By: Miller of Comal H.B. No. 1492

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. 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, claims agent, 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 originally set for trial in an action asserting an asbestos- or silica-related injury.

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

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

(A) documentation that a claimant submits or provides to an asbestos or silica trust that seeks compensation or demonstrates the existence of an asbestos- or silica-related injury or a trust claim that the claimant may have against the asbestos or silica trust; and

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

Sec. 90.052. NOTICE OF TRUST CLAIMS. (a) A claimant asserting 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 include a statement by the claimant that identifies each pending trust claim and states the date the claim was made and whether a request for a deferral, delay, suspension, or tolling of the claim has been submitted. The notice shall include an attestation by the claimant's attorney, made under the penalty of perjury, that the notice is complete and based on the attorney's good faith investigation of all potential trust claims.

(b) In an action pending on September 1, 2015, in which discovery was commenced before that date, the claimant shall serve the notice and trust claim material required by Subsection (a) not later than October 1, 2015.

(c) In an action filed on or after September 1, 2015, or an action pending on September 1, 2015, in which discovery was not commenced before that date, the claimant shall serve the notice and trust claim material required by Subsection (a) not later than the 120th day before the date the action is originally set for trial.

(d) The notice and disclosures required by this section are in addition to any notice or disclosure required by other law, rule, order, or applicable agreement.

Sec. 90.053. ADDITIONAL TRUST CLAIMS NOTICE. (a) A claimant shall serve notice of and trust claim material relating to a trust claim made after the claimant serves notice of and trust claim material under Section 90.052. The claimant shall serve the additional notice and trust claim material on all parties not later than the 30th day after the date the additional trust claim is made.

(b) The notice required by Subsection (a) must include a sworn statement providing information on the additional trust claims as prescribed by Section 90.052.

Sec. 90.054. NOTICE OF CANCER- AND NON-CANCER-RELATED TRUST CLAIMS REQUIRED. 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. 90.055. FAILURE TO PROVIDE NOTICE. (a) An MDL pretrial court shall decline to remand an action to a trial court if the claimant fails to provide notice and trust claim material in accordance with this subchapter.

(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 and the claimant failed to provide notice of and trust claim material relating to the relevant trust claim in accordance with this subchapter, 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 vacating the judgment and ordering a new trial.

Sec. 90.056. MOTION TO STAY. (a) A defendant may file a motion to stay the proceedings under Section 90.058 not later than the 45th day before the date originally set for trial. The motion 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).

(b) Notwithstanding any other provision of this subchapter, a defendant may file a motion to stay the proceedings as described by this section not later than the seventh day after the date the defendant receives notice of asbestos or silica exposure information that may support an additional asbestos or silica trust claim.

Sec. 90.057. RESPONSE TO MOTION TO STAY. (a) Not later than the 14th day after the date the defendant files a motion under Section 90.056, 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 notice of and trust material relating to the claim as prescribed by Section 90.052(a); 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)(B), 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 reasonably anticipated recovery, the claimant 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. 90.058. STAY OF PROCEEDINGS. (a) The court shall grant a motion under Section 90.056 if the court determines there is a good faith basis to make a trust claim 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 90.052(a).

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

(1) the claimant provides the proof described by Section 90.057(a)(1); or

(2) the court makes a determination described by Section 90.057(b).

Sec. 90.059. 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 not to be privileged.

(c) A party may use the trust claim material to prove:

(1) an alternate source for the cause of the exposed person's injury, death, or loss;

(2) a basis to allocate responsibility for the exposed person's injury, death, or loss; or

(3) any other issue relevant to adjudication of a claim asserted in the action.

Sec. 90.060. MODIFICATION OF JUDGMENT BASED ON SUBSEQUENT TRUST CLAIM. (a) Subject to Subsection (c), a trial court, on a defendant's or judgment debtor's motion and after reasonable notice to the parties, may:

(1) modify the judgment by the amount of a subsequent payment by an asbestos or silica trust to the claimant based on:

(A) a trust claim relating to which notice and trust claim material was not provided to the defendant or judgment debtor in accordance with Section 90.052; or

(B) a trust claim made after the judgment to an asbestos or silica trust that existed at the time of the judgment; or

(2) order other relief that the court considers just and proper in connection with the payment.

(b) A defendant or judgment debtor must file a motion under this section in a reasonable time after the claimant receives a payment from a related asbestos or silica trust, but not later than the third anniversary of the date the judgment is signed.

(c) If a motion under this section is filed after the period that the trial court may otherwise modify a judgment, the trial court may modify the judgment in a manner consistent with this section on or before the 30th day after the date the motion is filed.

(d) Notwithstanding Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict with this section.

SECTION 3. 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 4. This Act takes effect September 1, 2015.