BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 1131
          Author:   Dababneh (D)
          Amended:  9/1/15 in Senate
          Vote:     21  

           SENATE INSURANCE COMMITTEE:  8-0, 7/8/15
           AYES:  Roth, Gaines, Berryhill, Glazer, Hall, Hernandez, Liu,  
            Wieckowski
           NO VOTE RECORDED:  Mitchell

           SENATE JUDICIARY COMMITTEE:  7-0, 7/14/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  76-0, 5/26/15 - See last page for vote

           SUBJECT:   Insurance:  electronic transmission


          SOURCE:    Association of California Life and Health Insurance  
          Companies 
                     Department of Insurance
          
          DIGEST:   This bill permits life insurance carriers, agents and  
          brokers to send documents and conduct transactions related to  
          life insurance and annuities electronically.

          Senate Floor Amendments of 9/1/15 add double-jointing language  
          to avoid a chaptering problem with AB 1097.  
          
          ANALYSIS: 

          Existing law:








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            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 (by eliminating the exemption) to the  
              following:

               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:










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               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.
               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 otherwise  
              prohibited due to formatting, placement, or other  
              restrictions, may be sent electronically:

               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) 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.


           14) 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  
              specifically excluded from UETA and the licensee complies  
              with all applicable provisions of this bill. 









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           15) Exempts an insurance agent or broker from civil liability  
              for any deficiency in the electronic procedures agreed to by  
              the parties if the insurance agent or broker meets various  
              requirements, including that the agent or broker has not  
              engaged in negligent, reckless, or intentional tortious  
              conduct.


           16) 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.


           17) 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.


           18) Sunsets the bill effective January 1, 2021.


           19) Provides that if this bill and AB 1097 are enacted and go  
              into effect January 1, 2016, and this bill goes into effect  
              after AB 1097, the changes made by both bills to Civil Code  
              Section 1633.3 will go into effect.  


          Background  


          Some types of agreements and transactions are only enforceable  
          if they are in writing.  Most electronic transactions are  
          recognized as the equivalent of paper transaction as provided by  
          the Uniform Electronic Transactions Act (UETA) enacted in 1999  
          and the federal Electronic Records and Signatures in Global and  
          National Commerce Act (ESIGN) enacted in 2000.  Both laws  
          provide that electronic transactions and signatures satisfy  
          writing requirements so long as both parties consent ("opt-in")  
          and follow some basic rules.  Both acts also have provisions  
          that allow for certain exceptions. 


          When electronic commerce was still young, electronic delivery  







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          was seen as unreliable.  This led to California adopt numerous  
          exceptions to UETA in 1999, including many insurance-related  
          documents.  Now many consumers rely on their cell phones,  
          computers, and other devices to manage their affairs.  This bill  
          specifically applies UETA to the purchase of life insurance  
          (including annuities), notices related to life insurance, and  
          notices of cancelation of life insurance.  This bill also  
          authorizes other types of transactions generally so long as the  
          transaction meets specified standards.


          Consistent with UETA and ESIGN, this bill imposes duties for  
          electronic delivery based on the prescribed hardcopy delivery  
          method.  For regular or first-class mail, the basic UETA rules  
          apply along with additional safeguards established in this bill,  
          including requirements that the licensee must provide a free  
          hardcopy every year if requested and must follow-up if he or she  
          receives information that an electronic document was not  
          received. 


          If a record must be sent by certified or registered mail, the  
          insurer will also be required to obtain proof of "actual  
          receipt" to verify that the document was delivered.  The bill  
          specifies the evidence necessary to show actual receipt, such as  
          a returned electronic receipt or signature, or record showing  
          the consumer logged onto a website and downloaded the document.   
          Although notices of cancelation may be sent by first-class mail,  
          they are excluded by ESIGN and UETA.  This bill would allow an  
          insurer to send notices of cancelation electronically so long as  
          it can prove receipt in the same manner.


          If a licensee habitually fails to follow the standards and  
          procedures in this bill, CDI would be authorized to suspend the  
          licensee from engaging in electronic transaction.


          Prior Legislation
          
          SB 820 (Sher, Chapter 428, Statutes of 1999) enacted UETA based  
          on the model act adopted by the National Conference of  
          Commissioners on Uniform State Laws.  








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          AB 328 (C. Calderon, Chapter 433, Statutes 2009) authorized  
          electronic transmission of specified documents, such as the  
          notice of reasons for refusal to issue a good driver policy and  
          the notice of the reasons for cancelling an automobile insurance  
          policy, related to property and casualty lines.  

          SB 251 (R. Calderon, Chapter 369, Statutes of 2013) authorized  
          electronic transmission of offers of renewals and conditional  
          renewals related to property and casualty lines.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified9/2/15)


          Association of California Life and Health Insurance Companies  
          (co-source)
          Department of Insurance (co-source)
          American Council of Life Insurers


          OPPOSITION:   (Verified9/2/15)


          None received


          ARGUMENTS IN SUPPORT:      According to the author, AB 1131 will  
          further modernize California's 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.  

          ASSEMBLY FLOOR:  76-0, 5/26/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bonilla,  
            Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,  
            Grove, Hadley, Roger Hernández, Holden, Irwin, Jones,  
            Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mayes, McCarty, Medina, Melendez, Mullin,  







                                                                    AB 1131  
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            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,  
            Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,  
            Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Bloom, Chávez, Harper, Mathis

          Prepared by:Hugh Slayden / INS. / (916) 651-4110
          9/2/15 12:29:06


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