet the trust claim requirements of an asbestos or silica trust described by Subdivision (1).

Sec. 90.056. RESPONSE TO MOTION TO STAY. (a) Not later than the 14th day after the date the defendant files a motion to stay under Section 90.055 or the date provided by court order under Section 90.052(b), the claimant may file a response:

(1) stating and providing proof that the claimant has made a trust claim identified in the defendant's motion and served the notice of, and trust claim material relating to, the claim as prescribed by Section 90.053; or

(2) requesting a determination by the court that the fees and expenses, including attorney's fees, for filing a trust claim identified in the motion exceed the claimant's reasonably anticipated recovery from the trust.

(b) If the claimant files a response making a request under Subsection (a)(2), the court shall determine whether the claimant's fees and expenses, including attorney's fees, for making the relevant trust claim exceed the claimant's reasonably anticipated recovery from the trust. If the court determines that the claimant's fees and expenses exceed the claimant's reasonably anticipated recovery, the claimant is not required to make the trust claim but shall provide the court with a verified statement of the exposed person's exposure history to asbestos or silica that is covered by the trust.

Sec. 90.057. STAY OF PROCEEDINGS. (a) The court shall grant a motion to stay under Section 90.055 if the court determines the motion was timely filed and the claimant is likely to receive compensation from a trust identified by the motion. The stay shall continue until the claimant provides proof that the claimant has made the claim and served notice of, and trust claim material relating to, the claim as prescribed by Section 90.053.

(b) The court may not stay the proceedings if, with respect to each trust claim identified in the motion:

(1) the court determines that the claimant has satisfied the requirements of Section 90.053(a); or

(2) the court makes a determination described by Section 90.052(d) or 90.056(b).

Sec. 90.058. EVIDENCE OF TRUST CLAIMS. (a) Trust claim material is presumed to be authentic, relevant, and discoverable in an action to which this subchapter applies.

(b) Notwithstanding an agreement, including a confidentiality agreement, trust claim material is presumed to not be privileged in an action to which this subchapter applies.

(c) This section may not be construed to affect the application of Section 33.003 to an action governed by this chapter.

SECTION 4. Subchapter B, Chapter 90, Civil Practice and Remedies Code, as added by this Act, applies to an action:

(1) commenced on or after the effective date of this Act; or

(2) pending on the effective date of this Act.

SECTION 5. This Act takes effect September 1, 2015.