BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 251| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 251 Author: Calderon (D) Amended: 4/17/13 Vote: 21 SENATE INSURANCE COMMITTEE : 9-0, 4/24/13 AYES: Calderon, Gaines, Corbett, Correa, Knight, Lieu, Nielsen, Price, Roth SUBJECT : Insurance: notice: electronic transmission SOURCE : Association of California Insurance Companies DIGEST : This bill authorizes an insurer, with the consent of the policyholder, to transmit electronically, in lieu of mail, the offer of renewal required for personal auto, real and personal property, and liability insurance policies; the notice of conditional renewal for commercial insurance policies, and the offer of renewal and certain disclosures related to earthquake insurance so long as the insurer complies with the specified provisions of the Uniform Electronic Transactions Act (UETA) and additional procedures and standards. ANALYSIS : Existing law: 1.Authorizes any written notice required to be given or mailed to any person by an insurer relating to any insurance on risks or on operations in this state, unless excepted by Civil Code CONTINUED SB 251 Page 2 Sec. 1633.3, to be provided by electronic transmission if each party has agreed to conduct the transaction by electronic means, as provided. 2.Excepts from its provisions authorizing electronic delivery the offer of renewal required by Insurance Code Sec. 663 for personal automobile insurance and Insurance Code Sec. 678 for personal liability and property insurance; the notice of conditional renewal of certain types of commercial insurance required by Insurance Code Sec. 678.1; and the offer of coverage or renewal for earthquake insurance or any related disclosure required by Insurance Code Sec. 10086. 3.Prohibits residential property insurer's insurers from issuing or delivering property insurance without offering earthquake coverage prior to, concurrent with, or within 60 days following the issuance or renewal of a residential property insurance policy. 4.Authorizes an earthquake insurer, at any renewal, to modify the terms and conditions of an existing policy, rider, or endorsement, and that if the insurer modifies the terms and conditions of an existing policy, rider, or endorsement, the insurer is required to provide the insured with the renewal notice in a stand-alone disclosure document stating the changes in the terms and conditions of the insured's existing policy, rider, or endorsement. 5.Requires that before expiration of personal automobile insurance policy, an insurer shall deliver to or mail to the named insured, at the address shown on the policy, either a written or verbal offer of renewal of the policy at least 20 days before expiration or a written notice of nonrenewal of the policy at least 30 days before expiration. 6.Requires that at least 45 days prior to policy expiration of insurance covering loss or damage to specified real or personal property or covering personal legal liability, an insurer shall deliver to the named insured or mail to the named insured at the address shown in the policy, either of the following an offer of renewal of the policy stating any reduction of limits or elimination of coverage or a notice of nonrenewal of the policy. CONTINUED SB 251 Page 3 7.Provides that in the event an insurer fails to give the named insured either an offer of renewal or notice of nonrenewal: A. The existing policy, with no change in its terms and conditions, shall remain in effect for 45 days from the date that either the offer to renew or the notice of nonrenewal is delivered or mailed to the named insured. B. A notice to that effect shall be provided by the insurer to the named insured with the policy or the notice of renewal or nonrenewal. 1.Requires that if an insurer fails to give timely notice of the nonrenewal or conditional renewal, the policy of insurance shall be continued, with no change in its terms or conditions, for a period of 60 days after the insurer gives the notice. This bill: 1. Authorizes an insurer to send electronically offers of renewal and conditional renewal for automobile and specified property insurance if the insurer complies with specified requirements, including but not limited to: A. Confirming an insured's verbal consent to an offer or renewal in writing or electronically. B. Disclosing to the insured that disclosure by electronic transmission is voluntary. C. Disclosing that the insured can opt out of disclosure by electronic transmission at any time. D. Maintaining a process or system that can demonstrate that the offer, notice or disclosure provided by electronic transmission was both sent and received. The information retained is to be retrievable (for the life of the policy, plus five years) upon request by the Department of Insurance (DOI). E. Following one of three specified protocols when information is received that an offer, notice or disclosure sent by electronic transmission was not received by the insured. CONTINUED SB 251 Page 4 1. Authorizes the DOI to suspend an insurer from providing offers, notices, or disclosures by electronic transmission if there is a pattern or practices that demonstrate the insurer has failed to comply with the requirements of this bill. An insurer may appeal the suspension and resume its electronic transmission of offers, notices, or disclosures upon communication from the DOI that the changes the insurer made to its process or system to comply with the requirements of this bill are satisfactory. 2.Authorizes an insurer to send the renewal notice required to be made every other year and certain disclosures related earthquake insurance to be sent electronically, so long as the insurer complies with certain requirements in addition to those specified in UETA. 3.Deletes obsolete cross-references and make conforming changes. Background The National Conference of Commissioners on Uniform State Laws adopted the UETA Model Act in 1999 establishing a consistent interstate policy for electronic transactions. California enacted UETA that same year. In 2000, President Bill Clinton signed the Electronic Signatures in Global and National Commerce Act (ESIGN) (15 U.S.C. 7001 et seq.). Congress drafted ESIGN to apply to insurance and preempts any state law not substantially similar to the UETA Model Act. Forty-seven states have adopted some version of UETA. Generally speaking, UETA provides that any transaction not otherwise exempted from UETA may be conducted electronically subject to specific rules and standard. The major principles governing UETA are detailed in the Senate Insurance Committee analysis. The drafters of UETA and ESIGN designed the language to accommodate different types of existing and potential technology. ESIGN specifically preempts state laws that specifies alternative procedures or requirements of electronic records that accord "greater legal effect to, the implementation CONTINUED SB 251 Page 5 or application of specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures[.]" (15 U.S.C. 7002(a)(1)(2)(A)(ii)) Insurers may use any number of currently existing technologies, including email, facsimile, text messaging, or smartphone or tablet application. Smartphone or tablet applications are a potentially powerful and growing means that an insurer could communicate with consumers. AB 1708 (Gatto, Chapter 236, Statutes of 2012), provided, that a motorist may present digital proof of insurance to police during a traffic stop. In order to provide this service, a growing number of insurers have developed mobile applications that provide access to the digital proof of insurance, send the consumer notifications, offer access to coverage terms, assists in filing claims, etc. Although it is not clear if insurers have used mobile applications to provide mandatory notices pursuant to UETA yet, mobile apps function as a powerful tool for effective and confirmed delivery of these notices. Prior Legislation SB 1212 (R. Calderon, 2011-12), which died in Assembly Judiciary Committee, would have authorized an insurer to transmit electronically specified offers of renewal for automobile, property, or commercial insurance, as well as certain liability insurance, and notices related to earthquake coverage. AB 328 (C. Calderon, Chapter 433, Statutes 2009), authorized electronic transmission of certain notices that otherwise would require a mailing, upon agreement by the policyholder to receive the electronic communication, including notice of reasons for refusal to issue a good driver policy pursuant to Proposition 103, notice of the reasons for cancelling an automobile insurance policy, notice of the right of a homeowner to purchase earthquake coverage from or as arranged by the homeowner's insurer, or the proof of mailing this notice, and the standard residential property insurance disclosure that sets forth the various types of homeowners' insurance policies. SB 820 (Sher, Chapter 428, Statutes of 1999), enacted California's Uniform Electronic Transactions Act. CONTINUED SB 251 Page 6 FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/1/13) Association of California Insurance Companies (source) American Insurance Association Independent Insurance Agents and Brokers of California National Association of Mutual Insurance Companies Pacific Association of Domestic Insurance Companies Personal Insurance Federation of California State Farm Insurance Company OPPOSITION : (Verified 5/1/13) United Policyholders ARGUMENTS IN SUPPORT : The bill's sponsor, the Association of California Insurance Companies (ACIC), explains that SB 251 is a necessary public policy step as California and the rest of the nation continue to move towards electronic or paperless transactions. ACIC cites the 2012 US Auto Insurance Study by J.D. Powers and Associates that states: Among customers who utilize multiple contact channels to resolve an issue, 40% of Gen Y customers begin online, further underscoring their preference to seek answers to their questions via this channel. In contracts, the most frequent starting point for Boomers (born from 1946-1964), who have used multiple channels to resolve an issue, is their agent (40%). ACIC argues that California's current law is outdated to accommodate the Gen Y customer demand cited in that study. SB 251 gives Gen Y consumers the choice to "opt-in." ACIC also points out that California is only one of three states in the nation that continues to have a statute that expressly disallows insurers form providing notice or documents related to policy renewal or conditional renewal by electronic transmission. ARGUMENTS IN OPPOSITION : United Policyholders states that "nearly 90% of homes in California are uninsured for earthquake losses and believes that SB 251 will decrease the likelihood that homeowners will receive and accept the offer to buy CONTINUED SB 251 Page 7 earthquake insurance if the notice is only made electronically." They also express concerns that actual receipt of emailed documents can be compromised by: (1) SPAM blockers that filter out legitimate business messages; (2) the actions of people who change their email addresses or service providers but do not know who to notify the insurance company of their new email address; (3) technological problems, such as when a computer server is down when an important email message is sent; and (4) the real threat of computer viruses or scams that makes consumers reluctant to open emails from senders not immediately recognizable. AL:ej 5/3/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED