Bill Text: OR HB4136 | 2012 | Regular Session | Introduced
Bill Title: Relating to remedies for unlawful insurance practices; declaring an emergency.
Sponsorship: Partisan Bill (Democrat 13)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [HB4136 Detail]
Download: Oregon-2012-HB4136-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 235
House Bill 4136
Sponsored by Representative GREENLICK; Representatives BAILEY,
BUCKLEY, DEMBROW, FREDERICK, GELSER, HARKER, HOLVEY,
KENY-GUYER, KOMP, KOTEK, TOMEI, WITT (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Permits prosecuting attorney to investigate and prosecute suit
against insurer or other person that commits prohibited insurance
practices. Permits person to bring action against insurer or
other person that commits prohibited insurance practices. Directs
court to award attorney fees in certain circumstances. Allows
class actions against persons committing prohibited insurance
practices. Establishes one-year statute of limitations for
actions against persons committing prohibited insurance
practices.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to remedies for unlawful insurance practices; creating
new provisions; amending ORS 746.308, 746.612, 746.680, 746.685
and 819.014; repealing ORS 746.300 and 746.530; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 7 of this 2012 Act are added to
and made a part of ORS chapter 746. + }
SECTION 2. { + (1) A person who suffers an ascertainable loss
of money or property, real or personal, as a result of a practice
prohibited by this chapter committed by another person may bring
an individual action in an appropriate court to recover actual
damages or statutory damages of $200, whichever is greater. The
court or the jury, as the case may be, may award punitive
damages, and the court may provide the equitable relief the court
considers necessary and proper.
(2) The court may award reasonable attorney fees and costs at
trial and on appeal to a prevailing plaintiff in an action under
this section. The court may award reasonable attorney fees and
costs at trial and on appeal to a prevailing defendant only if
the court finds there was no objectively reasonable basis for
bringing the action or asserting the ground for appeal.
(3) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (2) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
(4) Actions brought under this section shall be commenced
within one year from the discovery of the prohibited practice.
(5) A class action may be maintained under this section. In a
class action under this section:
(a) Statutory damages under subsection (1) of this section may
be recovered on behalf of the class members only if the
plaintiffs in the action establish that the members have
sustained an ascertainable loss of money or property, real or
personal, as a result of a practice prohibited by this chapter
caused by the defendant;
(b) The trier of fact may award punitive damages; and
(c) The court may award equitable relief. + }
SECTION 3. { + For the purposes of sections 3 to 7 of this
2012 Act, 'prosecuting attorney' means the Attorney General or
the district attorney of a county in which a violation of this
chapter is alleged to have occurred. + }
SECTION 4. { + (1) When it appears to a prosecuting attorney
that a person is engaging in, has engaged in, or is about to
engage in any practice prohibited by this chapter, the
prosecuting attorney may execute in writing and cause to be
served an investigative demand upon any person who is believed to
have information, documentary material or physical evidence
relevant to the alleged or suspected violation. The investigative
demand shall require the person, under oath or otherwise, to
appear and testify, to answer written interrogatories or to
produce relevant documentary material or physical evidence for
examination, at a reasonable time and place as stated in the
investigative demand, concerning conduct of any practice that is
the subject matter of the investigation.
(2) At any time before the return date specified in an
investigative demand, or within 20 days after the demand has been
served, whichever period is shorter, a petition to extend the
return date, or to modify or set aside the demand, stating good
cause, including a request for privileged material, may be filed
in the appropriate court. + }
SECTION 5. { + Service of an investigative demand issued by a
prosecuting attorney under section 4 of this 2012 Act shall be
made personally within this state. If personal service within
this state cannot be made, substituted service of the
investigative demand may be made by any of the following methods:
(1) Personal service outside of this state;
(2) Mailing by registered or certified mail to the last-known
place of business, residence or abode within or outside of this
state of the person for whom the service is intended;
(3) For any person other than a natural person, in the manner
provided for service of summons in an action or suit; or
(4) Such service as the court may direct in lieu of personal
service within this state. + }
SECTION 6. { + (1) If any person, after being served with an
investigative demand under section 4 of this 2012 Act, fails or
refuses to obey an investigative demand issued by the prosecuting
attorney, the prosecuting attorney may, after notice, apply to an
appropriate court and, after a hearing, request an order:
(a) Granting injunctive relief to restrain the person from
engaging in conduct of any aspect of the practice that is
involved in the alleged or suspected violation; or
(b) Granting other relief as may be required, until the person
obeys the investigative demand.
(2) Disobedience of any final order of a court under this
section shall be punished as a contempt of court. + }
SECTION 7. { + (1) A prosecuting attorney who has probable
cause to believe that a person is engaging in, has engaged in, or
is about to engage in any practice prohibited by this chapter may
bring suit in the name of the State of Oregon in the appropriate
court to restrain the person from engaging in the alleged
violation.
(2)(a) Except as provided in subsections (5) and (6) of this
section, before filing a suit under subsection (1) of this
section, the prosecuting attorney shall notify in writing the
person charged of the alleged violation and the relief to be
sought. Notice shall be served in the manner set forth in section
4 of this 2012 Act for the service of investigative demands.
(b) The person charged shall have 10 days within which to
execute and deliver to the prosecuting attorney an assurance of
voluntary compliance. The assurance shall set forth what actions,
if any, the person charged intends to take with respect to the
alleged violation. The assurance of voluntary compliance may not
be considered an admission of a violation for any purpose.
(c) If the prosecuting attorney is satisfied with the assurance
of voluntary compliance, it may be submitted to an appropriate
court for approval and, if approved, shall then be filed with the
clerk of the court. If an approved assurance of voluntary
compliance provides for the payment of an amount of money, as
restitution or otherwise, and if the amount is not paid within 90
days of the date the court approves the assurance, or, if the
assurance of voluntary compliance requires periodic payments, any
periodic payment is not paid within 30 days of the date specified
in the assurance of voluntary compliance for any periodic
payment, then the prosecuting attorney may submit that portion of
the assurance of voluntary compliance to the court with a
certificate stating the unpaid balance in a form that fully
complies with the requirements of ORS 18.038 and 18.042. Upon
submission of an assurance of voluntary compliance under this
subsection, the court shall sign the assurance of voluntary
compliance and it shall be entered in the register of the court
and the clerk of the court shall note in the register that it
creates a lien. The assurance of voluntary compliance constitutes
a judgment in favor of the State of Oregon and may be enforced as
provided in ORS chapter 18. The notice of the prosecuting
attorney under this subsection is not a public record until the
expiration of 10 days from the service of the notice.
(3) The prosecuting attorney may reject as unsatisfactory any
assurance of voluntary compliance that:
(a) Does not contain a promise to make restitution in specific
amounts or through arbitration for persons who suffered any
ascertainable loss of money or property as a result of the
alleged violation; or
(b) Does not contain any provision, including but not limited
to the keeping of records, that the prosecuting attorney
reasonably believes to be necessary to ensure the continued
cessation of the alleged violation, if the provision was included
in a proposed assurance attached to the notice served pursuant to
this section.
(4) Violation of any of the terms of an assurance of voluntary
compliance that have been approved by and filed with the court
constitutes a contempt of court.
(5) The prosecuting attorney need not serve notice pursuant to
subsection (2) of this section before filing a suit if, within
two years of the filing of such suit, the person charged with the
alleged violation submitted to any prosecuting attorney an
assurance of voluntary compliance that was accepted by and filed
with an appropriate court. The prosecuting attorney shall in such
case serve notice on the defendant in the manner set forth in
section 4 of this 2012 Act for the service of investigative
demands, on the 10th or earlier day previous to the filing of
suit.
(6) If the prosecuting attorney alleges that the prosecuting
attorney has reason to believe that the delay caused by complying
with the provisions of subsection (2) or (5) of this section
would cause immediate harm to the public health, safety or
welfare, the prosecuting attorney may immediately institute a
suit under subsection (1) of this section.
(7) A temporary restraining order may be granted without prior
notice to the person if the court finds there is a threat of
immediate harm to the public health, safety or welfare. A
temporary restraining order expires by its terms within such time
after entry, not to exceed 10 days, as the court fixes, unless
within the time so fixed the order, for good cause shown, is
extended for a like period or unless the person restrained
consents that it may be extended for a longer period.
(8) The court may award reasonable attorney fees to the
prevailing party in an action under this section. If the
defendant prevails in the action and the court finds that the
defendant had in good faith submitted to the prosecuting attorney
a satisfactory assurance of voluntary compliance prior to the
institution of the suit or that the prosecuting attorney, in a
suit brought under subsections (5) and (6) of this section, did
not have reasonable grounds to proceed under those subsections,
the court shall award reasonable attorney fees at trial and on
appeal to the defendant. + }
SECTION 8. ORS 746.308 is amended to read:
746.308. An insurer that violates ORS 819.014 or 819.018 shall
be considered to have violated a provision of { - the Insurance
Code - } { + ORS chapter 746 + }.
SECTION 9. ORS 746.612 is amended to read:
746.612. { + Notwithstanding section 2 of this 2012 Act, + }
nothing in ORS 746.607 may be construed to create a new private
right of action against a health insurer.
SECTION 10. ORS 746.680 is amended to read:
746.680. { + Notwithstanding section 2 of this 2012 Act: + }
(1) A person whose rights granted under ORS 746.607 (7),
746.640, 746.645 or 746.650 are violated may apply to the circuit
court for the county in which the person resides, or any other
court of competent jurisdiction, for appropriate equitable relief
if an insurer, insurance producer or insurance-support
organization fails to comply with ORS 746.607 (7), 746.640,
746.645 or 746.650.
(2) A licensee or insurance-support organization that discloses
information in violation of ORS 746.665 or a health insurer that
uses or discloses information in violation of ORS 746.607 (1) or
(2) is liable for damages sustained by the individual about whom
the information relates. However, an individual is not entitled
to a monetary award that exceeds the actual damages sustained by
the individual as a result of the violation of ORS 746.607 (1) or
(2) or 746.665.
(3) In any action brought pursuant to this section, the court
may award the cost of the action and reasonable attorney fees to
the prevailing party.
(4) An action under this section must be brought within two
years from the date the alleged violation is or should have been
discovered.
(5) Except as specifically provided in this section, there
shall be no remedy or recovery available to individuals, in law
or in equity, for occurrences constituting a violation of any
provision of ORS 746.600 to 746.690.
SECTION 11. ORS 746.685 is amended to read:
746.685. { + Notwithstanding section 2 of this 2012 Act or
sections 3 to 7 of this 2012 Act, + } no cause of action in the
nature of defamation, invasion of privacy or negligence shall
arise against any person for disclosing personal or privileged
information in accordance with ORS 746.600 to 746.690 and
750.055, nor shall such a cause of action arise against any
person for furnishing personal or privileged information to an
insurer, insurance producer or insurance-support organization.
However, this section shall provide no immunity for disclosing or
furnishing false information with malice or willful intent to
injure any person.
SECTION 12. ORS 819.014 is amended to read:
819.014. (1) An insurer commits the offense of insurer failure
to follow procedures for a totaled vehicle if the insurer
declares that the vehicle is a totaled vehicle and does not:
(a) Obtain the certificate of title from the owner of the
vehicle as a condition of settlement of the claim and surrender
it to the Department of Transportation within 30 days of its
receipt; or
(b) If the insurer does not obtain the certificate from the
registered owner, notify the department that the vehicle is a
totaled vehicle within 30 days of declaring it to be so, or
taking title to or possession of it, and notify the registered
owner of the vehicle that the registered owner must surrender the
certificate to the department and must notify any subsequent
purchaser that the vehicle is a totaled vehicle.
(2) If the vehicle is one for which title was issued in a form
other than a certificate, the insurer shall notify the department
that the vehicle is a totaled vehicle and shall follow procedures
adopted by the department by rule.
(3) The offense described in this section, insurer failure to
follow procedures for a totaled vehicle, is a violation of
{ - the Insurance Code - } { + ORS chapter 746 + }, as
provided in ORS 746.308.
SECTION 13. { + ORS 746.300 and 746.530 are repealed. + }
SECTION 14. { + Sections 2 to 7 of this 2012 Act, the
amendments to ORS 746.308, 746.612, 746.680, 746.685 and 819.014
by sections 8 to 12 of this 2012 Act and the repeal of ORS
746.300 and 746.530 by section 13 of this 2012 Act apply to all
practices prohibited by ORS chapter 746 committed on or after the
effective date of this 2012 Act. + }
SECTION 15. { + This 2012 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2012 Act takes effect on
its passage. + }
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