HBA-TBM C.S.H.B. 1383 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1383
By: Dunnam
Insurance
4/23/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, insurers are obligated to provide a defense to third party
claims against their policy holders.  In many instances, a large number of
property and casualty insurers in Texas provide that defense under a
reservation of rights through the services of their attorneys.  This
reservation of rights may create a conflict of interest.  Counsel that is
under the employ of or contract to the insurer owes allegiance to the
insurer, and if allowed to control the insured's defense may manipulate the
defense of the case to the benefit of the insurer and the detriment of the
insured.  In situations in which a conflict of interest exists, an insurer
is obligated to provide and pay for independent counsel to defend its
insured.  However, many policyholders are not aware of this obligation.
C.S.H.B. 1383 requires the commissioner of insurance, in consultation with
the State Bar of Texas, to adopt rules to ensure the independence of
counsel provided to an insured under a casualty insurance policy.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the commissioner of insurance in
SECTION 1 (Section 3, Article 21.56B, Insurance Code) of this bill.   

ANALYSIS

C.S.H.B. 1383 amends the Insurance Code to require the commissioner of
insurance (commissioner) in consultation with the State Bar of Texas to
adopt rules to ensure the independence of counsel provided to an insured
under a casualty or liability insurance policy.  The rules must require
notice to the insured of the insured's right to independent counsel and may
specify circumstances in which an insurer may not offer or provide to the
insured the services of an attorney with a contractual or other
relationship with the insurer. In providing a defense for an insured
against a claim or action under an insurance policy, an insurer is
prohibited from using, or requiring an insured to use, an attorney who is
an employee of the insurer or an employee, owner, partner, or shareholder
of a law firm that works solely for the insurer or solely for a group of
affiliated insurers.  An insurer who violates this provision commits an act
that constitutes a practice of law as defined by state law.  The bill
authorizes a person to bring an action against an insurer to recover any
actual damages proximately suffered by an insured because of a violation of
these provisions or a rule adopted by the commissioner and to obtain
injunctive relief to prevent the threatened or continued violation of these
provisions or a rule adopted by the commissioner.  The bill requires a
court to award reasonable and necessary attorney's fees to a person who
recovers damages or obtains injunctive relief.  A court, on its own motion
or on the motion of any party, is required to disqualify an attorney who is
representing an insured before that court in violation of these provisions
or a rule adopted by the commissioner. The bill provides that in a claim
asserted or an action commenced before September 1, 2001, an attorney
representing the insured on September 1, 2001, is authorized to continue to
represent an insured until December 31, 2001.  Not later than December 31,
2001, an attorney continuing to represent an insured is required to take
appropriate steps to withdraw from representation and the insurer is
required to provide an attorney to the insured in accordance with these
provisions.   

The bill applies only to an insurer that issues any form of casualty or
liability insurance that is delivered, issued for delivery, or renewed in
this state and is issued to or covering any resident of this state, covers
liability incurred by an insured in this state, or under which the insurer
provides a defense to an insured in a claim or action pending in this
state.   

EFFECTIVE DATE

September 1, 2001. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1383 differs from the original by applying the provisions of the
bill to an insurer that issues any form of liability insurance and limits
the application to only an insurer that issues a casualty or liability
insurance policy to or covering any resident of this state, covering
liability incurred by an insured in this state, or under which the insurer
provides a defense to an insured in a claim or action pending in this
state. The substitute adds provisions regarding unauthorized practice of
law, damages and injunctive relief, and disqualification of an attorney.
The substitute  adds provisions regarding an attorney continuing to
represent an insured in a claim asserted or action commenced before the
effective date of the bill.  The substitute removes the provision requiring
the commissioner of insurance to adopt rules not later than December 15,
2001.