Senate Bill No. 234
Introduced By brooke, mahlum, halligan, bartlett, shea, doherty, squires, ellingson, franklin, sands
A Bill for an Act entitled: "An Act prohibiting discrimination against victims of abuse in all lines of insurance
for an independent cause of action; amending section 33-18-242, MCA; and providing an effective date."
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Unfair discrimination against victims of abuse prohibited. (1) An insurer, health
maintenance organization, or health service corporation may not
, in any manner, engage in an unfair discriminatory act or
practice UNFAIRLY DISCRIMINATE against a victim of abuse.
(2) For purposes of this section, "abuse" means the occurrence BETWEEN FAMILY MEMBERS, CURRENT OR FORMER HOUSEHOLD MEMBERS, OR INTIMATE PARTNERS of one or more of the following:
(a) purposely, knowingly, OR recklessly
, or negligently subjecting or attempting to subject another person, including a
minor child, to bodily injury, substantial SEVERE emotional distress, psychological trauma, sexual assault, or sexual
intercourse without consent; (b) purposely or knowingly engaging in a course of conduct toward another person that constitutes stalking in violation of
45-5-220; (c)(B) subjecting another person, including a minor child, to false imprisonment or unlawful restraint or confinement ; or. (d) purposely, knowingly, recklessly, or negligently causing or attempting to cause damage to property so as to intimidate
or attempt to control the behavior of another person, including a minor child.
(3) FOR PURPOSES OF THIS SECTION, "ABUSE" INCLUDES PURPOSELY OR KNOWINGLY ENGAGING IN A COURSE OF CONDUCT TOWARD A FAMILY MEMBER, CURRENT OR FORMER HOUSEHOLD MEMBER, OR INTIMATE PARTNER THAT CONSTITUTES STALKING IN VIOLATION OF 45-5-220.
(3)(4) The following acts, WHEN BASED ON THE INSURED'S STATUS AS A VICTIM OF ABUSE, are prohibited as
(a) denying, refusing to issue, renew, or reissue, canceling, or otherwise terminating an insurance policy, certificate of coverage DELIVERED OR ISSUED FOR DELIVERY IN MONTANA, subscriber contract, or health care services agreement;
(b) restricting or excluding coverage under an insurance policy or certificate DELIVERED OR ISSUED FOR DELIVERY IN MONTANA;
(c) adding a premium differential to any insurance policy or certificate DELIVERED OR ISSUED FOR DELIVERY IN MONTANA on the basis that the applicant or insured has been the victim of abuse; or
(d) excluding or limiting coverage for losses or denying a claim
incurred by an individual, insured, or participant as a result
of abuse on the basis of the individual's, insured's, or participant's status as a victim of abuse. (4)(5) An UPON WRITTEN REQUEST OF THE INSURED OR AN APPLICANT, AN insurer that takes an
UNDERWRITING action that adversely affects a victim of abuse on the basis of a medical condition OR PROPERTY OR
CASUALTY RISK that the insurer knows or has reason to know is related to abuse shall explain TO THE INSURED OR
APPLICANT IN WRITING the reason for its THE INSURER'S action to the applicant or insured in writing and must be
able to demonstrate that its action and any applicable policy provisions: (a) do not have the purpose or effect of treating abuse victim status as a medical condition or underwriting criterion; (b) are not based upon any actual or perceived correlation between a medical condition and abuse victim status; (c) are otherwise permissible by law and apply in the same manner and to the same extent to all applicants and insureds
with similar medical conditions or property and casualty risk without regard to whether the condition or claim is related to
abuse; and (d) are based on a determination made in conformance with sound actuarial principles and supported by actual or
reasonably anticipated experience that demonstrates a correlation between the medical condition or the type of property and
casualty risk and a material increase in insurance risk. (5) An applicant or insured claiming to be adversely affected by an act or practice of an insurer in violation of this section
may maintain an action against the insurer. Upon proof of a violation of this section, the court may award appropriate
relief, including temporary, preliminary, or permanent injunctive relief, compensatory and punitive damages, and costs
including reasonable attorney and expert witness fees.
(6) (a) This section does not prohibit an insurer from underwriting, classifying risk, or administering a contract of
insurance as otherwise allowed by law based on PROPERTY OR CASUALTY RISK OR medical information that the
or should know is related to abuse as long as the insurer underwrites, classifies risk, or administers the
contract of insurance on the basis of the applicant's or insured's PROPERTY OR CASUALTY RISK OR medical condition
and not on the applicant's or insured's status as a victim of abuse.
(b) This section does not prohibit or otherwise limit an insurer's ability to elicit information from or about an
APPLICANT or insured's medical history INSURED as otherwise provided by law.
(7) THIS SECTION MAY NOT BE CONSTRUED TO ALTER OR MODIFY ANY CONDITIONS, EXCLUSIONS, OR LIMITATIONS CLEARLY STATED IN AN INSURANCE POLICY OR CERTIFICATE DELIVERED OR ISSUED FOR DELIVERY IN MONTANA THAT ARE NOT OTHERWISE INCONSISTENT WITH THE PROVISIONS OF SUBSECTION (4).
(7)(8) AN INSURER MAY NOT BE HELD CIVILLY OR CRIMINALLY LIABLE FOR THE DEATH OF OR
PHYSICAL INJURY TO AN INSURED THAT IS RELATED TO ACTS OF ABUSE RESULTING FROM ANY
ACTION TAKEN IN A GOOD FAITH EFFORT TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION. Section 2. Section 33-18-242, MCA, is amended to read: "33-18-242. Independent cause of action -- burden of proof. (1) An insured or a third-party claimant has an
independent cause of action against an insurer for actual damages caused by the insurer's violation of subsection 33-18-201(1), (4), (5), (6), (9), or (13) of 33-18-201 or [section 1]. (2) In an action under this section, a plaintiff is not required to prove that the violations were of such frequency as to
indicate a general business practice. (3) An insured who has suffered damages as a result of the handling of an insurance claim may bring an action against the
insurer for breach of the insurance contract, for fraud, or pursuant to this section, but not under any other theory or cause of
action. An insured may not bring an action for bad faith in connection with the handling of an insurance claim. (4) In an action under this section, the court or jury may award such damages as were proximately caused by the violation
of subsection 33-18-201(1), (4), (5), (6), (9), or (13) of 33-18-201 or [section 1]. Exemplary damages may also be assessed
in accordance with 27-1-221. (5) An insurer may not be held liable under this section if the insurer had a reasonable basis in law or in fact for contesting
the claim or the amount of the claim, whichever is in issue. (6) (a) An insured may file an action under this section, together with any other cause of action that the insured has against
the insurer. Actions may be bifurcated for trial where when justice so requires. (b) A third-party claimant may not file an action under this section until after the underlying claim has been settled or a
judgment entered in favor of the claimant on the underlying claim. (7) The period prescribed for commencement of an action under this section is: (a) for an insured, within 2 years from the date of the violation of 33-18-201 or [section 1]; and (b) for a third-party claimant, within 1 year from the date of the settlement of or the entry of judgment on the underlying
claim. (8) As used in this section, an insurer includes a person, firm, or corporation utilizing self-insurance to pay claims made
NEW SECTION. Section 2. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 33, chapter 18, part 2, and the provisions of Title 33, chapter 18, part 2, apply to [section 1].
NEW SECTION. Section 3. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].
NEW SECTION. Section 4. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 6. Effective date. [This act] is effective July 1, 1997.