BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1131| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: AB 1131 Page 2 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: AB 1131 Page 3 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.) AB 1131 Page 4 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. AB 1131 Page 5 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 AB 1131 Page 6 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. AB 1131 Page 7 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 Page 8 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 **** END ****