HBA-TBM C.S.H.B. 548 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 548
By: Keffer
Insurance
4/9/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Texas law requires a contractor to secure a payment bond and a performance
bond on all public projects. Often a construction payment bond is issued by
an insurance company performing the duties of a commercial surety (surety).
The contractor is the principal.  The governmental entity contracting the
construction or any subcontractor providing services may be the bond
obligee.  If the contractor defaults on completion of the project or
payment for services rendered, the bond obligee may file suit against the
surety to collect compensation.  However, the Texas Supreme Court has ruled
that there is no common law duty of good faith and fair dealing between the
surety and the bond obligee comparable to that between a liability insurer
and its insured.  The court has further held that provisions regarding
compensation of injuries sustained due to practices declared to be unfair
or deceptive are inapplicable to a commercial surety.  As a result, some
commercial surety companies refuse to pay on a claim until the surety is
sued, and then attempt to force a settlement with the bond obligee that
favors the surety.  C.S.H.B. 548 amends the Insurance Code to provide that
the business of insurance includes the actions of a surety company, and
sets forth provisions relating to the duties of a commercial surety.   

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 5, Article 7.20, Insurance Code) of this bill.   

ANALYSIS

C.S.H.B. 548 amends the Insurance Code to regulate the conduct of a surety
company issuing a construction payment bond.  The bill sets forth
provisions regarding a surety company's duties of acknowledgment and
investigation upon receipt of notice of a claim on a construction payment
bond.  The bill sets forth the methods by which the surety company accepts
or rejects the claim.  The bill specifies the procedure for payment of a
claim by the surety company.  The bill authorizes the commissioner of
insurance to adopt rules enforcing these provisions in cases in which a
surety company violates this article as a general business practice.  

EFFECTIVE DATE

September 1, 2001, and applies only to construction payment bonds
delivered, issued for delivery, or renewed on or after January 1, 2002. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 548 differs from the original by removing the definition of
"person," adding the definition of "notice of claim" and "claimant," and
modifying the definition of "surety company."  The substitute provides that
if a construction payment bond provides an address of the surety to which
claims should be submitted, the notice of claim is effective upon the
surety's receipt of the notice at that address.  The substitute provides
that nothing in this article exempts a claimant from compliance with any
applicable statutory or contractual notice requirement.  The substitute
requires all notices of claims to be in writing and removes  provisions
regarding notices made by telephone.  The provision limiting the surety's
right to request additional information at a later time is removed.  The
substitute increases the time required for the notification of acceptance
or rejection by a surety from 25 to 30 days.  A surety's reasons for
rejecting a claim are required to be provided in specific terms for all
reasons known to the surety at the time.  The substitute does not limit a
surety in an action brought by the claimant to only those defenses stated
in the bill so long as the surety has made a good faith effort to inform
the claimant of reasons for rejecting the claim as required.  The
substitute authorizes a surety to reject a claim that is subject to a
legitimate dispute between the principal obligor and the claimant or for
which the claimant has failed to provide supporting documents and
information reasonably requested by the surety.    

C.S.H.B. 548 increases the time for a surety to pay an accepted claim from
7 to 15 days after the surety's notice of acceptance.  A surety company is
required to pay within seven days of receipt of any required executed
settlement documents or other conditions of settlement.   

C.S.H.B. 548 authorizes the commissioner of insurance to adopt rules
enforcing the statutory obligation of a surety company that violates this
article as a general business practice.  The substitute removes provisions
regarding private causes of action, claimants' rights to recover damages
from sureties for violations of statutory obligations, and the exemption of
investigatory information from disclosure privileges.  
C.S.H.B. 548 prohibits the provisions of the bill from being construed to
create a private cause of action, be a precondition by a claimant in
judicially enforcing its rights against a surety, diminish a surety's other
obligations that may exist by law, or prohibit a surety from asserting a
defense against a claim in an enforcement proceeding.