|
ANALYSIS
C.S.H.B. 1774 amends the Insurance
Code to establish requirements and procedures applicable to an action on a
claim against any insurer, defined to be a corporation, association,
partnership, or individual, other than the Texas Windstorm Insurance
Association (TWIA), engaged as a principal in the business of insurance and
authorized or eligible to write property insurance in Texas, or agent,
defined to be an employee, agent, representative, or adjuster who performs
any act on behalf of an insurer,. The bill is expressly inapplicable to an
action against TWIA or to an action relating to or arising from a policy
ceded to an insurer by TWIA under the depopulation program provisions of the
Texas Windstorm Insurance Association Act which are governed by the Texas
Windstorm Insurance Association Act. The bill defines, among other terms,
"claim" as a first-party claim that is made by an insured under an
insurance policy providing coverage for real property or improvements to real
property, that must be paid by the insurer directly to the insured, and that
arises from damage to or loss of covered property caused, wholly or partly,
by forces of nature.
C.S.H.B. 1774 requires a
claimant, not later than the 61st day before the date the claimant files the action
in which the claimant seeks damages from any person, to give written notice
to the person as a prerequisite to filing the action. Such notice is in
addition to any other notice required by law or the applicable insurance
policy. The bill requires the written notice to provide a statement of the
acts or omissions giving rise to the claim; the specific amount alleged to be
owed by the insurer on the claim for damage to or loss of covered property;
and the amount of reasonable and necessary attorney's fees incurred by the
claimant as of the date of the notice. The bill provides the method for calculation
of such attorney's fees and requires an attorney or other representative who
gives the required notice on behalf of a claimant to provide a copy of the
notice to the claimant and to include in the notice a statement that a copy
of the notice was provided to the claimant. The bill establishes that a
presuit notice is not required if giving notice is impracticable because the
claimant has a reasonable basis for believing there is insufficient time to give
the presuit notice before the limitations period will expire or the action is
asserted as a counterclaim. The bill requires a court, to ensure that a
claimant is not prejudiced by having given the required presuit notice, to
dismiss without prejudice an action relating to the claim for which notice is
given by the claimant and commenced before the 61st day after the date the
claimant provides presuit notice, by a person to whom presuit notice is
given, and against the claimant giving the notice. A claimant who gives
notice in accordance with the bill's provisions is not relieved of the
obligation to give notice under any other applicable law and that notice
given under the bill's provisions may be combined with notice given under any
other law. The bill makes notice given under the bill's provisions admissible
in evidence in a civil action or alternative dispute resolution proceeding
relating to the claim for which the notice is given. The bill establishes
that the giving of such notice does not provide a basis for limiting the
evidence of attorney's fees, damage, or loss a claimant may offer at trial. The
bill authorizes a person who receives such notice to make a settlement offer
during a period beginning on the date the notice is received and ending on
the 60th day after that date. The bill authorizes a person to whom such notice
is given to send a written request to the claimant to inspect, photograph, or
evaluate, in a reasonable manner and at a reasonable time, the property that
is the subject of the claim.
|
|
INTRODUCED
|
HOUSE COMMITTEE
SUBSTITUTE
|
|
SECTION 1. Section 17.50(a),
Business & Commerce Code, is amended to read as follows:
(a) A consumer may maintain
an action where any of the following constitute a producing cause of
economic damages or damages for mental anguish:
(1) the use or employment by
any person of a false, misleading, or deceptive act or practice that is:
(A) specifically enumerated
in a subdivision of Subsection (b) of Section 17.46 of this subchapter; and
(B) relied on by a consumer
to the consumer's detriment;
(2) breach of an express or
implied warranty;
(3) any unconscionable action
or course of action by any person; or
(4) except as provided by
Section 541.151, Insurance Code, the use or employment by any person of
an act or practice in violation of Chapter 541, Insurance Code.
|
No
equivalent provision.
|
|
SECTION 2. Section 541.151,
Insurance Code, is amended to read as follows:
Sec. 541.151. PRIVATE ACTION
FOR DAMAGES AUTHORIZED. (a) Except as provided by Subsection (b), 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 & 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 who brings an
action against another person under this section for an act or practice in
violation of Section 541.060 or 541.061 may not bring an action against
that other person under Subchapter E, Chapter 17, Business & Commerce
Code, that is related to the same claim.
|
No
equivalent provision.
|
|
SECTION 3. Section 541.156(a),
Insurance Code, is amended.
|
SECTION 1. Same as introduced
version.
|
|
SECTION 4. The heading to
Section 542.060, Insurance Code, is amended to read as follows:
Sec. 542.060. LIABILITY FOR DELAY
IN PAYMENT [VIOLATION OF SUBCHAPTER].
|
No
equivalent provision.
|
|
SECTION 5. Section 542.060,
Insurance Code, is amended by amending Subsection (a) and adding Subsection
(c) to read as follows:
(a) If an insurer that is
liable for a claim under an insurance policy delays payment of the claim in violation of Section 542.058 [is not in compliance with this subchapter],
the insurer is liable to pay the holder of the policy or the beneficiary
making the claim under the policy, in addition to the amount of the claim,
interest on the amount of the claim as
damages at the rate described
by Subsection (c) [of 18
percent a year as damages], together with reasonable and
necessary attorney's fees.
|
SECTION 2. Section 542.060,
Insurance Code, is amended by amending Subsection (a) and adding Subsection
(c) to read as follows:
(a) Except as provided by Subsection (c),
if [If] an insurer that is liable for a claim under an insurance
policy is not in compliance with this
subchapter, the insurer is liable to pay the holder of the policy or
the beneficiary making the claim under the policy, in addition to the
amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages,
together with reasonable and necessary attorney's fees. Nothing in this subsection prevents the award
of prejudgment interest on the amount of the claim, as provided by law.
|
|
(c) Interest awarded under
Subsection (a) accrues beginning on the date the claim was required to be
paid, and the interest rate applied is determined by adding three percent
to the interest rate determined under Section 304.003, Finance Code.
No
equivalent provision. (But see Subsection (c) above.)
|
No
equivalent provision. (But see Subsection (c) below.)
(c) In an action to which
Chapter 542A applies, if an insurer that is liable for a claim under an
insurance policy is not in compliance with this subchapter, the insurer is
liable to pay the holder of the policy, in
addition to the amount of the claim, simple interest on the amount
of the claim as damages each year at the rate determined on the date of
judgment by adding five percent to the interest rate determined under
Section 304.003, Finance Code, together with reasonable and necessary
attorney's fees. Nothing in this subsection prevents the award of
prejudgment interest on the amount of the claim, as provided by law. Interest
awarded under this subsection as damages accrues beginning on the date the
claim was required to be paid.
|
|
SECTION 6. Subtitle C, Title
5, Insurance Code, is amended by adding Chapter 542A to read as follows:
CHAPTER 542A. CERTAIN
CONSUMER ACTIONS RELATED TO CLAIMS FOR PROPERTY DAMAGE
Sec. 542A.001. DEFINITIONS.
In this chapter:
(1) "Agent"
means an employee, agent, representative, or adjuster who performs any act
on behalf of an insurer.
(2) "Claim"
means a first-party claim that:
(A) is made by an insured or policyholder under an insurance
policy or contract; and
(B) must be paid by the
insurer directly to the insured.
(3) "Claimant"
means a person making a claim.
No
equivalent provision, but see Sec. 542A.002(b) below
No
equivalent provision.
|
SECTION 3. Subtitle C, Title
5, Insurance Code, is amended by adding Chapter 542A to read as follows:
CHAPTER 542A. CERTAIN
CONSUMER ACTIONS RELATED TO CLAIMS FOR PROPERTY DAMAGE
Sec. 542A.001. DEFINITIONS.
In this chapter:
(1). Same as
introduced version.
(2) "Claim"
means a first-party claim that:
(A) is made by an insured
under an insurance policy providing
coverage for real property or improvements to real property;
(B) must be paid by the
insurer directly to the insured; and
(C) arises from damage to or loss of covered property caused,
wholly or partly, by forces of nature, including an earthquake or earth
tremor, a wildfire, a flood, a tornado, lightning, a hurricane, hail, wind,
a snowstorm, or a rainstorm.
(3) "Claimant"
means a person making a claim.
(4) "Insurer"
means a corporation, association, partnership, or individual, other than
the Texas Windstorm Insurance Association, engaged as a principal in the
business of insurance and authorized or eligible to write property
insurance in this state, including:
(A) an insurance company;
(B) a reciprocal or
interinsurance exchange;
(C) a mutual insurance
company;
(D) a capital stock
insurance company;
(E) a county mutual
insurance company;
(F) a farm mutual
insurance company;
(G) a Lloyd's plan;
(H) an eligible surplus
lines insurer; or
(I) the FAIR Plan
Association.
(5) "Person"
means a corporation, association, partnership, or other legal entity or
individual.
|
|
Sec. 542A.002. APPLICABILITY
OF CHAPTER. (a) This chapter applies to an action brought by a claimant relating to or arising from the insured's
claim for damage to or loss of covered property under an insurance policy
providing coverage against damage to or loss of improvements to real
property, including:
(1) an action alleging a
breach of contract or of a common law duty; or
(2) an action brought
under:
(A) Subchapter D, Chapter
541;
(B) Subchapter B, Chapter
542; or
(C) Subchapter E, Chapter
17, Business & Commerce Code.
(b) Except as provided by
subsection (c), this chapter applies to any insurer authorized or eligible
to write property insurance in this state, including:
(1) an insurance company;
(2) a reciprocal or
interinsurance exchange;
(3) a mutual insurance
company;
(4) a capital stock
insurance company;
(5) a county mutual
insurance company;
(6) a farm mutual
insurance company;
(7) a Lloyd's plan;
(8) an eligible surplus
lines insurer; or
(9) the FAIR Plan
Association.
(c) This chapter does not
apply to any insurer operating under
Chapter 2210.
|
Sec. 542A.002. APPLICABILITY
OF CHAPTER. (a) Except as provided by
Subsection (b), this chapter applies to an action on a claim against an insurer or agent,
including:
(1) an action alleging a
breach of contract;
(2) an action alleging negligence, misrepresentation, fraud, or
breach of a common law duty; or
(3) an action brought
under:
(A) Subchapter D, Chapter
541;
(B) Subchapter B, Chapter
542; or
(C) Subchapter E, Chapter
17, Business & Commerce Code.
No
equivalent provision, but see Sec. 542A.001(4) above.
(b) This chapter does not
apply to an action against the Texas
Windstorm Insurance Association or to an action relating to or arising from
a policy ceded to an insurer by the Texas Windstorm Insurance Association
under Subchapter O, Chapter 2210. An action against the Texas Windstorm
Insurance Association or that relates to or arises from a policy ceded to
an insurer by the Texas Windstorm Insurance Association under Subchapter O,
Chapter 2210, is governed by Chapter 2210.
|
|
Sec. 542A.003. NOTICE
REQUIRED.
(a) In addition to any
other notice required by law or the applicable insurance policy, as a
prerequisite to filing an action seeking damages under this chapter against
any person, a claimant shall give written notice to the person not later
than the 61st day before the date the claimant files an action to which
this chapter applies.
(b) The notice required
under this section must be in writing
and must provide:
(1) a statement of the
acts or omissions giving rise to the claim;
(2) the identity of any agent whose act or omission caused or
contributed to the claimant's damage or loss;
(3) the specific amount
alleged to be owed on the claim by the insurer; and
(4) the amount of
reasonable and necessary attorney's fees incurred by the claimant, as
calculated under Subsection (c).
(c) The claimant shall calculate the amount of attorney's fees
stated under Subsection (b) by multiplying the number of hours actually
worked by the claimant's attorney, as of the date the notice is given and
as reflected in contemporaneously kept time records, by an hourly rate that
is customary for the same or
similar legal services.
(d) If an attorney or
other representative gives the notice required under this section on behalf
of a claimant, the attorney or representative shall:
(1) provide a copy of the
notice to the claimant; and
(2) include in the notice
a statement that a copy of the notice was provided to the claimant.
(e) A presuit notice under
Subsection (a) is not required if giving notice is impracticable because the
action:
(1) must be filed to prevent limitations from expiring; or
(2) is asserted as a
counterclaim.
(f) A claimant who does
not give a presuit notice under Subsection (a) because giving notice is
impracticable as described by Subsection (e)(1) must give notice in
accordance with Section 542A.004.
No
equivalent provision.
(g) A claimant who gives
notice in accordance with this chapter is not relieved of the obligation to
give notice under any other applicable law. Notice given under this chapter
may be combined with notice given under any other law.
(h) Notice given under
this chapter is admissible in evidence in a civil action or alternative
dispute resolution proceeding relating to the claim for which the notice is
given.
No
equivalent provision.
|
Sec. 542A.003. NOTICE
REQUIRED.
(a). Substantially the
same as introduced version.
(b) The notice required
under this section must provide:
(1) a statement of the
acts or omissions giving rise to the claim;
(2) the specific amount
alleged to be owed by the insurer on the claim for damage to or loss of covered property; and
(3) the amount of
reasonable and necessary attorney's fees incurred by the claimant,
calculated by
multiplying the number of
hours actually worked by the claimant's attorney, as of the date the notice
is given and as reflected in contemporaneously kept time records, by an
hourly rate that is customary for similar legal services.
(c). Same as
introduced version.
(d) A presuit notice under
Subsection (a) is not required if giving notice is impracticable because:
(1) the claimant has a reasonable basis for believing there is
insufficient time to give the presuit notice before the limitations period
will expire; or
(2) the action is asserted
as a counterclaim.
No
equivalent provision.
(e) To ensure that a
claimant is not prejudiced by having given the presuit notice required by
this chapter, a court shall dismiss without prejudice an action relating to
the claim for which notice is given by the claimant and commenced:
(1) before the 61st day
after the date the claimant provides presuit notice under Subsection (a);
(2) by a person to whom
presuit notice is given under Subsection (a); and
(3) against the claimant
giving the notice.
(f). Same as
introduced version.
(g). Same as
introduced version.
(h) The giving of a notice
under this chapter does not provide a basis for limiting the evidence of
attorney's fees, damage, or loss a claimant may offer at trial.
|
|
Sec. 542A.004. ABATEMENT. (a)
A person against whom an action governed by this chapter is pending who does not receive a presuit notice
complying Section 542A.003 may file a plea in abatement not later
than the 30th day after the date the person files an original answer in the
court in which the action is pending.
(b) The court shall abate
the action if the court finds that the person filing the plea in abatement
did not receive a presuit notice complying with Section 542A.003.
(c) An action is
automatically abated without a court order beginning on the 11th day after
the date a plea in abatement is filed if the plea:
(1) is verified and
alleges that the person against whom the action is pending did not receive
a presuit notice complying with Section 542A.003; and
(2) is not controverted by
an affidavit filed by the claimant before the 11th day after the date the
plea in abatement is filed.
No
equivalent provision.
(d) An abatement under
this section continues until the 60th day after the date a notice complying
with Section 542A.003 is given.
(e) In an action to which
this chapter applies, participation in an alternative dispute resolution
proceeding may not be compelled by a court until after the abatement period
provided by Subsection (d) has expired.
|
Sec. 542A.005. ABATEMENT. (a)
In addition to taking any other act
allowed by contract or by any other law, a person against whom an
action to which this chapter applies is pending may file a plea in
abatement not later than the 30th day after the date the person files an
original answer in the court in which the action is pending if the person:
(1) did not receive a presuit notice complying with Section
542A.003; or
(2) requested under Section 542A.004 but was not provided a
reasonable opportunity to inspect, photograph, or evaluate the property
that is the subject of the claim.
(b) The court shall abate
the action if the court finds that the person filing the plea in abatement:
(1) did not, for any reason, receive a presuit
notice complying with Section 542A.003; or
(2) requested under Section 542A.004 but was not provided a
reasonable opportunity to inspect, photograph, or evaluate the property
that is the subject of the claim.
(c) An action is
automatically abated without a court order beginning on the 11th day after
the date a plea in abatement is filed if the plea:
(1) is verified and
alleges that the person against whom the action is pending:
(A) did not receive a
presuit notice complying with Section 542A.003; or
(B) requested under Section 542A.004 but was not provided a
reasonable opportunity to inspect, photograph, or evaluate the property
that is the subject of the claim; and
(2) is not controverted by
an affidavit filed by the claimant before the 11th day after the date the
plea in abatement is filed.
(d) An affidavit described
by Subsection (c)(2) controverting whether the person against whom the
action is pending received a presuit notice complying with Section 542A.003
must:
(1) include as an
attachment a copy of the document the claimant sent to give notice of the
claimant's action; and
(2) state the date on
which the notice was given.
(e) An abatement under
this section continues until the later
of:
(1) the 60th day after the
date a notice complying with Section 542A.003 is given; or
(2) the 15th day after the date of the requested inspection,
photographing, or evaluating of the property is completed.
(f). Substantially the
same as introduced version.
|
|
Sec. 542A.005. INSPECTION.
(a) After a claimant gives notice to an insurer under Section 542A.003(a) and before the date the claimant files the
action for which notice is given, the insurer may send a written
request to the claimant to inspect, photograph, sample, or test the property that is the subject of the
claim, stating a reasonable date and
time for conducting the inspection, photographing, sampling, or testing.
(b) A claimant shall
respond in writing to a request for inspection made pursuant to subsection
(a) no later than the 10th day after receipt of the request. The claimant's
response shall:
(1) state that the
claimant will allow the inspection, photographing, sampling, or testing as
requested by the insurer;
(2) propose a date and
time for the insurer to conduct the inspection, photographing, sampling, or
testing that is not later than the 10th day after the date proposed by the
insurer; or
(3) state that the
claimant objects to the request for inspection, photographing, sampling, or
testing and the basis of the objection.
(c) If a claimant objects
to an inspection requested by an insurer, the claimant shall file a motion
for protection in a district court in the county in which the property is
located not later than the 10th day after making the response required by
Subsection (b).
(d) The trial court shall
hear and decide a claimant's motion for protection on or before the 10th
day after the date the motion was filed. The court shall sign an order for
appropriate inspection, photographing, sampling, or testing on a specified
date and time, unless the court finds that the request to inspect,
photograph, sample, or test was made in bad faith or for the purpose of
harassing the claimant. If the court finds that the request to inspect,
photograph, sample, or test was made in bad faith or for the purpose of
harassing the claimant, the court must state in a written order the facts
supporting the court's decision.
|
Sec. 542A.004. INSPECTION.
Once notice is given under Section 542A.003(a), a person to whom notice is given may send a written
request to the claimant to inspect, photograph, or evaluate, in a reasonable manner and at a reasonable time,
the property that is the subject of the claim.
No
equivalent provision.
No
equivalent provision.
No
equivalent provision.
|
|
Sec. 542A.006. ACTION
AGAINST AGENT; INSURER ELECTION OF LEGAL RESPONSIBILITY. (a) In an action
to which this chapter applies, an insurer that is a party to the action
may, by providing a written notice to the claimant, accept whatever
liability the agent might have for the agent's acts or omissions related to
the claim.
(b) If an insurer makes
the election available to it under Subsection (a) before the claimant files
an action to which this chapter applies, the
claimant shall not file an action against the agent.
(c) If a claimant files an
action to which this chapter applies against an agent and the insurer
thereafter makes the election available to it under Subsection (a), the
action against the agent shall be dismissed with prejudice.
No
equivalent provision.
(d) The election made by an insurer under subsection
(a) must be unconditional. A conditional or qualified election by the
insurer shall be ineffective to obtain dismissal of an action
against an agent if the stated qualifications would result in the insurer
avoiding liability for all claim-related
damages caused to the claimant by the agent's acts or omissions.
(e) An election made by an
insurer under Subsection (a) does not affect an insurer's direct or
vicarious liability for the agent's acts or omissions.
(f) An insurer may not
revoke, and a court may not nullify, an insurer's election made under
Subsection (a).
No
equivalent provision.
No
equivalent provision.
(g) In an action tried by
a jury, an insurer's election made under Subsection (a) may not be made
known to the jury.
|
Sec. 542A.006. ACTION
AGAINST AGENT; INSURER ELECTION OF LEGAL RESPONSIBILITY. (a) Except as provided by Subsection (h),
in an action to which this chapter applies, an insurer that is a party to
the action may elect to accept whatever liability an agent might have to
the claimant for the agent's acts or omissions related to the claim by
providing written notice to the claimant.
(b) If an insurer makes an
election under Subsection (a) before a claimant files an action to which
this chapter applies, no cause of action
exists against the agent related to the claimant's claim, and, if the
claimant files an action against the agent, the court shall dismiss that
action with prejudice.
(c). Substantially
the same as introduced version.
(d) If an insurer makes an
election under Subsection (a) but, after having been served with a notice
of intent to take a deposition of the agent who is the subject of the
election, fails to make that agent available at a reasonable time and place
to give deposition testimony, Sections 542A.007(a), (b), and (c) do not
apply to the action with respect to which the insurer made the election
unless the court finds that:
(1) it is impracticable
for the insurer to make the agent available due to a change in
circumstances arising after the insurer made the election under Subsection
(a);
(2) the agent whose
liability was assumed would not have been a proper party to the action; or
(3) obtaining the agent's
deposition testimony is not warranted under the law.
(e) An insurer's election under Subsection (a) is
ineffective to obtain the dismissal of an action against an agent if the
insurer's election is conditioned in a way that will result in the insurer
avoiding liability for any claim-related
damage caused to the claimant by the agent's acts or omissions.
No
equivalent provision.
(f). Same as
introduced version.
(g) If an insurer makes an
election under Subsection (a) and the agent is not a party to the action,
evidence of the agent's acts or omissions may be offered at trial and, if
sufficient evidence supports the submission, a jury may be asked to
determine the agent's responsibility for claim-related damage caused to the
claimant. To the extent there is a conflict between this subsection and
Chapter 33, Civil Practice and Remedies Code, this subsection prevails.
(h) If an insurer is in
receivership at the time the claimant commences an action against the insurer, the insurer may not make
an election under Subsection (a), and the court shall disregard any prior
election made by the insurer relating to the claimant's claim.
(i). Same as
introduced version.
|
|
Sec. 542A.007. AWARD OF
ATTORNEY'S FEES. (a) Except as otherwise provided by this section, the
amount of attorney's fees that may be awarded to a claimant in an action to
which this chapter applies is the lesser of:
(1) the amount of
reasonable and necessary attorney's fees incurred in bringing the action as
determined by the trier of fact;
(2) the amount of
attorney's fees that may be awarded under any other law; or
(3) the amount calculated
by:
(A) dividing the amount
awarded in the judgment to the claimant for the claimant's claim under the
insurance policy by the amount alleged to be owed on the claim in a notice
given under Section 542A.003 or 542A.004; and
(B) multiplying the amount
calculated under Paragraph (A) by the total amount of reasonable and
necessary attorney's fees incurred by the claimant in bringing the action as
determined by the trier of fact.
(b) Except as provided by
Subsection (d), the court shall award to the claimant the full amount of
reasonable and necessary attorney's fees incurred by the claimant in
bringing the action, as determined by the trier of fact, if the amount
calculated under Subsection (a)(3)(A) is greater than or equal to 0.8,
supported by sufficient evidence, not limited by this section or another
law, and otherwise recoverable under law; and
(c) The court may not
award attorney's fees to the claimant if the amount calculated under
Subsection (a)(3)(A) is less than 0.2.
(d) The court may not
award attorney's fees to the claimant if a defendant in the action pleads
as an affirmative defense, and proves by a preponderance of the evidence,
that representation of the claimant resulted from conduct violating Section
38.12, Penal Code, unless the court determines that the claimant's
attorney:
(1) did not have actual
knowledge of or reason to know of the violation of Section 38.12, Penal
Code, before accepting representation of the claimant; and
(2) reported the violation
of Section 38.12, Penal Code, as required by the Texas Disciplinary Rules
of Professional Conduct of the State Bar of Texas within a reasonable time
after learning facts that would lead a reasonable attorney to believe that
a violation of Section 38.12 had occurred.
(e) If the court finds that the defendant was entitled to, but
did not, receive a presuit notice
at least 61 days before
the action was filed by the claimant, as required by Section 542A.003, the
court may not award to the claimant any attorney's fees incurred after the
date a defendant files a notice of
intent to seek disallowance of fees due to the claimant's failure to
provide a timely presuit notice.
|
Sec. 542A.007. AWARD OF
ATTORNEY'S FEES. (a) Except as otherwise provided by this section, the
amount of attorney's fees that may be awarded to a claimant in an action to
which this chapter applies is the lesser of:
(1) the amount of
reasonable and necessary attorney's fees supported
at trial by sufficient evidence and determined by the trier of fact
to have been incurred by the claimant in bringing the action;
(2) the amount of
attorney's fees that may be awarded to the claimant under other applicable
law; or
(3) the amount calculated
by:
(A) dividing the amount to
be awarded in the judgment to the claimant for the claimant's claim under
the insurance policy for damage to or
loss of covered property by the amount alleged to be owed on the
claim for that damage or loss in
a notice given under this chapter; and
(B) multiplying the amount
calculated under Paragraph (A) by the total amount of reasonable and
necessary attorney's fees supported at
trial by sufficient evidence and determined
by the trier of fact to have been incurred by the claimant in bringing the
action.
(b). Substantially the
same as introduced version.
(c). Same as
introduced version.
No
equivalent provision.
(d) If a defendant in an action to which this chapter applies
pleads and proves that the defendant was entitled to but was not given a
presuit notice stating the specific amount alleged to be owed by the
insurer under Section 542A.003(b)(2) at least 61 days before the
date the action was filed by the claimant, the court may not award to the
claimant any attorney's fees incurred after the date the defendant files the pleading with the court. A pleading under
this subsection must be filed not later than the 30th day after the date
the defendant files an original answer in the court in which the action is
pending.
|
|
SECTION 7.
(a) Section 17.50(a),
Business & Commerce Code, and Section 541.151, Insurance Code, as
amended by this Act, apply only to an action filed on or after the
effective date of this Act. An action that is filed before the effective
date of this Act is 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.
(b) Section 541.156(a),
Insurance Code, as amended by this Act, and Chapter 542A, Insurance Code,
as added by this Act, apply only to an action filed on or after the
effective date of this Act. A claimant
who files an action within 60 days after the effective date of this Act but
who did not provide a presuit notice complying with Section 542A.003 must
give notice as provided in section 542A.003(f). An action that is
filed before the effective date of this Act is 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.
(c) Section 542.060,
Insurance Code, as amended by this Act, applies only to a claim, as defined
under 542.051, made on or after the effective date of this Act by an insurer, policyholder, or beneficiary
under an insurance policy or contract. A claim made before the
effective date of this Act is 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.
|
SECTION 4.
No
equivalent provision.
(a) Section 541.156,
Insurance Code, as amended by this Act, and Chapter 542A, Insurance Code,
as added by this Act, apply only to an action filed on or after the
effective date of this Act.
An action that is filed
before the effective date of this Act is 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.
(b) Section 542.060(c),
Insurance Code, as added by this Act, applies only to a claim, as defined
by Section 542A.001, Insurance Code, as added by this Act, made on or after
the effective date of this Act. A claim made before the effective date of
this Act is 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.
|
|
SECTION 8. 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, 2017.
|
SECTION 5. Same as introduced
version.
|
|