BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 1131       Hearing Date:    July 8,  
          2015
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          |Author:    |Dababneh                                             |
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          |Version:   |June 29, 2015    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Hugh Slayden                                         |
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                    Subject:  Insurance: electronic transmission.


           SUMMARY     Permits life insurance carriers, agents and brokers to send  
          documents and conduct transactions related to life insurance and  
          annuities electronically.

           
            DIGEST
            
          Existing law


            1)  Codifies the Uniform Electronic Transactions Act (UETA)  
              which provides that a record or signature cannot be denied  
              legal effect or enforceability because it is in electronic  
              form provided that the transaction complies with specified  
              standards and principles.


           2)  Exempts types of transactions or classes of records related  
              to specified Insurance Code sections from being conducted  
              under UETA.
           

          This bill

            1)  Applies UETA to the following:









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               a.     Notices included or attached to individual policies  
                 or annuities that disclose the period in which the  
                 applicant has the right to return the policy without  
                 penalty ("free look period") (Ins. Code §§ 786, 10127.7,  
                 10127.9, 10127.10.)


               b.     A notice of premium increase for individual  
                 policies. (Ins. Code § 10113.7.)


               c.     Notices and signed statements regarding replacement  
                 policies and annuities. (Ins. Code §§ 10509.4 and  
                 10509.7.)


           2)  Defines "licensee" as an insurer, agent, broker, or any  
              other person who is required to be licensed by California  
              Department of Insurance (CDI).


           3)  Requires the licensee to document the consumer's consent to  
              engage in electronic transactions, as specified, and retain  
              documentation while the policy is in force and at least five  
              years thereafter.


           4)  Requires a licensee to disclose to the consumer the  
              following:


               a)     The option to receive records electronically is  
                 voluntary.


               b)     The consumer may opt-out at any time and a  
                 description of the opt-out process.


               c)     A description of the documents to be received  
                 electronically.


               d)     The process to change the consumer's email address.








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               e)     The licensee's contact information, including phone  
                 number and Internet Web site address.


           5)  Requires the licensee to provide, upon request of the  
              consumer, a hard copy of any life insurance document free of  
              charge once per year.


           6)  Requires that the consumer's email address be placed on the  
              consent disclosure and, if provided, an annual statement.


           7)  Prohibits charging a fee or offering a discount based on a  
              consumer's willingness to accept electronic documents.


           8)  Requires the licensee to confirm the email address of any  
              consumer who elected to receive life insurance documents  
              electronically if more than 12 months have elapsed since the  
              last electronic communication with the consumer.


           9)  Requires the insurer to follow-up with the consumer within  
              five business days, as specified, if the licensee receives  
              information that the record was not received.


           10) Establishes that the following records, if not excluded  
              from UETA, may be sent electronically if not otherwise  
              prohibited by law:


               a)     Records sent by first class or regular mail. 


               b)     Records not subject to a particular delivery method.


               c)     Records sent in compliance with the Insurance  
                 Information and Privacy Protection Act (Ins. Code §§  
                 Section 791 et seq.) 








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           11) Establishes that the following records, if not excluded  
              from UETA, may be sent electronically if not otherwise  
              prohibited by other law if the licensee maintains a system  
              or process that can demonstrate actual receipt of a  
              document:


               a)     Records sent by registered or certified mail. 


               b)     Records sent by any method requiring return receipt  
                 or signed written receipt of delivery, or other method of  
                 delivery evidencing actual receipt by the person.  


               c)     Notices of termination or nonrenewal.


           12) Provides that acceptable proof of actual receipt includes  
              any of the following:


               a)     An electronic receipt returned by the consumer or  
                 electronic signature executed by the consumer.


               b)     A confirmation receipt or some other evidence that  
                 the person received the email in his or her email account  
                 and opened the email.


               c)     Evidence demonstrating that the person logged onto  
                 the licensee's secure Internet Web site and downloaded,  
                 printed, or otherwise acknowledged receipt of the record.


           13) Provides that even if a life insurance transaction is  
              excluded from UETA by Section 1633.3(b)(4) of the Civil Code  
              (documents that must be separately signed), any statutory  
              requirement for a separate acknowledgment, signature, or  
              initial may be transacted using an electronic signature or  
              by electronic transaction, so long as the requirement is not  








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              specifically excluded from UETA by Civil Code Section  
              1633(c) and the licensee complies with all applicable  
              provisions of this bill. 


           14) Requires the licensee to send a hardcopy of any document  
              for which a written acknowledgment of receipt is required if  
              the licensee cannot demonstrate that the electronic document  
              was actually received.


           15) Requires the Insurance Commissioner (IC) to report to the  
              Governor and the Legislature regarding the impact and  
              implementation of the bill on or before January 1, 2020.


           16) Permits CDI to suspend the authority of a licensee to  
              transmit life insurance records electronically if CDI can  
              establish a pattern or practice that demonstrates a lack of  
              compliance with the provisions of this bill.


           17) Sunsets the bill effective January 1, 2021.


          COMMENTS
           
          1.  Purpose of the bill   According to the author, AB 1131 will  
              further modernize California's electronic commerce  
              ("e-commerce") law for life insurance and annuities which  
              are otherwise authorized pursuant to California's version of  
              the UETA, the California Insurance Code, and the federal  
              ESIGN framework. Specifically, this bill will allow certain  
              insurers to transact specified insurance related business  
              electronically in lieu of mailing them with the prior opt-in  
              consent of the consumer so long as the insurer complies with  
              the specified provisions of state and federal law and  
              additional procedures and standards.  

           2.  Background   Every day, countless electronic transaction  
              occur via email, facsimile, smart phone applications, web  
              pages, and other digital forums.  The technology works  
              behind the scenes to facilitate contracts, sales, and other  
              commercial activity, but it is the law that makes agreements  








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              "real" and enforceable.  Some types of agreements are only  
              enforceable if they are in writing.  Not too long ago,  
              "writing" meant ink and paper and it was not clear whether  
              the law recognized agreements formed and memorialized  
              electronically.

              In 1999, the National Conference of Commissioners on Uniform  
              State Laws (NCCUSL) adopted the model UETA to establish  
              consistent interstate rules for electronic transactions.  SB  
              820 (Sher), Chapter 428, Statutes of 1999, enacted  
              California's version of UETA almost immediately afterward.   
              The following year, Congress enacted the Electronic Records  
              and Signatures in Global and National Commerce Act (ESIGN),  
              in part, to encourage the states to adopt UETA in its  
              broadest form and facilitate e-commerce among the states.   
              ESIGN's preemption provisions bind states that fail to adopt  
              UETA or laws similar to it; ESIGN's practical effect is to  
              establish UETA as the universal standard.  

              Back in 1999, many consumers lacked access to, and  
              understanding of e-commerce, and electronic delivery was  
              seen as unreliable.  This led to California adopt numerous  
              exceptions to UETA, including many insurance-related  
              documents.  Since then, the growing use of electronic  
              devices has made e-commerce inevitable.  Many consumers have  
              grown to depend on its flexibility and portability.  In  
              fact, postal mail might serve some consumers poorly,  
              including students, frequent travelers, and others who "live  
              away from home."

              Both UETA and ESIGN establish the fundamental principle that  
              a record or signature cannot be denied legal effect or  
              enforceability because it is in electronic form if both  
              parties agree.  This means that, with some exceptions, if  
              the parties agree to use an electronic format involving a  
              transaction that requires something "in writing," the law  
              will treat the electronic format as if it occurred using  
              hardcopy (provided UETA standards are met).  This bill  
              addresses some of the exceptions specific to life insurance.

              Uniform Electronic Transactions Act.  UETA establishes  
              ground rules for parties engaging in e-commerce.  The most  
              important rule is that engaging in electronic forms is  
              voluntary.  This rule allows the consumer to weigh the  








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              benefits and risks of engaging in e-commerce and choose what  
              is best for them based on their lifestyle and experience.
              
              UETA also recognizes that the underlying law might treat  
              certain transactions with special consideration.  For  
              instance, UETA leaves undisturbed provisions that call for a  
              document to be sent within 30 days or specified formatting  
              rules (such as a 12-point font).  But UETA does not impose  
              obligations on either party greater than that imposed by the  
              underlying law and specifically provides that a record may  
              be received even if no individual is aware of its receipt.   
              The NCCUSL drafting committee of UETA explains: "As in the  
              paper world, obligations to send do not impose any duties on  
              the sender to assure receipt, other than reasonable methods  
              of dispatch."  (Uniform Electronic Transactions Act (1999)  
              with Prefatory Note and Comments, Comments to Section 3, p.  
              19.)

              Still, some concepts from the paper world do not translate  
              easily into the digital.   For instance, UETA must provide  
              default definitions of "send" and "receive."  The UETA  
              drafting committee explains that to be "sent" under UETA,  
              the electronic information must be properly addressed or  
              otherwise directed to the recipient (a general broadcast  
              message would not suffice).  The record will be considered  
              sent once it leaves the control of the sender or comes under  
              the control of the recipient.  Records sent through e-mail  
              or the Internet will pass through many different server  
              systems; when more than one system is involved the sender  
              must lose control of the document.  A record is "received"  
              when it enters the system which the recipient has designated  
              or uses and to which it has access, in a form capable of  
              being processed by that system.  In other words, the system  
              designated by the recipient receives that document, but,  
              just like standard mail, recipients may not know it until  
              they check their mailbox.

              Insurance E-commerce.  Since so many insurers cross state  
              lines, consistent e-commerce rules play an important role in  
              the industry.  Although federal law usually respects  
              state-based insurance regulation, Congress specifically  
              intended ESIGN to apply to insurance.  There is evidence to  
              suggest that the insurance industry as a whole tends to use  
              good practices that increase the reliability of e-delivery,  








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              especially email, such as monitoring "undeliverable" emails,  
              coordinating with email providers to avoid spam filtering,  
              and taking active measures to ensure that contact  
              information is accurate.  Return Path studies inbox  
              placement rates and measures how frequently commercial email  
              reaches the inbox rather than spam folder or just  
              disappears.  In its Inbox Placement Benchmark Report 2014,  
              Return Path estimates general inbox placement rates for the  
              U.S.A. at 87%, but a placement rate of 92% for the insurance  
              industry as a whole (the rate is higher when counting actual  
              junk mail properly delivered to a spam folder).
              
              Nonetheless, insurers cannot control many of the factors  
              that might make e-delivery problematic, such as whether the  
              recipient's information system provides accurate delivery  
              feedback.  For this reason, insurance legislation applying  
              UETA to insurance transactions tends to focus on reinforcing  
              consumer consent requirements, providing detailed  
              disclosures, and encouraging best practices.

              While UETA establishes the legal effect of an electronic  
              document, two bills, Chapter 433, Statutes 2009 (AB 328, C.  
              Calderon) and Chapter 369, Statutes of 2013 (SB 251, R.  
              Calderon) established specific procedural and substantive  
              guidelines.  These bills set up differing sets of  
              obligations based on whether a document merely provides  
              information for future reference or whether the information  
              may prompt the insured to act.  

              AB 328 authorized electronic transmission of  
              informational-only type documents such as the notice of  
              reasons for refusal to issue a good driver policy, notice of  
              the reasons for cancelling an automobile insurance policy,  
              and others.  Pursuant to AB 328, an affidavit of the person  
              who sent the record stating the relevant facts provides  
              satisfactory evidence that the record was mailed, for the  
              purposes of the Insurance Code, absent evidence to the  
              contrary.  The affidavit establishes an evidentiary  
              presumption similar to the evidentiary "mailbox rule" (if  
              mail is given to the U.S. Postal service, it is presumed to  
              be delivered).  But AB 328 also prohibits insurers from  
              engaging in willful ignorance by imposing an obligation on  
              the insurer to monitor whether the record was sent as  
              defined by UETA.  The additional obligation only impacts the  








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              legal effect of the record if the insurer receives  
              information that the record was not, in fact, sent.  

              SB 251 authorized insurers to transmit electronically more  
              sensitive documents that could impact a consumer's legal  
              rights, including offers of renewal for property and  
              casualty lines that may involve changes to the policy.   
              Along with heightened requirements to document and obtain  
              consent, SB 251 requires an insurer to maintain a process or  
              system that can demonstrate that the document was both sent  
              and received, as defined under UETA, by the information  
              system designated by the consumer.  The insurer must  
              follow-up within two business days if it has a reason to  
              believe that the message was not received.  Again, an  
              affidavit that the document was sent creates a presumption  
              that the document was properly mailed.  But here the  
              affidavit may be even more important because many  
              information systems, such as email services, used by  
              consumers do not provide feedback on receipt.  Without the  
              affidavit, the insurer might have to prove receipt using  
              information it might not be able to obtain; such a burden  
              exceeds the requirements of underlying law, is inconsistent  
              with UETA, and may be preempted under ESIGN (which only  
              requires acknowledgment or verification if the substantive  
              law does as well).  In the absence of feedback, SB 251  
              establishes a presumption that the record was properly sent  
              using the affidavit, unless the insurer receives information  
              to the contrary.  But it also requires the insurer to  
              actively monitor the status of delivery and follow-up if  
              necessary.  Consistent with UETA, SB 251 does not require  
              insurers to assure delivery, but it does not permit an  
              insurer to send a record and avoid or ignore potential  
              warning signs that the record was not delivered.

              SB 251 also added new consumer protections that have been  
              mirrored in AB 1131.  The insurer must:


                   Include the insured's email address on the policy  
                declaration page.


                   Provide one printed copy of any of the documents free  
                of charge every year upon request.








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                   Retain documentation related to the transaction while  
                the policy is in force and for five years thereafter.  


              SB 251 also authorizes CDI to suspend the insurer from  
              sending certain documents electronically if there is a  
              pattern or practice that demonstrates the insurer has failed  
              to comply with applicable requirements.

          E-delivery of Life Insurance.  Unlike prior insurance-related  
          e-commerce bills, this bill addresses life insurance only and  
          establishes standards for most, if not all, life insurance  
          transactions.  Life insurance is a long-time commitment that may  
          involve significantly more premium over the life of the policy  
          when compared to other types of coverage.  Also, unlike, auto or  
          homeowner's insurance, consumers do not switch carriers as  
          frequently.  

              This bill applies UETA to the following documents: 


                   A notice of premium increase for individual policies  
                that must be delivered or mailed.


                   Notices and statements requiring the signature of  
                either the applicant or agent related to replacement  
                policies or annuities.


                   Life insurance policies and notices related to the  
                "free look period" that must be mailed or delivered with  
                proof of delivery (such as certified or registered mail).


                   Notices and transactions pursuant to the Insurance  
                Information and Privacy Protection Act 

              Consistent with UETA and ESIGN, this bill imposes duties for  
              electronic delivery based on the delivery method assigned by  
              substantive law.  If a transaction or record, not excluded  
              from UETA, is required to be sent by first class mail,  








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              regular mail, or if substantive law does not provide for a  
              particular delivery method, the record may be sent  
              electronically so long as it complies with UETAs standards.   
              No additional procedures apply, including those provided in  
              AB 328 and SB 251.

              Under this bill, if a record must be sent by certified or  
              registered mail, the insurer must obtain proof of "actual  
              receipt" to verify that the document was delivered and  
              specifies the type of evidence necessary to show compliance:


                   The person acknowledges receipt by returning an  
                electronic receipt or by executing an electronic  
                signature.


                   The record is made part of, or attached to, an email  
                sent to the email address and there is a confirmation  
                receipt or some other evidence that the person received  
                and opened the email.


                   The record is posted on the Internet Web site, and  
                there is evidence demonstrating that the person logged  
                onto the site and downloaded, printed, or otherwise  
                acknowledged receipt.

              These standards deviate from UETA and ESIGN to the extent an  
              insurer must monitor responses by the consumer beyond  
              acknowledging receipt.  However, the heightened standards  
              reflect the challenges of finding electronic delivery  
              equivalents to certified and registered mail.  This raises  
              the issue of whether automatically generated delivery  
              receipts equivalent to paper delivery receipts signed by a  
              human being.

              Only one transaction has been identified that requires  
              acknowledgment and would be subject to this provision.  Most  
              Insurance Code provisions involving registered or certified  
              mail apply to the IC or a consumer, but current law requires  
              an insurer to deliver life policies to the owner in order to  
              start the "free look" period using a method providing proof  
              of delivery.  However, this bill also treats notices of  








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              termination or nonrenewal with the same care as documents  
              sent by certified or registered mail.  While inconsistent  
              with the underlying mailing requirement, even ESIGN does not  
              apply to notices of termination.  Given the importance of  
                                                     the documents, these enhanced standards could be viewed as  
              consistent with national standards.

           1.  Support   The Association of California Life and Health  
              Insurance Companies explains that this bill will help  
              modernize California law to more clearly allow consumers to  
              receive and sign life insurance documents electronically.

           2.  Opposition  

              None received
           
          3.  Questions   This bill is double-referred to the Committee on  
              Judiciary.  Adoption of committee amendments may  
              unintentionally prejudice the bill given the upcoming  
              legislative deadlines.  However, while this bill moves  
              forward, the author may wish to consider the following.


                   This bill characterizes the effects of Civil Code  
                Sections 1633.3 and 1633.8 as "prohibiting" electronic  
                transactions.  Should these references be revised to read  
                that the effect of these sections is to "exclude  
                application of UETA" since UETA does not prohibit any type  
                of electronic transaction, but might leave the underlying  
                delivery method place based on those Civil Code sections?   
                (See proposed Ins. Code § Section 38.6(b)(6) and (7) and  
                (d).)


                   This bill addresses several contemporary forums of  
                e-commerce, but not all.  Should relevant language be  
                revised to allow for more flexibility related to evolving  
                technologies?  For example, should language that refers to  
                a website be modified to include a cell phone or tablet  
                application?  (See proposed Ins. Code § Section  
                38.6(b)(7)(C).)


           








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           POSITIONS
           
          Support
           
          Association of California Life and Health Insurance Companies  
          (sponsor)
          Department of Insurance (sponsor)
          American Council of Life Insurers
           
          Oppose
               
          None received

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