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                                                                   SETTLEPOU NEWSLETTER
SettlePou Newsletter

                                      3333 LEE PARKWAY, EIGHTH FLOOR, DALLAS, TEXAS                                         75219
                                      TEL: (214) 520-3300, FAX: (214) 526-4145

Volume 2, Issue 4                                                                                                         Winter 2005

SettlePou Insurance Update:
Legislative Developments                                                                            Attorneys:
By H. Norman Kinzy                penalties contained therein      “with reasonable certainty”      •   SAYURI BELTRAN
                                  did not apply, to an insurer’s   that the underlying cause of     •   MICHAEL S. BYRD
                                  failure to defend. Although      the mold at the property has
                                  the denial of petition for re-   been remediated, or in-          •   SCOTT J. CONRAD
                                  view by the Supreme Court        spected by an independent
                                                                                                    •   MARSHA L. DEKAN
                                  is not necessarily conclusive,   assessor or adjustor to de-
                                  it is at least the second op-    termine that the property        •   J. GARTH FENNEGAN
                                  portunity that the Supreme       does not contain evidence of
                                                                                                    •   DON GWIN
                                  Court has had to say other-      mold damage.
                                  wise, but declined to do so.                                      •   BARRY D. JOHNSON
                                                                       3. House Bill 941 specifi-
                                  •   Legislation:                 cally permits insurers to take   •   KATHERINE L. KILLINGSWORTH
                                                                   into account the claims his-
                                  A number of laws have been       tory of water-related dam-       •   NORMAN H. KINZY
                                  passed by the Texas legisla-     ages pertaining to appliances
                                  ture which will be of interest                                    •   BRADLEY E. MCLAIN
•      Article 21.55 (now §                                        in setting rates.
       542.051, et seq.), Texas   to the insurance indus-                                           •   MICHAEL P. MENTON
       Insurance         Code     try. For example, insurers           4. Effective September 1,
                                  may be interested to learn       2005, the Texas Workers          •   KELLY J. MIDDLETON
       “Prompt Payment of
       Claims Act” - Duty to      more about the following:        Compensation Commission          •   CARL W. MORGAN
       Defend:                                                     has been abolished, and its
                                                                   functions have been trans-       •   JEFF MOSTELLER
Although there is a split in          1. House Bill 1328 pro-
                                                                   ferred to a newly created
authority, primarily between      vides that insurers cannot                                        •   DAVID M. O’DENS
                                                                   “Division of Workers Com-
Texas federal and state           take previously existing mold
                                                                   pensation” within the Texas      •   JEFFREY J. PORTER
courts, the Texas Supreme         problems into account in
                                                                   Department of Insur-
Court has now denied re-          making insurance underwrit-                                       •   ROBERT L. POU III
                                                                   ance. Many changes have
view in TIG Insurance Com-        ing decisions if the insured
                                                                   been made, some of which         •   SHARON REULER
pany v. Dallas Basketball, Lim-   applicant establishes that the
                                                                   are: (1) annual performance
ited, et al., 129 S.W.3rd 232     mold problem has been ame-                                        •   JOHN D. “Jay” SETTLE
                                                                   reviews for insurance carri-
(Tex. App. - Dallas 2004)         liorated by providing a
                                                                   ers and healthcare providers,    •   J. ALLEN SMITH
(rev. den’d, August 22,           “certificate of mold remedia-
                                                                   (2) creation of the “Office Of
2005). The Court of Ap-           tion” or through an inde-                                         •   JAMES M. STANFORD
                                                                   Injured Employee Counsel”
peals in the TIG Insurance        pendent inspection.
                                                                   to represent injured employ-     •   MICHAEL R. STEINMARK
case specifically held that an         2. The Insurance Code       ees as they pass through the
insurer’s failure to defend       now requires an applicant        system and to facilitate their   •   STEVEN M. THOMAS
under a liability insurance       who is applying for a residen-   return to work as soon as        •   CLIFF A. WADE
policy was not the type of        tial property insurance policy   possible;
“First Party” claim governed      on a property that had mold                                       •   C. RUSSELL WOODY
by the Prompt Payment of          damage to provide a Certifi-
Claims Act, and thus the Act      cate of Mold Remediation         Continued on pages 2-3
was not applicable, and the       that must now establish
                                                                                                     SettlePou Newsletter

                                     Insurance Update:
                                     Legislative Developments                          ...Continued from page 1
                                     (3) initiation of certification of   insurer to make a “special            11. “Customer inquiries”
                                     workers compensation health          deposit” with the Comptroller      such as telephone calls or
                                     care networks for use by             of Texas if the Commissioner       other communications made
                                     workers compensation carri-          of Insurance determines that       to an insurer that do not re-
                                     ers to provide high quality          certain conditions relating to     sult in an “investigation or
                                     medical care to injured em-          the finances and/or operation      claim,” may not be consid-
                                     ployees, (4) the creation of a       of the insurer are “potentially    ered by an insurer when de-
                                     pilot return-to-work program         hazardous” to the insurer’s        ciding to issue or to decline
                                     for small employers providing        policyholders, enrollees, credi-   to issue an insurance policy
                                     grants up to $2,500 per em-          tors, or the public.               to an applicant for a standard
                                     ployer to pay for workplace                                             fire, homeowners, farm or
                                                                              7. Group life insurance
                                     modification initiatives to                                             ranch owners insurance pol-
                                                                          policies that are issued or
                                     facilitate early return to                                              icy.
                                                                          renewed after January 1, 2006,
                                     work, (5) expansion of the
       H. Norman Kinzy                                                    will be required to cover a           12. An insurer’s attorney’s
                                     list of issues that designated
                                                                          minimum of only two employ-        fees and court costs in pri-
                                     doctors may examine with
        Areas of Practice:                                                ees on the date the policy is      vate passenger automobile
                                     respect to an injured em-
                                                                          issued or renewed.                 insurance policy subrogation
   Aviation, First Party Insurance   ployee, and (6) setting the
                                                                                                             cases in Texas may now be
Claims, Insurance Coverage Litiga-   state average weekly wage at             8. The definition of “pre-
tion, Insurance Subrogation, Third                                                                           recovered by the insurer
                                     $540 through September 30,           existing condition” for cover-
    Party Liability Claims and                                                                               when pursuing a subrogation
                                     2006, with provision to in-          age under the Texas Health
         Business Litigation                                                                                 claim against a “responsible
                                     crease the same thereafter.          Insurance Risk Pool has been
                                                                                                             third party” who is uninsured.
                                                                          made more restrictive during
                                         5. The “Insurer Receiver-
                                                                          the first year of pool coverage      13. Professional liability
                                     ship Act” has been amended
                                                                          by expanding the exclusion to      coverage for volunteer
                                     to actively protect the inter-
                                                                          include non-payment for any        healthcare providers may
                                     ests of insureds, claimants,
                                                                          charges or expenses for which      now be made available by
                                     creditors, and the public
                                                                          the existence of symptoms          insurers in Texas for injuries
                                     through “early detection of
                                                                          would cause an ordinarily pru-     to a patient while the pro-
                                     any potentially hazardous
                                                                          dent person to seek diagnosis,     vider is acting within the
                                     financial condition” of an in-
                                                                          care or treatment within the       course and scope of the per-
                                     surer and “prompt applica-
                                                                          six-month period preceding         son’s duties as a volunteer
                                     tion of appropriate corrective
                                                                          the effective date of coverage.    healthcare provider.
                                     measures.” The statute ex-
       Legislative Update:           tends the scope of personal              9. Insurance coverage for        14. The Texas Windstorm
                                     jurisdiction over debtors of         “identity theft” may now be        Insurance Association may
                                     troubled insurers located            written by insurers authorized     now issue a policy that in-
Insurance coverage for “identity     outside of Texas and provides        to write property and casualty     cludes windstorm and hail
 theft” may now be written by        for a “rehabilitator” with the       insurance in Texas.                coverage for a building or
  insurers authorized to write       powers of the directors, offi-                                          other structure in “seacoast
                                     cers, and managers of the              10. Health benefit plans
                                                                                                             territory” that is built wholly
property and casualty insurance      insuror to take over such            must now provide coverage
                                                                                                             or partially over water, as
            in Texas.                insurers and do whatever             for each woman 18 years of
                                                                                                             well as for the personal prop-
                                     may be necessary to return           age or older enrolled in the
                                                                                                             erty contained in the building.
                                     them to good health.                 plan for expenses for an an-
                                                                          nual, medically recognized            15. The legislature has
                                         6. The Texas Commis-             diagnostic examination for the     changed Texas law regarding
                                     sioner of Insurance, in the          early detection of cervical        claims involving asbestos and
                                     Commissioner’s sole discre-          cancer.                            silica exposure similar to
                                     tion, may now require an                                                claims asserted in the medical

                                     Page 2
Volume 2, Issue 4

Insurance Update:
Legislative Developments                        ...Continued from page 2
healthcare provider                exposed person’s medical            person’s eligibility for, or cov-
realm. Specifically, the new       condition, absent which dis-        erage under, such a policy or            Legislative Update:
Act (a) adopts medically ac-       missal of that person’s claim       contract.
cepted standards for differen-     may occur. The Act further                                              Health benefit plans must now
tiating individuals with non-      provides that the Multi-            NOTE:      The foregoing are          provide coverage for each
malignant asbestos-related or      District Litigation Rules apply     but summaries of various
silica-related diseases causing    to any action pending on Sep-                                             woman 18 years of age or
                                                                       recent legislative develop-
functional impairment from         tember 1, 2005, thereby             ments, and the entire statu-         older enrolled in the plan for
individuals with no functional     bringing almost all silica and      tory enactments should be              expenses for an annual,
impairment, (b) provides a         asbestos cases currently            read prior to taking any ac-
method to obtain the dis-          pending in Texas Courts into                                            medically recognized diagnostic
                                                                       tion regarding these matters.
missal of lawsuits involving       existing multidistrict litigation                                          examination for the early
persons with no functional         proceedings.                                                             detection of cervical cancer.
                                                                       For more information, con-
impairment, while protecting
                                      16.    Insurers who offer        tact H. Norman Kinzy of
that person’s right to bring
                                   health benefit plans or annui-
suit later, (c) creates an ex-                                         SettlePou at (214) 520-3300.
                                   ties or life insurance policies
tended period before limita-
                                   or contracts may not use the
tions begin to run in which to
                                   fact that a person has been
bring claims for injuries
                                   exposed to asbestos fibers or
caused by asbestos or silica
                                   silica or has filed a claim for
for those persons who have
                                   exposure to asbestos fibers
been exposed but not yet
                                   or silica to reject, deny, limit,
impaired, and (d) requires the
                                   cancel, refuse to renew, in-
preparation and filing of re-
                                   crease the premiums for, or
ports by physicians regarding
                                   otherwise adversely affect a
the diagnosis and cause of an

             With appreciation of our association during the
             past year, we extend our very best wishes for a
                              Happy Holiday Season

                                  Attorneys - Counselors

                                                                                               Page 3
                                                                                                SettlePou Newsletter

                                     Texas Governor Signs New Law in Response to Kelo
                                     By J. Allen Smith               purposes.2 The new law pro-        For further information, feel
                                                                     hibits takings which benefit a     free to contact J. Allen Smith
                                     Our last two issues featured
                                                                     particular private party           or Scott J. Conrad of Settle-
                                     reports on the United States
                                                                     through the use of the prop-       Pou at (214) 520-3300.
                                     Supreme Court’s decision on
                                                                     erty and which are primarily
                                     eminent domain in Kelo v. The
                                                                     for economic development.
                                     City of New London, Connecti-
                                                                     Also prohibited are takings
                                     cut.1 We previously reported
                                                                     where the stated public use
                                     that Governor Rick Perry and                                       1
                                                                                                          Kelo v. City of New London,
                                                                     constitutes a mere pretext
                                     the Texas Legislature had                                          Conn., No. 04-108 (U.S. June
                                                                     for conferring a benefit on a
                                     responded to Kelo by mobiliz-                                      23, 2005).
                                                                     particular private party. The
                                     ing to enact legislation that                                      2
                                                                                                          S.B. 7, 79th Leg., 2d Called
                                                                     new law does not restrict the
         J. Allen Smith              would minimize the impact of                                       Sess. (Tex. 2005).
                                                                     use of eminent domain for
                                     the Supreme Court’s deci-
       Areas of Practice:                                            legitimate public purposes,
                                     sion. Their efforts came to
                                                                     including projects related to
   Business Litigation, Financial    fruition on August 31, 2005,
                                                                     transportation, water supply
Institution Litigation, Condemna-    when Governor Perry signed
                                                                     and flood control, public
 tion Law, Legislation and Regu-     into law an act limiting the
                                                                     parks, hospitals, libraries, and
 latory Affairs, Real Estate Liti-   ability of the government to
    gation and Appellate Law                                         museums, and where eco-
                                     take property by eminent
                                                                     nomic development is a sec-
                                     domain for private parties or
                                                                     ondary purpose.
                                     for economic development

                                     Texas Supreme Court to Rule on Covenants
        FOR THE FIRST TIME           Not to Compete
        IN OVER A DECADE,            By Michael S. Byrd              compete against former em-         to compete in Texas, and will
        THE TEXAS SUPREME                                            ployees, winning the favor of      likely, either materially
                                     One of the hottest topics in    Texas courts has been a            change or affirm the way in
        COURT IS SET TO              employment law in Texas is      daunting task, with courts         which Texas courts deal with
        WEIGH IN ON THE              the enforceability of cove-     typically being reluctant to       these covenants. Look for a
                                     nants not to compete. Cove-     enforce the agreements. For        feature-length article in an
                                     nants not to compete are        the first time in over a dec-      upcoming issue once the
        COVENTENTS NOT               agreements prohibiting em-      ade, the Texas Supreme             Court has handed down its
        TO COMPETE.                  ployees from working for        Court is set to weigh in on        decision.
                                     competitor companies for a      the enforceability of cove-
                                     defined scope, time, and geo-   nants not to compete. Em-
                                     graphic area after termina-     ployers and attorneys are          For questions on the current
                                     tion. These covenants are       anxiously awaiting the             status of covenants not to
                                     viewed as a restraint on        Court’s pending decision in        compete or any future
                                     trade, which the United         Alex Sheshunoff Management         changes, feel free to contact
                                     States Constitution protects    Services, L.P. v. Johnson. This    Michael S. Byrd or J. Allen
                                     against. Thus, while Texas      case is expected to have a         Smith of SettlePou at (214)
                                     employers have long sought      significant impact on the en-      520-3300.
                                     to enforce covenants not to     forceability of covenants not

                                     Page 4
Volume 2, Issue 4

                                    Barry D. Johnson
Hometown: Fort Smith,                 County Chopper and
         Arkansas                     Mythbusters (it’s a toss      What do you consider as the
                                      up).                          most important qualities of
College: Rhodes College
                                 •    Old Movie: It’s a             a good lawyer?
(Southwestern at Memphis)
                                                  Wonderful Life    The most important quality for
Law School: Southern Meth-       •    Recent Movie: O Brother       being a good lawyer is loving
            odist University                    Where Art Thou      your area of practice and the
                                 •    Book: Master of the           industry you represent. This
Family: Wife, Susana;                                               love leads you to do more
                                             Senate, Caro
        daughter, Allie                                             than master the legal aspects
                                 •    Music: Classical, Classic
Personal Favorites:                   Rock, Blues, Country and      of your client’s business. It
• Food: Italian                       Western Swing. In short,      leads you to become con-
                                      anything that’s “good.”       nected with your client’s indus-
• Drink: Gin and Tonic
                                 •    Vacation: Anything out-       try and learn what makes that
• Hobby: Anything musical:                                          industry “tick.” We win when               Barry D. Johnson
    choral composition, per-          side and far away, where
                                                                    our clients achieve their goals,
    forming with my quartet,          cell phones and Blackber-                                                  Areas of Practice:
                                                                    and great lawyers assist their
    playing guitar                    ries don’t work.                                                   Mortgage Banking Regulation
                                                                    clients in formulating their         and Lending, Lender Liability,
                                 •    Sport: Baseball               business goals.
•   TV Show: Orange                                                                                    Commercial Bankruptcy, Financial
                                 •    Sports Team: Rangers                                              Institution Litigation, Real Estate

                                     David Turner
Position: Director of           •    Old Movie: Maltese            copter pilot in 1973. He was
          Administration                            Falcon         the Environmental Programs
Hometown: Slater, Missouri      •    Recent Movie: The “not        Officer at Fort Hood, Texas
Education: BS, Wildlife                                            until 1977. He left service with
                                     so recent” Monty Python
Management, University of                                          rank of Captain. David and his
                                     and the Holy Grail
Missouri; MA, Zoology, Uni-                                        wife, Denise, live in an historic
                                •    Book: Bible                   1916 home in East Dallas and
versity of Missouri; MBA,
                                •    Music: Eclectic mix of        just completed building a new
Finance, University of Texas
                                     50’s - 70’s rock, classic     woodworking shop. Before com-
at Dallas
                                     country, classical            ing to SettlePou, he worked with
Family: Wife, Denise;
                                •    Vacation: Silverton,          an oilfield services company’s
          five children (none                                      environmental consulting sub-
          at home), two                          Colorado
                                •    Sport: NASCAR                 sidiary and as the Business Man-
          grandchildren                                            ager for an architectural firm.
Personal Favorites:             •    Sports Team: Cowboys          David has been with SettlePou
• Food: Anything but liver      David was born and raised on a     since 1994.
• Drink: single malt Scotch     central Missouri farm, which he
• Hobby: Grandkids and          left in 1966 to attend college.                                                  David Turner
     woodworking                He married in 1969 and went
• TV Show: Frasier              into the Army as a Huey heli-

                                                                                            Page 5
                                                                                                  SettlePou Newsletter

                                      New Identity Theft Laws May Impact Your Business’s
                                      Document Retention Policy
                                      By Michael S. Byrd                tion 35.48 of the Texas Busi-     readable any personal infor-
                                                                        ness and Commerce Code.           mation of its customers.
                                      The advent and increased          The new law imposes new
                                      reliance on the Internet has      duties on employers with
                                      encouraged the growth of          respect to the disposal of        Senate Bill 122, which adds
                                      countless small businesses,       “personal identifying informa-    Chapter 48 to Title 4 of the
                                      permitting even one-person        tion”, which is defined to        Texas Business and Com-
                                      start-ups to level the playing    include an individual’s first     merce Code, also imposes
                                      field with larger competitors     name or initial and last name     newly created duties on busi-
                                      by providing inexpensive and      in combination with any one       nesses to protect the per-
                                      immediate access to informa-      or more of the following: (1)     sonal identifying information
                                      tion and communication. An        date of birth; (2) social secu-   of their customers. In addi-
                                      unfortunate byproduct of this     rity number or other govern-      tion to containing similar lan-
        Michael S. Byrd               instant access to information     ment-issue identification         guage regarding the disposal
                                      has arisen in the form of         number; (3) mother’s maiden       of personal information as
        Areas of Practice:
                                      identity theft, the stealing of   name; (4) unique biometric        House Bill 698, the Senate bill
 Health Law, Private Business, Pri-   an individual’s name, social      date, including fingerprint,      also requires businesses to
vate Business - Technology, Private   security number, credit card      voice identification, retina or   implement and maintain rea-
 Business - Mergers and Acquisi-      numbers, or other informa-        iris image; (5) unique elec-      sonable procedures, including
   tions, Business Litigation and     tion not otherwise publicly       tronic identification number,     the taking of any appropriate
       Condemnation Law               available.                        address or routing code; (6)      corrective action, to protect
                                                                        telecommunication access          and safeguard against the
                                                                        device, including credit or       unlawful use or disclosure of
                                      Texas is the latest state to      debit card information; or (7)    sensitive personal information
                                      enact legislation requiring       financial institution account     collected or maintained by
                                      businesses to protect their       number or other financial         the business in the regular
                                      customer information more         information.                      course of business. The Bill
                                      stringently, and specifically                                       also contains notification du-
                                      outlaws identity theft in con-                                      ties and procedures with re-
                                      junction with Congress’s Fair     When disposing of a business      spect to any breach of secu-
                                      and Accurate Credit Transac-      record that contains a cus-       rity of computerized data that
                                      tions Act (FACT Act), which       tomer’s personal identifying      includes sensitive personal
                                      amends the federal Fair           information, a business must      information.
                                      Credit Reporting Act. The         modify the information to
                                      effect on businesses in the       make it unreadable or undeci-
                                      state is profound. Texas          pherable by shredding, eras-      A business that violates
                                      House Bill 698 and Texas          ing or any other means. For       Chapter 48 is liable to the
                                      Senate Bill 122, both of which    each record that is not ren-      state for a civil penalty in ex-
                                      were signed into law and          dered unreadable, an em-          cess of $2,000 and not to
                                      took effect on September 1,       ployer is liable for a penalty    exceed $50,000 for each vio-
                                      2005, profoundly alter the        of up to $500. Under this         lation. While such an action
                                      way businesses must treat         new law, simply throwing out      is designed generally to be
                                      their customers’ personal         client billing records or cus-    brought by the Texas Attor-
                                      information as well as the        tomer contact information         ney General, a person who
                                      personal information of po-       may constitute a violation. A     has filed a criminal complaint
                                      tential employees.                business must be vigilant in      alleging identity theft may also
                                                                        shredding the documentation,      bring a civil action against the
                                                                        erasing the electronic data       accused business or person
                                      House Bill 698, amends Sec-       and otherwise rendering un-       under this section.

                                      Page 6
Volume 2, Issue 4

New Identity Theft Laws May Impact Your Business’s
Document Retention Policy ...Continued from page 6
In addition to the state legis-       that is collected or used in           ures include shredding or
lation, businesses must be            establishing eligibility for em-       burning of documents, de-
aware that Congress has also          ployment, loans, credit or             stroying or erasing electronic
enacted a disposal rule to            insurance. The Act applies             data compilations, as well as
protect the personal informa-         primarily to third-party infor-        establishing policies and pro-
tion of customers.         The        mation collectors, such as             cedures to monitor the busi-
FACT Act amendments to                background check companies.            ness’s compliance with the
the Fair Credit Reporting Act         If an employer uses its own            Act.
took effect on
                                                                                           Due to the
June 1, 2005.
                                                                                           strict restric-
Like the Texas
                                                                                           tions and penal-
House and Sen-
                                                                                           ties set forth in
ate bills, the
                                                                                           the state and
FACT Act sets
                                                                                           federal     laws,
forth duties, pro-
                                                                                           many       bu si-
cedures and pen-
                                                                                           nesses are turn-
alties for the
                                                                                           ing to third-
treatment      and
                                                                                           party vendors
disposal of per-
                                                                                           to ensure com-
sonal identifying
                                                                                           pliance with the
                                                                                           respective laws.
which the Act
                                                                                           Such a decision
calls “consumer
                                                                                           requires      its           TEXAS IS THE LATEST
report informa-
                                                                                           own due dili-               STATE TO ENACT
tion.” The FCRA
                                                                                           gence to ensure
recognizes two                                                                                                         LEGISLATION
                                                                                           the     vendor’s
types of con-
                                                                                           capability and              REQUIRING
sumer reports -
                                                                                           understanding               BUSINESSES TO
“consumer       re-
                                                                             of the changes in both state
ports” and “investigative con-        staff to collect information,                                                    PROTECT THEIR
                                                                             and federal law.
sumer reports.” Only the              the collected information                                                        CUSTOMER
former is relevant to the             does not ordinarily constitute
topic of this article.                a consumer report under the                                                      INFORMATION
                                                                             For more information regard-
                                      Act.                                   ing this or other employment              MORE STRINGENTLY
                                      The disposal of such con-              business or employment law                SPECIFICALLY
A consumer report is gener-
                                      sumer report information,              issues, please contact Michael            OUTLAWING
ally a written or other com-
                                      however, must be done in               S .        B y r d        a t
munication of any information                                                                                          IDENTITY THEFT IN
                                      compliance with the Act’s     or
by a consumer reporting
                                      requirements.     Under the            (214) 560-1724.                           CONJUNCTION
agency that addresses a cus-
tomer’s creditworthiness,             Act, the business must use                                                       WITH CONGRESS’S
standing, capacity, character,        “reasonable measures” to
                                                                                                                       FAIR AND
reputation, personal charac-          avoid the access or use of the
                                      protected information. Ex-                                                       ACCURATE CREDIT
teristics or details of living
                                      amples of reasonable meas-                                                       TRANSACTIONS
                                                                                                                       ACT (FACT ACT).
Important Notice: The articles in this newsletter have been prepared by SettlePou for informational purposes
only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an
attorney-client relationship. Readers should not act upon this information without seeking professional counsel.

                                                                              Page 7

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