BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1131 (Dababneh)
          Version: June 29, 2015
          Hearing Date: July 14, 2015
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                         Insurance:  electronic transmission

                                      DESCRIPTION  

          This bill, until January 1, 2021, would authorize an insurer,  
          agent, broker, or any other person required to be licensed by  
          the California Department of Insurance, to send individual life  
          insurance and annuity records by electronic transmission.  This  
          bill would expand the scope of electronic notice provisions  
          under the California Uniform Electronic Transactions Act (UETA)  
          by allowing the above licensees to send a life insurance or  
          annuity written record by electronic transmission, if not  
          specifically excluded under UETA, and if the licensee meets  
          specified requirements.  This bill would also require the  
          Insurance Commissioner to submit a report, as specified.

                                      BACKGROUND  

          In 1999, based on the model law proposed by the National  
          Conference of Commissioners on Uniform State Laws (NCCUSL) to  
          set rules by which electronic commerce may be conducted across  
          the country, California enacted the Uniform Electronic  
          Transactions Act (UETA).  (SB 820 (Sher, Ch. 428, Stats. 1999).)  
           One of the critical motivators for enacting a law validating  
          electronic records was the Statute of Frauds, which requires  
          that certain contracts be in writing.  

          In California, the Statute of Frauds is codified at Section 1624  
          of the Civil Code, which expressly states that certain contracts  
          are invalid (i.e. unenforceable) unless they, or some note or  








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          memorandum thereof, are in writing and subscribed by the party  
          to be charged or by the party's agent.  Such contracts include,  
          for example, an agreement that by its terms is not to be  
          performed within a year from the making thereof; an agreement  
          for the leasing for a longer period than one year, or for the  
          sale of real property, or of an interest therein; or specified  
          contracts, promises, undertakings, or commitments to loan money  
          or to grant or extend credit, in an amount greater than  
          $100,000.

          California's UETA provides that a record or signature may not be  
          denied legal effect or enforceability solely because it is in  
          electronic form, that a contract may not be denied legal effect  
          or enforceability solely because an electronic record was used  
          in its formation, and that an electronic record or signature  
          satisfies a requirement in the law that a record be in writing  
          or a signature be affixed or if a law provides consequences if  
          there is no record or signature.  

          UETA, however, does not apply to all contracts.  For example,  
          expressly excluded from UETA are transactions that are subject  
          to a law governing the creation and execution of wills,  
          codicils, or testamentary trusts; specified transactions in the  
          Uniform Commercial Code, that were specifically drafted in  
          consideration of electronic records; and transactions subject to  
          a law that requires that specifically identifiable text or  
          disclosures in a record or a portion of a record be separately  
          signed, including initialed, from the record (such as real  
          estate transactions).

          Various specified insurance transactions are prohibited from  
          UETA.  However, beginning in 2009, specific insurance  
          transactions were removed from UETA's prohibited statute list,  
          thereby authorizing these transactions to be made  
          electronically.  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'  







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          insurance policies.

          Then in 2013, SB 251 (Calderon, Chapter 369, Statutes of 2013)  
          removed from the prohibited statutes list under UETA and  
          authorized electronic transmission of certain notices pertaining  
          to workers' compensation insurance, 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 UETA and  
          additional procedures and standards.  SB 251 requires the  
          Department of Insurance to submit a report, on or before January  
          1, 2018, to the Governor and to the Committees of the Senate and  
          Assembly having jurisdiction over insurance and the judiciary,  
          regarding the impact and implementation of the authorization of  
          the electronic transmission of certain insurance renewal offers,  
          notices, or disclosures, as specified.  SB 251 sunsets on  
          January 1, 2019.

          This bill now seeks to permit the electronic transmission of  
          specified records related to individual life insurance and  
          annuity contracts, as specified.

          This bill was heard by the Senate Insurance Committee on July 8,  
          2015, and was approved by a vote of 8-0.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the Electronic Signatures in Global and  
          National Commerce Act (E-SIGN), generally provides for the  
          transmission of electronic signatures, but does not apply to a  
          contract or other record that is governed by:  (1) a statute,  
          regulation, or other rule of law governing the creation and  
          execution of wills, codicils, or testamentary trusts; (2) a  
          state statute, regulation, or other rule of law governing  
          adoption, divorce, or other matters of family law; or (3) the  
          Uniform Commercial Code, as in effect in any State, as  
          specified.  (15 U.S.C. Secs. 7001, 7003(a).)

           Existing federal law  also excludes the following specific  
          transactions from electronic transmission:  (1) court orders or  
          notices, or official court documents (including briefs,  
          pleadings, and other writings) required to be executed in  
          connection with court proceedings; (2) any notice of (A) the  







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          cancellation or termination of utility services (including  
          water, heat, and power), (B) default, acceleration,  
          repossession, foreclosure, or eviction, or the right to cure,  
          under a credit agreement secured by, or a rental agreement for,  
          a primary residence of an individual, (C) the cancellation or  
          termination of health insurance or benefits or life insurance  
          benefits (excluding annuities), or (D) recall of a product, or  
          material failure of a product, that risks endangering health or  
          safety; or (3) any document required to accompany any  
          transportation or handling of hazardous materials, pesticides,  
          or other toxic or dangerous materials.  (15 U.S.C. Sec.  
          7003(b).)
           
          Existing law  , the Uniform Electronic Transactions Act (UETA),  
          generally authorizes the transaction of business, commerce and  
          contracts by electronic means.  (Civ. Code Sec. 1633.1.)  UETA  
          does not apply to transactions that are subject to certain laws,  
          such as laws governing the creation and execution of wills,  
          codicils, or testamentary trusts.  (Civ. Code Sec. 1633.3(a).)   
          In addition, UETA does not apply to specific transactions  
          described under various statutes, including:
           notices that disclose the period in which the applicant has  
            the right to return the policy without penalty ("free look  
            period") included or attached to the following:
              o    individual and group disability insurance policies and  
               certificates, and all group life insurance or annuity  
               policies and certificates offered for sale to individuals  
               age 65 or older in California (under Ins. Code Sec. 786);
              o    individual life insurance policies with a face value of  
               $10,000 or less (under Ins. Code Sec. 10127.7);
              o    individual life insurance policies issued on and after  
               January 1, 1990 (under Ins. Code Sec. 10127.9); and
              o    individual life insurance and individual annuity  
               contracts that are initially delivered or issued for  
               delivery to a senior citizen in California on and after  
               July 1, 2004 (under Ins. Code Sec. 10127.10);
           a notice of premium increase for individual life insurance  
            policies (Ins. Code Sec. 10113.7); and
           notices and signed statements regarding replacement life  
            insurance and annuity policies (under Ins. Code Secs. 10509.4,  
            10509.7).  (Civ. Code Sec. 1633.3(b).)

           Existing law  provides that UETA applies only to a transaction  
          between parties each of which has agreed to conduct the  
          transaction by electronic means, as specified.  (Civ. Code Sec.  







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          1633.5(b).)

          Existing law  provides that, except as otherwise provided in  
          UETA, the effect of any of its provisions may be varied by  
          agreement.  (Civ. Code Sec. 1633.5(d).)

           Existing law  sets forth certain principles governing the legal  
          effect of conducting transactions electronically as follows: 
           a record or signature may not be denied legal effect or  
            enforceability solely because it is in electronic form;
           a contract may not be denied legal effect or enforceability  
            solely because an electronic record was used in its formation;
           if a law requires a record to be in writing, an electronic  
            record satisfies the law; and
           if a law requires a signature, an electronic signature  
            satisfies the law.  (Civ. Code Sec. 1633.7.)
           
          Existing law  provides that an electronic record or electronic  
          signature is attributable to a person if it was the act of the  
          person, which may be shown in any manner, including a showing of  
          the efficacy of any security procedure applied to determine the  
          person to which the electronic record or electronic signature  
          was attributable.  (Civ. Code Sec. 1633.9(a).)

           Existing law  provides that the effect of an electronic record or  
          electronic signature attributed to a person is determined from  
          the context and surrounding circumstances at the time of its  
          creation, execution, or adoption, including the parties'  
          agreement, if any, and otherwise as provided by law.  (Civ. Code  
          Sec. 1633.9(b).)

           Existing law  only applies to a transaction that all parties have  
          agreed to conduct electronically.  (Civ. Code Sec. 1633.5(b).)   
          Existing law provides that agreement is determined from the  
          context and surrounding circumstances, including the parties'  
          conduct.  (Id.)  Except for a separate and optional agreement  
          whose primary purpose is to authorize a transaction to be  
          conducted electronically, an agreement to conduct a transaction  
          by electronic means may not be contained in a standard form  
          contract that is not an electronic record.  (Id.)  An agreement  
          in such a standard form contract may not be conditioned on an  
          agreement to conduct transactions by electronic means.  (Id.)   
          Further, an agreement to conduct a transaction electronically  
          may not be inferred solely from the fact that a party has used  
          electronic means to pay an account or register a purchase or  







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          warranty.  (Id.)  Existing law provides that these provisions  
          may not be varied by agreement.  (Id.)

           Existing law  allows a party that agrees to conduct a transaction  
          electronically to refuse to conduct other transactions by  
          electronic means.  (Civ. Code Sec. 1633.5(c).)  If a seller  
          sells goods or services by both electronic and non-electronic  
          means and a buyer purchases the goods or services by conducting  
          the transaction electronically, the buyer may refuse to conduct  
          further transactions regarding the goods or services by  
          electronic means.  (Id.)  Existing law provides that these  
          provisions may not be varied by agreement.  (Id.)

           Existing law  provides that a party to an agreement to conduct a  
          transaction electronically may satisfy a law requiring that  
          information be provided, sent, or delivered by one person to  
          another in writing by providing, sending, or delivering the  
          information in an electronic record capable of retention by the  
          recipient at the time of receipt.  (Civ. Code Sec. 1633.8(a).)   
          Existing law provides that an electronic record is not capable  
          of retention by the recipient if the sender or its information  
          processing system inhibits the ability of the recipient to print  
          or store the electronic record.  (Id.)

           Existing law  provides that if a law other than UETA requires  
          that a notice of the right to cancel be provided or sent, an  
          electronic record may not substitute for a writing under that  
          other law unless, in addition to satisfying the requirements of  
          that other law and UETA, the notice of cancellation may be  
          returned by electronic means.  (Civ. Code Sec. 1633.16.)   
          Existing law provides that this provision may not be varied by  
          agreement.  (Id.)

           Existing law  provides for the issuance of life insurance, which  
          includes insurance upon the lives of persons or appertaining  
          thereto, and the granting, purchasing, or disposing of  
          annuities.  (Ins. Code Sec. 101.)

           Existing law  , the Insurance Information and Privacy Protection  
          Act (IIPPA), requires insurers to send specified privacy notices  
          to insurance policy holders in writing with all of the following  
          information:
           whether personal information may be collected from persons  
            other than the individual or individuals proposed for  
            coverage;







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           the types of personal information that may be collected and  
            the types of sources and investigative techniques that may be  
            used to collect such information;
           the types of disclosures to additional parties, as specified,  
            and the circumstances under which the disclosures may be made  
            without prior authorization, except that only those  
            circumstances need be described which occur with such  
            frequency as to indicate a general business practice;
           a description of the rights to access, correct, or delete  
            recorded personal information about the individual and the  
            manner in which the rights may be exercised; and
           that information obtained from a report prepared by an  
            insurance-support organization may be retained by the  
            insurance-support organization and disclosed to other persons.  
             (Ins. Code Sec. 791.04(b).)

           Existing law  , in lieu of the above notice, authorizes the  
          insurance institution or agent to provide an abbreviated notice  
          informing the insurance applicant or policyholder of the  
          following:
           personal information may be collected from persons other than  
            the individual or individuals proposed for coverage;
           such information as well as other personal or privileged  
            information subsequently collected by the insurance  
            institution or agent may in certain circumstances be disclosed  
            to third parties without authorization;
           a right of access and correction exists with respect to all  
            personal information collected; and
           the notice prescribed above will be furnished to the applicant  
            or policyholder upon request.  (Ins. Code Sec. 791.04(c).)

           Existing law  provides that, unless expressly otherwise provided,  
          any notice relating to insurance required to be given to any  
          person may be given by mailing notice, postage prepaid,  
          addressed to the person to be notified at his or her residence  
          or principal place of business in California.  (Ins. Code Sec.  
          38.)  Further, the affidavit of the person who mails the notice,  
          stating the facts of such mailing, is prima facie evidence that  
          the notice was thus mailed.  (Id.)

           Existing law  authorizes a written notice to be provided  
          electronically, as specified, relating to the following  
          transactions:
           any insurance on risks or on operations in California  
            regarding workers' compensation insurance (under Ins. Code  







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            Sec. 1851(f));
           written offers to renew or nonrenew an automobile policy  
            (under Ins. Code Sec. 663);
           renewal offers and notices of nonrenewal of real or personal  
            property or personal injury policies (under Ins. Code Sec.  
            678);
           commercial policy nonrenewal or conditional renewal notices  
            (under Ins. Code Sec. 678.1); and 
           notices of modified earthquake coverage at renewal (under Ins.  
            Code Sec. 10086).  (Ins. Code Sec. 38.5(a).)

           Existing law  requires insurers to maintain a system for  
          electronically confirming a policyholder's decision to opt in to  
          an agreement to conduct transactions electronically and a system  
          that will allow the policyholder to electronically opt out of  
          the agreement to conduct business electronically, as specified  
          under UETA.  (Ins. Code Sec. 38.8.)

          This bill  would remove the following insurance transactions from  
          the list of prohibited statutes, thereby authorizing the  
          electronic transmission of the following records:
           notices that disclose the period in which the applicant has  
            the right to return the policy without penalty ("free look  
            period") included or attached to the following:
              o    all group life insurance or annuity policies and  
               certificates offered for sale to individuals age 65 or  
               older in California (under Ins. Code Sec. 786);
              o    individual life insurance policies with a face value of  
               $10,000 or less (under Ins. Code Sec. 10127.7);
              o    individual life insurance policies issued on and after  
               January 1, 1990 (under Ins. Code sec. 10127.9);
              o    individual life insurance and individual annuity  
               contracts that are initially delivered or issued for  
               delivery to a senior citizen in California on and after  
               July 1, 2004 (under Ins. Code Sec. 10127.10);
           notice of premium increases for individual life insurance  
            policies (Ins. Code Sec. 10113.7); and
           notices and signed statements regarding replacement life  
            insurance and annuity policies (under Ins. Code Secs. 10509.4,  
            10509.7).  (Civ. Code Sec. 1633.3(b).)

           This bill  would authorize any written record required to be  
          given or mailed to any person by a licensee relating to the  
          business of life insurance, which includes insurance annuities,  
          may, if not prohibited by UETA, be provided by electronic  







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          transmission if each party has agreed to conduct the transaction  
          by electronic means pursuant to UETA, and if the licensee  
          complies with the provisions of this bill. 

           This bill  would provide that a valid electronic signature would  
          be sufficient for any provision of law requiring a written  
          signature.
           
          This bill  , for the electronic transmission provisions enacted by  
          this bill, would apply the definitions under UETA, and provide  
          that the term "licensee" means an insurer, agent, broker, or any  
          other person who is required to be licensed by the Department of  
          Insurance (department).

           This bill  , in order to transmit a life insurance record  
          electronically, would require a licensee to comply with all of  
          the following:
           a licensee, or licensee's representative, acquires the consent  
            of the person to opt in to receive the record by electronic  
            transmission, and the person has not withdrawn that consent,  
            prior to providing the record by electronic transmission; a  
            person's consent may be acquired verbally, in writing, or  
            electronically, and if consent is acquired verbally, the  
            licensee would be required to confirm consent in writing or  
            electronically, and the licensee would be required to retain a  
            record of the person's consent to receive the record by  
            electronic transmission with the policy information so that it  
            is retrievable upon request by the department while the policy  
            is in force and for five years thereafter;
           a licensee discloses, in writing or electronically, to the  
            person all of the following:
             o    the opt in to receive the record by electronic  
               transmission is voluntary;
             o    that the person may opt out of receiving the record by  
               electronic transmission at any time, and the process or  
               system for the person to opt out;
             o    a description of the record that the person will receive  
               by electronic transmission;
             o    the process or system to report a change or correction  
               in the person's email address; and
             o    the licensee's contact information, which includes, but  
               is not limited to, a toll-free number or the licensee's  
               Internet Web site address;
           the opt-in consent disclosure would be authorized to be set  
            forth in the application or in a separate document that is  







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            part of the policy approved by the Insurance Commissioner  
            (commissioner) and would be required to be bolded or otherwise  
            set forth in a conspicuous manner, and require the person's  
            signature to be set forth immediately below the opt-in consent  
            disclosure; if the licensee seeks consent at any time prior to  
            the completion of the application, the consent and signature  
            would be required to be obtained before the application is  
            completed, but the person has not opted in at the time the  
            application is completed, the licensee may receive the opt-in  
            consent at any time thereafter, pursuant to the same opt in  
            requirements that apply at the time of the application, and  
            the licensee would be required to retain a copy of the signed  
            opt-in consent disclosure with the policy information so that  
            each is retrievable upon request by the department while the  
            policy is in force and for five years thereafter;
           the email address of the person who has consented to  
            electronic transmission would be required to be set forth on  
            the consent disclosure, and if the person who consented  
            receives an annual statement, the email address of the person  
            who has consented must be set forth on that record;
           the licensee would be required annually to provide one free  
            printed copy of any record described in this subdivision upon  
            request by the person;
           if a licensee is otherwise required to transmit a record by  
            first class mail, regular mail, by an unspecified method of  
            delivery, or is a record that is required to be provided  
            pursuant to the IIPPA, and if the licensee is not otherwise  
            prohibited from transmitting the record electronically under  
            UETA, then the record could be transmitted by electronic  
            transmission if the licensee complies with all of the  
            requirements for the methods of sending electronic  
            transmissions under UETA;
           notwithstanding UETA, if a licensee is otherwise required to  
            transmit a record by return receipt, registered mail,  
            certified mail, signed written receipt of delivery, or other  
            method of delivery evidencing actual receipt by the person,  
            and if the licensee is not otherwise prohibited from  
            transmitting the record electronically UETA and this bill,  
            then the licensee would be required to maintain a process or  
            system that demonstrates proof of delivery and actual receipt  
            of the record by the person consistent with this paragraph;  
            the licensee would be required to document and retain  
            information demonstrating delivery and actual receipt so that  
            it is retrievable, upon request, by the department at least  
            five years after the policy is no longer in force, and the  







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            record provided by electronic transmission would be treated as  
            if actually received if the licensee delivers the record to  
            the person in compliance with applicable statutory delivery  
            deadlines; a licensee may demonstrate actual delivery and  
            receipt by any of the following:
             o    the person acknowledges receipt of the electronic  
               transmission of the record by returning an electronic  
               receipt or by executing an electronic signature;
             o    the record is made part of, or attached to, an email  
               sent to the email address designated by the person, and  
               there is a confirmation receipt, or some other evidence  
               that the person received the email in his or her email  
               account and opened the email;
             o    the record is posted on the licensee's secure Internet  
               Web site, and there is evidence demonstrating that the  
               person logged onto the licensee's secure Internet Web site  
               and downloaded, printed, or otherwise acknowledged receipt  
               of the record; or
             o    if a licensee is unable to demonstrate actual delivery  
               and receipt, the licensee would be required to resend the  
               record by regular mail to the person in the manner  
               originally specified;
           notwithstanding any other law, a notice of lapse, nonrenewal,  
            cancellation, or termination of any product under this bill  
            may be transmitted electronically if the licensee demonstrates  
            proof of delivery, as specified, and complies with the other  
            provisions for delivery in this bill;
           if the record is not delivered directly to the electronic  
            address designated by the person but placed at an electronic  
            address accessible to the person, a licensee would be required  
            to notify the person in plain, clear, and conspicuous language  
            at the electronic address designated by the person that  
            describes the record, informs that person that it is available  
            at another location, and provides instructions to the person  
            as to how to obtain the record;
           upon a licensee receiving information indicating that the  
            record sent by electronic transmission was not received by the  
            person, the licensee, within five business days, would be  
            required to either contact the person to confirm or update the  
            person's email address and resend the record by electronic  
            transmission, as specified, or resend the record initially  
            provided by electronic transmission by regular mail to the  
            insured at the address shown on the policy, as specified; if  
            the licensee sends the first electronic record within the time  
            period required by law and the licensee complies, as  







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            specified, the record sent would be treated as if mailed in  
            compliance with the applicable statutory regular mail delivery  
            deadlines;
           the licensee would be prohibited from charging any person who  
            declines to opt in to receive a record through electronic  
            transmission from receiving a record electronically, and  
            prohibit the licensee from providing a discount or an  
            incentive to any person to opt in to receive electronic  
            records; and
           the licensee would be required to verify a person's email  
            address via a paper writing sent by regular mail when more  
            than 12 months have elapsed since the licensee's last  
            electronic communication.

           This bill  , on or before January 1, 2020, would require the  
          commissioner to submit a report to the Governor and to the  
          committees of the Senate and Assembly having jurisdiction over  
          insurance and the judiciary, regarding the impact and  
          implementation of the authorization of the electronic  
          transmission of certain insurance renewal offers, notices, or  
          disclosures as authorized.  The report would be required to  
          include input from insurers, consumers, and consumer  
          organizations, and include an assessment of the department's  
          experience pertaining to the authorization of the electronic  
          transmission of insurance renewals as authorized.

           This bill  , notwithstanding UETA, for any policy of life  
          insurance, as defined, would provide that any statutory  
          requirement for a separate acknowledgment, signature, or  
          initial, which is not expressly prohibited by UETA, may be  
          transacted using an electronic signature, or by electronic  
          transaction, subject to all applicable provisions.

           This bill  would authorize the department to suspend a licensee  
          from providing records by electronic transmission if there is a  
          pattern or practices that demonstrate the licensee has failed to  
          comply with the requirements of this section.

           This bill  would authorize a licensee to appeal a suspension and  
          resume its electronic transmission of records upon communication  
          from the department that the changes the licensee made to its  
          process or system to comply with the specified requirements are  
          satisfactory.

           This bill  would sunset on January 1, 2021, unless a later  







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          enacted statute, that is enacted before January 1, 2021, deletes  
          or extends that date.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            While California has enacted e-Commerce legislation that  
            largely follows the principles under federal [Electronic  
            Signatures in Global and National Commerce Act (E-SIGN)] and  
            [the Uniform Electronic Transactions Act (UETA)], a small  
            number of documents required to be delivered under the  
            Insurance Code, referenced in Civil Code 1633.3, could be  
            interpreted as requiring a paper-based delivery process or a  
            "wet signature" requirement.  This has prevented the life  
            insurers, among others, from implementing a completely  
            electronic sales process, presenting challenges to customers  
            and agents, and undermining the benefits to insurers and  
            consumers of full electronic processing.

            Current law must be updated to allow broader use of voluntary  
            e-delivery and e-signature of life insurance documents.   
            Customers voluntarily opt in only after being fully informed  
            of all their options and rights.  In advancing this  
            legislation, the life insurance industry is attempting to meet  
            the increasing demand of California consumers to conduct  
            business electronically, and, in so doing, to take advantage  
            of the convenience of e-delivery and e-signatures in  
            obtaining, and keeping track of, life insurance coverage.  All  
            existing consumer protections and rights to cancel under  
            current law remain intact.  The bill also provides for  
            heightened delivery requirements for certain documents, as  
            well as record-retention requirements that are consistent with  
            existing California law.

            In addition, the Department of Insurance [DOI] will also be  
            able to evaluate the impact and implementation of the  
            electronic transmission of these documents and include its  
            findings in a report.  This authorization will also expire  
            unless a later enacted statute deletes or extends the  
            authorization.
            
            AB 1131 will further modernize California's e-Commerce law for  







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            life insurance, annuities, disability insurance and LTC  
            transactions[,] which are otherwise authorized pursuant to  
            California's version of [UETA] statutes[,] the [California]  
            Insurance Code, and the federal E-SIGN 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.  
             

          1.Lack of information on how existing electronic insurance  
            notices are working under SB 251
           
          Two years ago, SB 251 (Calderon, Chapter 369, Statutes of 2013)  
          similarly removed from the prohibited statutes list under UETA  
          and authorized electronic transmission of certain notices  
          pertaining to workers' compensation insurance, personal auto,  
          real and personal property, and liability insurance policies,  
          commercial insurance policies, and earthquake insurance.  SB 251  
          required DOI to submit a report, on or before January 1, 2018,  
          to the Governor and to the Committees of the Senate and Assembly  
          having jurisdiction over insurance and the judiciary, regarding  
          the impact and implementation of the authorization of the  
          electronic transmission of these notices.  However, because the  
          required date for the report is over two years away, no  
          information has been fully compiled by DOI or provided to the  
          Legislature.  DOI expects to complete a survey of all property  
          and casualty insurers to ascertain with specificity whether and  
          to what degree they are expanding the use of electronic  
          transactions permitted under SB 251, and DOI expects to complete  
          this survey later this summer.

          This bill seeks to exempt several more insurance notices from  
          the UETA prohibition.  Yet, it is difficult to ascertain whether  
          the changes made by SB 251 are working effectively and  
          appropriately protecting consumers; therefore, it is uncertain  
          as to whether it is appropriate to remove life insurance and  
          annuity notices for the prohibited transactions list under UETA.

          2.Federal preemption by E-SIGN
           
          On June 30, 2000, the same year that California's UETA went into  
          effect, E-SIGN was signed into law and established legal parity  
          between electronic records and signatures and their paper and  







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          ink counterparts.  (R. A. Wittie, J. K. Winn, Electronic Records  
          and Signatures Under the Federal E-SIGN Legislation and the UETA  
           [as of July 8, 2015].)

          E-SIGN specifically applies to insurance:  "It is the specific  
          intent of the Congress that this title and title II apply to the  
          business of insurance."  (15 U.S.C. Sec. 7001(i).)  E-SIGN also  
          specifically prohibits any notice of the cancellation or  
          termination of life insurance benefits.  (15 U.S.C. Sec.  
          7003(b)(2)(C).)  This provision directly conflicts with the  
          exemptions provided under this bill from the existing UETA  
          prohibition on electronic transmission of life insurance and  
          annuity cancellation notices; as such, these exemptions may be  
          preempted by federal law.

          As discussed by the California Law Revision Commission (CLRC)  
          when it undertook the study of adopting the Uniform Adult  
          Guardianship and Protective Proceedings Jurisdiction Act  
          (UAGPPJA), subsequently enacted by SB 940 (Jackson, Chapter 553,  
          Statutes of 2014), the CLRC noted the following issues of  
          whether a state law could be preempted by E-SIGN:

            Subsection (a) of E-SIGN Section 102 governs preemption  
            generally; the remainder of Section 102 appears irrelevant for  
            present purposes.  As codified, subsection (a) creates a  
            two-prong test for determining whether a state law is exempt  
            from E-SIGN preemption, and thus may effectively modify  
            E-SIGN's requirements for electronic transactions.  [Citation  
            omitted.]

            Under the first prong (paragraph (a)(1)), a state's enactment  
            or adoption of the final version of UETA may, subject to  
            certain exceptions, "modify, limit, or supersede" the  
            requirements of E-SIGN Section 101 (15 U.S.C. [Sec.] 7001).   
            In other words, in specified circumstances a state's enactment  
            or adoption of UETA is not preempted by E-SIGN.

            Under the second prong (paragraph (a)(2)), a state law may  
            effectively specify alternative procedures or requirements for  
            electronic transactions if all of the following requirements  
            are met:

               (1) Those alternative procedures or requirements are  







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               consistent with E-SIGN.
               (2) As compared to E-SIGN, those procedures or requirements  
               do not require or give greater legal status or effect to  
               implementation or application of a specific technology or  
               technical specification for the functions of creating,  
               storing, generating, receiving, communicating, or  
               authenticating electronic records or electronic signatures.
               (3) The state law specifically refers to E-SIGN.

            In other words, a state law may deviate from E-SIGN's  
            requirements for electronic records without being preempted if  
            it satisfies all of the above criteria.

            By its terms, the preemption exemption provided by E-SIGN  
            Section 102(a) applies only to the requirements in E-SIGN  
            Section 101 (15 U.S.C. [Sec.] 7001).
            . . .
            After the enactment of E-SIGN, [the Uniform Law Commission  
            (ULC)] took steps to protect its uniform laws from E-SIGN  
            preemption claims. To meet the second prong of E-SIGN's  
            preemption test and provide a defense against such claims, ULC  
            created a standard provision (known as "the Standard Section")  
            for its uniform acts that
            provide for electronic records, agreements, or signatures.
            . . .
            The Standard Section has already been included in a number of  
            uniform acts enacted by California, including the Uniform  
            Anatomical Gift Act (Health & Safety Code [Sec.] 7151.30),  
            Uniform Commercial Code (Com. Code [Sec.] 1108), Uniform  
            Limited Partnership Act of 2008 (Corp. Code [Sec.] 15912.03),  
            Uniform Prudent Management of Institutional Funds Act (Prob.  
            Code [Sec.] 18509), Revised Uniform Limited Liability Company  
            Act (Corp. Code [Sec.] 17713.02), and Uniform Electronic Legal  
            Material Act (Gov't Code [Sec.] 10300.) (Study L-750, Staff  
            Memorandum 2013-14, Uniform Adult Guardianship and Protective  
            Proceedings Jurisdiction Act:  E-SIGN (Mar. 28, 2013) Cal. Law  
            Revision Comm.   
            [as of July 8, 2015] pp. 7-9.)

          This bill would supersede the prior version of UETA and  
          specifically authorize the electronic transmission of life  
          insurance benefit cancellation notices in direct conflict with  
          E-SIGN, and does not provide for the Standard Section, which is  
          being included in other uniform laws adopted by California.   
          Accordingly, because federal law prohibits electronic  







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          transmission of life insurance policy cancellation notices,  
          depending upon whether the notice of right to cancel is  
          considered a notice for cancellation purposes, and this bill  
          does not properly comply with the federal procedures regarding  
          preemption, it is possible this bill would be preempted by  
          federal law.

          3.Consumer protections in UETA  

          California enacted its own version of UETA in 1999, shortly  
          before the draft UETA was finalized and submitted by NCCUSL for  
          adoption in all states.  California's version of UETA includes  
          specified notice exclusions that vary from those found in the  
          NCCUSL version.

          DOI asserts that existing law allows some life insurance and  
          annuity notices to be provided electronically while others are  
          prohibited from UETA, and this "[t]his leaves some transactions  
          prohibited and some permitted, with policyholders/annuitants  
          receiving some notices by hard copy and some electronically.   
          One aspect of the bill is to avoid potential confusion as to how  
          the consumer is to receive records and permit all aspects of  
          life/annuity transactions by electronic means.  However, in  
          doing so, the insurer must comply with all of the UETA law as  
          well as the additional requirements in this bill."  

          Consumers Union, which raised consumer protection concerns and  
          worked extensively on SB 820, which enacted the California UETA,  
          continues to have concerns with the various UETA statutes  
          enacted in various states because they are not as protective as  
          E-SIGN.  (See Sen. Com. on Judiciary, Analysis of Sen. Bill No.  
          820 (1998-1999 Reg. Session) as amended May 6, 1999, p. 6; Sen.  
          Rules Com., Off. of Sen. Floor Analyses, Unfinished Business  
          analysis of Sen. Bill No. 820 (1998-1999 Reg. Sess.) as amended  
          Sept. 3, 1999, p. 4.)  According to the Consumers Union:

            E-Sign and UETA are similar in many respects, but they are not  
            at all similar in the way they treat consumers.  In consumer  
            transactions, E-Sign requires a specific and electronic  
            consent process before an electronic notice may replace a  
            legally required written notice.  UETA merely requires that  
            the parties agree to conduct transactions by electronic means,  
            but does not specify how that agreement is to be proven.  
            Instead, UETA states that agreement is determined from the  
            context and circumstances.  UETA's agreement requirement  







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            applies to all types of electronic notices (legal and  
            contractual).  UETA undercuts its own basic premise of  
            agreement by permitting the agreement to conduct transactions  
            electronically to be found from the context, including  
            conduct. UETA also permits the agreement for future electronic  
            notices to be given only on paper.  UETA does not exempt any  
            categories of consumer notices.

            (1) The need for consumer protection:  Electronic records,  
            however, present special problems in a consumer context.   
            Unlike mail, which all consumers have for free, over two  
            thirds of the households in the U.S. still are not connected  
            to the Internet.  Yet, under UETA consumers in face-to-face  
            transactions could be asked to sign paper documents agreeing  
            to receive all documents relating to the transaction - both  
            currently and in the future - on-line.  This could be  
            construed to be legal even if the consumer does not have ready  
            access to a computer.

            There are considerable problems even for consumers who have  
            computers.  Consumers commonly receive mail every day[;] many  
            people do not check email on a regular basis.  Unlike mail,  
            where filing a forwarding address with the post office is  
            easy, there is no system for forwarding email when a consumer  
            switches internet providers.  Unlike mail, where everyone has  
            a residence address somewhere, many consumers discontinue  
            email accounts entirely.  Unlike mail, which can be opened by  
            opening an envelope, email sometimes comes with attachments  
            which the consumer's computer cannot read (and, indeed, we are  
            sometimes warned not to open unfamiliar attachments because of  
            the risk of viruses).  All of these factors counsel that we  
            exercise caution in limiting consumer rights based on the  
            assumption that consumers have received everything that has  
            been emailed to them.  (The Need to Protect Consumers -  
            Especially Low-Income Consumers - from UETA, Consumers Union  
             [as of July 8,  
            2015].)

          Yet, the notices of cancellation for life insurance and annuity  
          policies, which includes the statutes created to protect senior  
          policyholders age 65 and older, that this bill would exempt were  
          specifically included in the UETA prohibition with a host of  
          other consumer protection notices because of the Legislature's  
          concern when enacting SB 820 that some consumer notices should  







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          not be sent electronically.  Since DOI has yet to compile  
          information as to whether the exemptions provided under SB 251  
          are adequately protecting consumers, it may be premature to  
          provide more exemptions before the Legislature can review the  
          effects of the SB 251 exemptions on consumer protections.

          4.Elder financial abuse and annuities  

          This bill would authorize electronic transmission of right of  
          cancellation notices regarding life insurance and annuities sold  
          to individuals over 65 years old.  Although E-SIGN authorizes  
          electronic transmission of annuity notices, California has a  
          long history of legislative efforts to protect predatory  
          practices aimed at elders.

          In 2003, the Senate Insurance Committee held an informational  
          hearing entitled "Financial Planning or Fleecing of Seniors?:   
          Insurance Products and Investments."  This hearing highlighted  
          many instances where senior citizens were preyed upon by  
          "Medi-Cal advocates," who would convince seniors to spend down  
          their assets through the purchase of annuities so that the  
          seniors would qualify for Medi-Cal.  These "advocates" received  
          a commission for the sale of the annuity, and the senior  
          purchased a product that may not be appropriate for their life  
          expectancy and financial circumstances.

          To combat this financial predatory scheme, in 2008, the  
          Legislature extended consumer protections under the Consumer  
          Legal Remedies Act (CLRA) for unreasonable fees charged for the  
          preparation, assistance, or advice regarding applications for  
          public social services.  (SB 1136 (Alquist, Chapter 479,  
          Statutes of 2008).)  The CLRA prohibits unfair and deceptive  
          commercial conduct, and authorizes a consumer to commence a  
          civil action for damages resulting from violations of the CLRA.   
          The definition of public social services under the CLRA includes  
          activities and functions of state and local government  
          administered or supervised by the State Department of Public  
                                                                                  Health or the State Department of Social Services.  
          In 2007, the United States Department of Veterans Affairs  
          (USDVA) reported that private companies were targeting the  
          elderly at assisted living facilities, and these companies would  
          offer to assist elderly veterans qualify for veteran's benefits.  
           (Acting Director Bradley G. Mayes, Letter to all VA Regional  
          Offices and Centers, Jan. 3, 2007.)  The USDVA noted that  
          companies were charging fees related to veteran's benefits  







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          applications even though these companies had not been authorized  
          by USDVA to perform such services.  In order to protect seniors  
          from improper fees associated with veteran's benefits  
          applications, SB 180 (Corbett, Chapter 79, Statutes of 2011)  
          added to the definition of public social services in the CLRA  
          veteran's benefits administered by the United States Department  
          of Veterans Affairs and the California Department of Veterans  
          Affairs.

          Veterans' associations around California began reporting an  
          increase in predatory practices on elderly veterans.  "Veterans  
          advocates" are offering services to redistribute the veteran's  
          finances so that the veteran will qualify for the Veterans Aid  
          and Attendance program.  As with the Medi-Cal and Medicaid  
          schemes, these "advocates" reorganize a senior veteran's  
          finances through the purchase of insurance and annuity products  
          that may not be appropriate for the senior veteran's life  
          expectancy and financial circumstances.  To combat these  
          practices, SB 1170 (Leno, Chapter 653, Statutes of 2012)  
          provided senior citizens protection against deceptive insurance  
          advertisements regarding veterans organizations or agencies,  
          added veteran's benefits assistance advertising and promotions,  
          as specified, to the list of deceptive practices under the  
          Consumer Legal Remedies Act, provided additional disclosure  
          requirements, as specified, for the sale of life insurance and  
          annuities to senior citizens, and prohibited an insurance agent,  
          as specified, from delivering living trusts or other legal  
          documents, other than insurance product documents, to a senior  
          citizen if the purpose of the delivery is to sell an insurance  
          product.

          Additionally, AB 689 (Blumenfield, Chapter 295, Statutes of  
          2011) enacted the Suitability Requirements for Annuity  
          Transactions and, among other things, prohibited an insurer from  
          issuing an annuity recommended to a consumer unless there is a  
          reasonable basis to believe the annuity is suitable based on the  
          consumer's suitability information, and prohibited a producer  
          and an insurer from recommending to a person 65 years of age or  
          older the sale of an annuity to replace an existing annuity that  
          requires the insured to pay a surrender charge for the annuity  
          that is being replaced, where purchase of the annuity does not  
          confer a substantial financial benefit over the life of the  
          policy to the consumer, so that a reasonable person would  
          believe the purchase is unnecessary.








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          Just last year, AB 2347 (Gonzalez, Chapter 166, Statutes of  
          2014) revised the senior disability and life insurance policy  
          30-day notices to apply to individual and group life insurance  
          products, require the mandated notice explaining the 30-day  
          "free look" period be in 12 point bold print on the front of the  
          policy jacket or on the cover page of the policy, as specified;  
          added individual annuity contracts to the requirement that all  
          individual life insurance policies include a right to return of  
          not less than 10 days nor more than 30 days, as specified,  
          required that mandatory notice to a senior citizen describing  
          the 30-day "free look" period to be on the front of the policy  
          jacket or the cover page, required individual non-variable life  
          insurance policies and non-variable annuity contracts,  
          individual variable life insurance policies and annuity  
          contracts, and immediate annuity contracts sold to senior  
          citizens to include a notice on the front of the policy jacket  
          or cover page in 12 point bold print that describes the 30-day  
          right to return and any surrender charges or penalties, as  
          specified.  Concerns regarding appropriate consumer protections  
          for senior groups regarding life insurance and annuity  
          cancellation notices continue to this day.  As noted in Comment  
          4, there are multiple factors regarding the inconsistency of  
          policyholder computer and email use to be considered when  
          limiting consumer rights based on the assumption that, even  
          though the policyholder may initially opt in to receive  
          electronic notices, consumers have received everything that has  
          been emailed to them.  

          Notably, AB 1747 (Feuer, Chapter 315, Statutes of 2012) requires  
          life insurers to permit policy owners to designate at least one  
          other person (a designee) to receive notices of missed payments  
          and prohibits termination of an individual life insurance policy  
          until that notice has been mailed 30 days prior to the effective  
          date of termination for nonpayment of premium.  The insured's  
          assignee is already authorized to receive these notices  
          electronically.  (Ins. Code Sec. 10113.71(b)(3).)  Those  
          provisions were enacted to add additional procedural protections  
          to a life insurance policy owner in order to avoid lapse.   
          Similarly, this bill should require the life or annuity insurer  
          to provide the bill's electronic notices to the insured's  
          designee and assignee, upon the designee's or assignee's  
          consent, respectively, and require the insurer to have an  
          electronic process through which the designee or assignee may  
          electronically communicate to the insurer changes in the  
          designee's or assignee's email address.







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          6. Additional points  

          E-SIGN makes insurance agents and brokers liable for any  
          deficiency in the electronic procedures agreed to by the parties  
          under the contract if the agent or broker has engaged in  
          negligent, reckless, or intentional tortious conduct, was  
          involved in the development or establishment of such electronic  
          procedures, and the agent or broker deviated from such  
          procedures.  (15 USC Sec. 7001(j).)  However, neither existing  
          law nor this bill provides these consumer protections, which  
          should be considered by the author and added to this bill to  
          enhance consumer protections.

          Also, UETA prohibits sending electronic notices of the right to  
          cancel unless, in addition to satisfying the other law  
          authorizing a particular notice to be transmitted electronically  
          and UETA, the policyholder may return the notice of cancellation  
          by electronic means.  (Civ. Code Sec. 1633.16.)  Accordingly,  
          this bill should also require the life or annuity insurer to  
          provide the ability for the policyholder to electronically  
          return a notice of cancellation.
           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Association of California Life and Health Insurance  
          Companies; California Department of Insurance

           Related Pending Legislation  :  AB 1097 (Holden, 2015) would  
          permit alarm companies, upon the consent of the contracting  
          customer, to execute home solicitation contracts electronically,  
          as specified, and allow for the execution of a notice of  
          cancellation by electronic means pursuant to the Uniform  
          Electronic Transactions Act (UETA).

           Prior Legislation  :

          SB 940 (Jackson, Chapter 553, Statutes of 2014) See Comment 3.

          AB 2347 (Gonzalez, Chapter 166, Statutes of 2014) See Comment 5.

          SB 251 (R. Calderon, Chapter 369, Statutes of 2013) See  







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          Background.

          SB 1212 (R. Calderon, 2012) 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.  SB 1212 was held without action in the Assembly  
          Insurance Committee.

          SB 1170 (Leno, Chapter 653, Statutes of 2012) See Comment 5.

          AB 1747 (Feuer, Chapter 315, Statutes of 2012) See Comment 5.

          SB 715 (Calderon, 2011) would have enacted the Suitability  
          Requirements for Annuity Transactions but was vetoed by Governor  
          Brown because he signed AB 689, a virtually identical bill.

          SB 180 (Corbett, Chapter 79, Statutes of 2011) See Comment 5.

          AB 689 (Blumenfield, Chapter 295, Statutes of 2011) See Comment  
          5.

          AB 2066 (Jones, 2010) would have required all insurers, brokers,  
          agents, and others engaged in the transaction of insurance who  
          offer to sell an annuity to a senior to disclose to the senior,  
          as defined, all material facts and features of the annuity that  
          he or she knows or reasonably should know are likely to affect  
          the decision of the senior to purchase the annuity, required a  
          written notice with all blanks filled in and initialed by the  
          senior, signed by the senior, in the annuity transaction, would  
          have delineated conditions under which it would be presumptively  
          improper to sell an annuity to a senior; and would have made the  
          sale of an annuity to a senior without fulfilling the written  
          notice requirement or under specified circumstances as  
          presumptively improper, a violation of the duty owed to a  
          prospective insured who is 65 years of age or older of honesty,  
          good faith, and fair dealing.  AB 2066 was held in the Assembly  
          Insurance Committee.

          AB 328 (C. Calderon, Chapter 433, Statutes 2009) See Background.

          SB 1136 (Alquist, Chapter 479, Statutes of 2008) See Comment 5.

          SB 820 (Sher, Chapter 428, Statutes of 1999) See Background.








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           Prior Vote  :

          Senate Insurance Committee (Ayes 8, Noes 0)
          Assembly Floor (Ayes 76, Noes 0)
          Assembly Appropriations Committee (Ayes 15, Noes 0)
          Assembly Insurance Committee (Ayes 13, Noes 0)

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