HB 4020 Introduced

Relating to presuit notice and inspection requirements associated with, and certain liability in connection with, certain insurance claims for property damage. 

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A BILL TO BE ENTITLED

 

AN ACT

 

relating to presuit notice and inspection requirements associated

 

with, and certain liability in connection with, certain insurance

 

claims for property damage.

 

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

 

       SECTION 1.  Section 542.060(c), Insurance Code, is amended

 

to read as follows:

 

       (c)  In regard to a claim that is subject to [an action to

 

which] Chapter 542A [applies], if an insurer that is liable for the

 

[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 2.  Section 542A.003, Insurance Code, is amended by

 

amending Subsections (b) and (g) and adding Subsections (b-1),

 

(b-2), and (b-3) to read as follows:

 

       (b)  The notice required under this section must [provide]:

 

             (1)  reference this chapter [a statement of the acts or

 

omissions giving rise to the claim];

 

             (2)  describe the damage to or loss of covered property

 

for which payment is owed under the insurance policy in sufficient

 

detail to give the insurer a fair opportunity to adjust the claim;

 

             (3)  state the claimant’s legal and factual basis for

 

believing the claim is covered by the insurance policy;

 

             (4)  provide a detailed, claimant- and claim-specific

 

description of the acts or omissions by each insurer or agent that

 

constitute a violation of a provision of the insurance policy, a

 

statute, a provision of the Texas Administrative Code, or a common

 

law standard of conduct;

 

             (5)  except as provided by Subsection (b-1), state the

 

specific amount of money alleged to be owed by the insurer on the

 

claim for the damage to or loss of covered property described by

 

Subdivision (2);

 

             (6)  state [and

 

             [(3)]  the amount of reasonable and necessary

 

attorney’s fees incurred by the claimant to investigate the claim

 

and prepare the notice required by this section, 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; and

 

             (7)  include the attorney’s contemporaneously kept time

 

records and all existing estimates, invoices, statements,

 

receipts, engineer’s or inspector’s reports, or other items

 

constituting proof of the alleged loss that are possessed by the

 

claimant or subject to the claimant’s control.

 

       (b-1)  Instead of stating the specific amount of money

 

alleged to be owed as required by Subsection (b)(5), a claimant may

 

state that the claimant needs additional time to evaluate and

 

quantify the claim before the claimant states an amount the

 

claimant will accept in full payment of the claim.  By making this

 

statement, the claimant temporarily postpones the claimant’s

 

obligation to comply with that subsection as provided by Section

 

542A.005.

 

       (b-2)  The purpose of the notice required by this section is

 

to enable an insurer to adjust and, if the insurer chooses, satisfy

 

a claimant’s claim by paying the amount the claimant has alleged is

 

owed on the claim.  The amount alleged by the claimant to be owed on

 

the claim must be an amount the claimant will accept in full payment

 

of the claim.

 

       (b-3)  Notwithstanding Subsection (e), an insurer may pay

 

the amount the claimant alleges is owed on the claim and pursue an

 

action under Chapter 37, Civil Practice and Remedies Code, to

 

determine the reasonableness or necessity of attorney’s fees

 

allegedly incurred by the claimant as stated in the claimant’s

 

notice.

 

       (g)  At the option of a person to whom notice was given,

 

notice [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.

 

       SECTION 3.  Section 542A.004, Insurance Code, is amended to

 

read as follows:

 

       Sec. 542A.004.  INSPECTION.  Not later than the 15th [30th]

 

day after receiving a presuit notice 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.  If reasonably possible, the inspection,

 

photography, and evaluation must be completed not later than the

 

30th [60th] day after the date the person receives the presuit

 

notice.

 

       SECTION 4.  Section 542A.005, Insurance Code, is amended by

 

amending Subsections (a), (b), (c), (d), and (e) and adding

 

Subsections (d-1), (g), and (h) to read as follows:

 

       (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 fully complying

 

with Section 542A.003; [or]

 

             (2)  received a presuit notice under Section 542A.003

 

stating that more time is needed for the claimant to state an amount

 

the claimant will accept in full payment of the claim; or

 

             (3)  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

 

fully complying with Section 542A.003; [or]

 

             (2)  received a presuit notice under Section 542A.003

 

stating that more time is needed for the claimant to state an amount

 

the claimant will accept in full payment of the claim; or

 

             (3)  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 fully

 

complying with Section 542A.003; [or]

 

                   (B)  received a presuit notice under Section

 

542A.003 stating that more time is needed for the claimant to state

 

an amount the claimant will accept in full payment of the claim; or

 

                   (C)  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 fully complying with Section 542A.003 or

 

stating that more time is needed for the claimant to state an amount

 

the claimant will accept in full payment of the claim under 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.

 

       (d-1)  If an affidavit described by Subsection (c)(2) is

 

timely filed by a claimant, the court must enter an order abating

 

the action unless the court finds that the claimant’s controverting

 

affidavit establishes that the claimant timely provided a presuit

 

notice to the movant that fully complied with Section 542A.003,

 

including the requirement that the notice state an amount the

 

claimant will accept in full payment of the claim.

 

       (e)  An abatement under this section continues until the

 

later of:

 

             (1)  the 60th day after the date a notice fully

 

complying with Section 542A.003, including the requirement that the

 

notice state an amount the claimant will accept in full payment of

 

the claim, is given; or

 

             (2)  the 15th day after the date of the requested

 

inspection, photographing, or evaluating of the property is

 

completed.

 

       (g)  The filing of a plea in abatement stays all discovery in

 

the action until an order overruling the plea is signed by the trial

 

court or the abatement period provided by Subsection (e) has

 

expired.

 

       (h)  Prejudgment interest, interest under Section 542.060,

 

or interest that might be awarded under any other law does not

 

accrue while an action is abated under this section.

 

       SECTION 5.  Section 542A.007(d), Insurance Code, is amended

 

to read as follows:

 

       (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 to the claimant

 

under any law [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 6.  (a) Section 542.060(c), Insurance Code, as

 

amended by this Act, applies only to a claim, as defined by Section

 

542A.001, Insurance Code, 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.

 

       (b)  Chapter 542A, Insurance Code, as amended by this Act,

 

applies only to an action that is filed on or after the effective

 

date of this Act.  An action 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.

 

       SECTION 7.  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, 2025. 

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