BILL ANALYSIS Ó SENATE COMMITTEE ON INSURANCE Senator Richard Roth, Chair 2015 - 2016 Regular Bill No: AB 2354 Hearing Date: June 22, 2016 ----------------------------------------------------------------- |Author: |Calderon | |-----------+-----------------------------------------------------| |Version: |May 25, 2016 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Hugh Slayden | | | | ----------------------------------------------------------------- Subject: Vehicle service contracts SUMMARY Expands the types of services that may be provided under a vehicle service contract (VSC). DIGEST Existing law 1. Provides for the regulation of insurance, VSCs, and motor clubs by the California Department of Insurance (CDI), under separate regulatory schemes, and prescribes various requirements and conditions governing the services provided or contractual terms involved. 2. Authorizes car dealers and lessor-retailors licensed by the Department of Motor Vehicles, as well as a person who sells or leases watercraft, to sell VSCs. 3. Permits a VSC to cover a limited number of services specified in statute related to the repair, replacement, or maintenance of a motor vehicle or watercraft that arise from operational or structural failure due to defect or normal wear and tear. AB 2354 (Calderon) Page 2 of ? 4. Authorizes a VSC to provide for incidental indemnity benefits for specified expenses including towing, substitute transportation, emergency road services, and rental car reimbursement. 5. Authorizes a VSC to repair or replace a tire due to damage caused by a road hazard and other reasons. 6. Authorizes manufacturers of motor vehicle lubricants and treatments to provide a warranty for the product that guarantees the repair and replacement of mechanical components of the vehicle based on the use of the product, and declares that this warranty does not constitute insurance and is not subject to licensing by CDI. This bill 1. Requires a VSC provider that offers incidental indemnity benefits to certify that the cost to provide the indemnity benefits are substantially less than the cost to provide all of the primary VSC benefits. 2. Authorizes VSCs of at least one year duration to provide for routine maintenance of the covered vehicles. 3. Authorizes VSC providers to replace a vehicle key or key fob in the event that it is lost, stolen, or becomes inoperable. 4. Defines "road hazard" for the purposes of clarifying when a VCS may cover wheel and tire repair. 5. Specifies that the new services authorized by this bill do not subject a VSC provider to laws applicable to motor clubs. AB 2354 (Calderon) Page 3 of ? 6. Exempts from the laws applicable to VSCs those arrangements where an employer promises or contracts with a third party to provide basic vehicle service reimbursements to employees using their own personal vehicle on behalf of the employer. 7. Repeals the exemption from regulation for manufacturers of certain motor vehicle lubricants and treatments that offer warranties, as specified, and reclassifies those warranties as VSCs. COMMENTS 1. Purpose of the bill According to the author, AB 2354 corrects several problems that arise because the definition of insurance under existing law captures some VSC agreements and inappropriately applies the laws governing insurance. 2. Background Insurance, VSCs, motor club memberships, and warranties involve similar types of agreements but differ in their magnitude, complexity, and purpose. These differences call for specific regulatory structures to ensure that the consumer is treated fairly without overburdening the provider. This bill clarifies those situations where overlapping benefits may trigger overly burdensome regulatory requirements. Insurance involves a contractual arrangement where one party accepts a payment from another party, and agrees to provide indemnification or reimbursement upon the occurrence of a future contingent event. Insurers assume the risk from the insured and diffuse that risk among members of an insurance pool. Auto insurance policies often involve significant risks related to liabilities arising from bodily injury, death or property damage, legal defense costs, and damage to the insured's vehicle. Because the risks involved are so great and varied, and the mechanisms involving insurance are so complex, insurers are highly regulated and subject to sophisticated capital and reserving requirements, prior approval for ratemaking, and regular financial exams. But while typical auto insurance will fix a vehicle, up to AB 2354 (Calderon) Page 4 of ? the limit, if the insured crashes into a tree, it won't fix a vehicle if the engine fails due to wear and tear. Auto maintenance and repairs based on wear and tear or mechanical failure may be covered under a VSC. These agreements are less complex and involve relatively limited losses. Accordingly, VSC providers are not subject to the stringent standards applicable to insurers, but must be licensed, file their contracts with CDI, submit evidence that they have the ability to follow through on the promised services (usually by way of a contractual liability insurance policy), and must provide some consumer disclosures. In a similar way, motor clubs may offer some coverage for towing or emergency roadside assistance, travel services, driver's license and registration assistance, and other services related to automobiles. Additions to Authorized VSC Services. This bill adds several services to those authorized under a VSC license without being subject to the laws governing insurance or motor clubs. Existing law already permits VSC providers to offer specified indemnity benefits to cover the costs related to vehicle breakdown such as towing and emergency road service, so long as these benefits are "incidental." This bill requires a VSC to certify that the costs to provide incidental indemnity benefits that represent a significantly lower cost than those to provide the basic VSC services. This bill continues to permit VSCs to offer these minor, insurance-like benefits, but establishes a clearer line to keep providers from converting a VSC into an insurance policy masquerading as a VSC. Many vehicles require special keys and key fobs that can be far more expensive to reproduce than simply getting a copy made at a hardware store. VSCs may already cover damaged keys and key fobs, but replacement of one that is lost or stolen does not fall under repair or maintenance. The author explains that although replacement of the key or fob may be covered under an auto insurance policy, the cost almost always falls below the deductible amount. This bill makes an exception to the general rule and authorizes a VSC to replace lost and stolen keys and key fobs. AB 2354 (Calderon) Page 5 of ? Auto Lubricant and Engine Treatment Warranties. A warranty is a promise by a manufacturer or seller to stand behind a product. There are different species of warranty, but the most common involves a promise by the seller or manufacturer that the product will do what it is supposed to do. For example, an automobile manufacturer may provide a 100,000 mile warranty on a car and will service the vehicle if it breaks down. These warranties come with the price of the product. The "warranties" that are the subject of this bill actually guarantee the performance of the vehicle based on a third-party product. Moreover, the additive probably would not prevent the breakdown any more than any other similar product. These warranties might also involve additives or add-ons and are inexpensive to manufacture, but are very expensive to purchase because the consumer is actually paying for the warranty. To the extent that the manufacturer is covering losses not truly related to the failure of the product, the warranty is really a form of insurance. These sellers and manufacturers are not subject to any licensing requirement and there are no regulatory safeguards to assure performance. CDI explains that these products have been involved in large scale fraudulent activity, but because of the existing exemption it lacks the authority to investigate potentially wrongful conduct. This bill eliminates that exemption and subjects the warrantor to the laws applicable to VSC providers. One manufacturer has expressed concern that this bill would unfairly limit their product to sales through auto dealers. Exemption from VSC Services. Some employers offer reimbursement for, or hire a contractor to make or provide, non-collision repairs and routine maintenance and other services on employee vehicles that were used on behalf of the employer. These assurances and services are not offered to the general public, and arise out of the employment relationship. This bill excludes those services from the laws applicable to VSCs. The author explains that although some employers offer incidental damage coverage or vehicle maintenance as part of their mileage reimbursement programs, the main purpose of these agreements is to provide a benefit to the employee. AB 2354 (Calderon) Page 6 of ? 3. Arguments in Support The Motor Vehicle Ancillary Products Association states that this bill provides a balanced regulatory framework with appropriate oversight of industry and consumer protections while fostering regulatory certainty for contract providers. POSITIONS Support Motor Vehicle Ancillary Products Association (sponsor) The California New Care Dealers Association Oppose None received -- END --