BILL ANALYSIS Ó AB 2591 Page 1 Date of Hearing: May 3, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2591 (Dababneh) - As Amended April 13, 2016 As Proposed to be Amended SUBJECT: INSURANCE: ELECTRONIC TRANSMISSION KEY ISSUES: 1)SHOULD INSURANCE COMPANIES BE AUTHORIZED TO ELECTRONICALLY TRANSMIT NOTICES OF INSURANCE CANCELLATIONS, NONRENEWALS AND RELATED DOCUMENTS TO AUTOMOBILE AND PROPERTY-CASUALTY POLICYHOLDERS, PROVIDED THAT THERE ARE ADDITIONAL SAFEGUARDS TO PROTECT CONSUMERS AGAINST THE SIGNIFICANT HARMS THAT CAN OCCUR IF THESE DOCUMENTS ARE NOT ACTUALLY RECEIVED? 2)IN LIGHT OF THE NEW STATUTORY RULES TO BE APPLIED TO THE ELECTRONIC DELIVERY OF DOCUMENTS UNDER THIS BILL, MIGHT IT BE APPROPRIATE TO RETAIN A SUNSET DATE TO EVALUATE ITS PRACTICAL EFFECT? SYNOPSIS This bill, sponsored by the insurance industry, seeks to authorize insurers selling automobile and property-casualty AB 2591 Page 2 policies to electronically provide certain notices of cancellation, nonrenewal, offers of renewal, and other communications to consumers if the named insured opts-in to receive documents by electronic transmission. According to the author, the Insurance Code has not been modernized to reflect the choices today's insurance consumers should have, and therefore this bill would expand consumer options to receive electronic documents. While the goal of expanding options to conduct financial business electronically is a worthy one, this Committee has long believed that such efforts must be accompanied by sufficient safeguards to ensure that these documents are actually received by the consumer when they are sent electronically. Actual receipt of the documents at issue in this bill, including notices of cancellation and nonrenewal, is crucial because the consequences for the consumer of not receiving them (because of a junk email filter, for example) can be serious, including financial exposure to significant uninsured losses for auto accidents and damage to one's home. Accordingly, as proposed to be amended, this bill tightens the criteria under which an insurer may demonstrate actual delivery and receipt of an electronic document to exclude the use of confirmation receipts in an email program, among other things. After discussions with Insurance Committee staff and other stakeholders, the author also proposes to amend the bill to reestablish a January 1, 2021 sunset date that will apply to the sensitive cancellation and nonrenewal documents subject to heightened standards for actual receipt, but that sunset will not apply to the routine, less sensitive documents that may be transmitted electronically under Insurance Code Section 38.6, including life insurance, property-casualty, and automobile insurance-related documents. The proposed amendments make clear that upon expiration of the sunset date, on January 1, 2021, authority to provide sensitive automobile and property-casualty documents electronically will have expired, and electronic transmittal of those documents will again be prohibited by Civil Code Section 1633.3 (c) unless a later enacted statute comes along to extend or repeal that sunset date. Finally, this bill AB 2591 Page 3 would consolidate two similar reporting requirements due on different dates, and make them both due on or before January 1, 2019. This would increase efficiency and help facilitate the Insurance Commissioner delivering a single report to the Governor and the Legislature evaluating the impact of these new rules on the electronic delivery of insurance documents. As proposed to be amended, the Insurance Commissioner has taken no position on the bill; the Consumer Attorneys remain in opposition while they take time to review the amendments and continue to work with the author. SUMMARY: Authorizes insurers to provide certain motor vehicle and property-casualty notices of cancellation, nonrenewal, termination and lapse of payment by electronic means, if certain conditions are satisfied. Specifically, this bill: 1)Authorizes insurers, until January 1, 2021, to electronically provide notices of cancellation, nonrenewal, termination and lapse of payment for automobile, property-casualty, and life insurance policies, if the insurer complies with several requirements, including that the insured opt in and receive specified disclosures. 2)Revises the criteria that establish whether an insurer has demonstrated actual delivery and receipt of these notices of cancellation, nonrenewal, termination and lapse of payment. Actual delivery and receipt by the consumer may be established by any of the following: a) The person acknowledges receipt of the electronic transmission of the record by executing an electronic signature. b) The record is posted on the insurer's secure Internet Web site, and there is evidence demonstrating that the person logged onto the insurer's secure Internet Web site and downloaded, printed, or otherwise acknowledged receipt of the record. AB 2591 Page 4 c) The record is resent by regular mail to the person in the manner originally specified by the underlying statutory code if an insurer is unable to demonstrate actual electronic delivery and receipt. 3)Re-establishes a sunset date of January 1, 2021 for provisions authorizing cancellation and non-renewal notices for life insurance, property-casualty insurance, and automobile insurance policies, while allowing less sensitive documents, including routine communications and notices, to be provided electronically in perpetuity without being subject to any sunset date. 4)Consolidates the due dates for two reports that the Insurance Commissioner is required to make to the Governor and the Legislature regarding the impact and implementation of electronic transmission of important insurance documents. Both of these reports may be combined into a single report and become due on or before January 1, 2019, rather than being due January 1, 2018 and January 1, 2020, respectively. EXISTING LAW: 1)Establishes the Uniform Electronic Transactions Act (UETA) which generally authorizes the transaction of business, commerce and contracts by electronic means, except as prohibited. (Title 2.5 of Part 2 of Division 3 of the Civil Code, commencing with Section 1633.1.) 2)Specifies certain transactions which are prohibited from being conducted by electronic means (Civil Code Section 1633.3), such as: AB 2591 Page 5 a) A notice of cancellation of auto insurance (Insurance Code Section 663); b) A written offer to renew an auto insurance policy, or a written notice of nonrenewal (Insurance Code Section 663); c) A notice of policy change or cancellation requested by the insured (Insurance Code Section 667.5); d) A written notice of exercise of the right to cancel a premium financed insurance policy (Insurance Code Section 673); e) A notice of cancellation of property insurance (Insurance Code Section 677); f) An offer to renew or a notice of nonrenewal of a policy of property, liability, or other casualty insurance on risks located in California (Insurance Code Section 678); g) An offer to renew or a notice of nonrenewal of a commercial policy of property, liability, or other casualty insurance on risks located in California (Insurance Code Section 678.1); and h) A notice of reduced earthquake insurance coverage at the time of renewal of a residential property insurance policy. (Insurance Code Section 10086.) 3)Pursuant to UETA, provides that, unless the sender and the recipient agree to a different method of receiving that is reasonable under the circumstances, an electronic record is received when the electronic record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record. (Civil Code Section 1633.15 (b).) 4)Permits, until January 1, 2019, consumers who opt-in to receive electronic notices of renewal for automobile, property, liability, workers' compensation, earthquake and disability insurance, as long as other specified conditions are met: AB 2591 Page 6 a) Requires the insurer to obtain consent from the insured before transmitting insurance documents electronically. (Insurance Code Section 38.5 (b)(1).) b) Requires the insurer to make the following disclosures to the consumer before sending electronic renewal notices and disclosures: (1) The insured must opt-in to receiving these electronic documents; (2) the insured may opt-out of electronic receipt at any time; (3) how the insured can change the email address used by the insurer; (4) the insurer's contact information (including toll free phone number and website address). (Insurance Code Section 38.5 (b)(2).) c) Requires the insurer to do one of the following within two business days if the electronic transmission fails: (1) Contact the insured to confirm the email address and resend the document electronically; (2) resend the documents by regular mail to the insured's address. (Insurance Code Section 38.5 (b)(7)(A).) 5)Permits the Department of Insurance (department) to suspend an insurer's authorization to send the above electronic documents if the insurer has a pattern or practice that demonstrate a failure to comply with statutory requirements. Further allows an insurer to appeal this suspension and, when the department determines the insurer has complied with the specified requirements, resume electronic transmission of these documents. (Insurance Code Section 38.5 (c).) 6)Permits, until January 1, 2021, consumers who opt-in to receive electronic notices of renewal for life insurance policies, provided other specified conditions (see Items 4a to 4c above) are met. (Insurance Code Section 38.6.) 7)Provides, until January 1, 2021, that the record provided by electronic transmission shall be treated as if actually received if the licensee delivers the record to the person in AB 2591 Page 7 compliance with applicable statutory delivery deadlines. Provides that the licensee may demonstrate actual delivery and receipt by any of the following: a) The person acknowledges receipt of the electronic transmission of the record by returning an electronic receipt or by executing an electronic signature. b) 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. c) 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. d) If a licensee is unable to demonstrate actual delivery and receipt pursuant to this paragraph, the licensee shall resend the record by regular mail to the person in the manner originally specified by the underlying provision of the Insurance Code. (Insurance Code Section 38.6 (b)(7).) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: Insurance documents have historically been excluded from the law allowing electronic transmittals of documents in specified transactions. As discussed below, this exclusion reflects the many consumer protection issues that arise when insurance documents transmitted through electronic means are not actually received by the consumer. This bill, sponsored by the AB 2591 Page 8 insurance industry, would lift that longstanding ban to allow insurers to provide certain motor vehicle and property-casualty notices of cancellation, nonrenewal, termination and lapse of payment by electronic means, if the named insured has consented and certain conditions are satisfied that ensure the documents are actually received by the insured. The bill is sponsored by the Personal Insurance Federation of California, the Association of California Insurance Companies, Pacific Association of Domestic Insurance Companies, the American Insurance Association, and the Independent Insurance Agents and Brokers of California, whose members collectively write the vast majority of auto and home insurance in California. In explaining the need for the bill, the sponsors state: In 1999, the Uniform Electronic Transactions Act (UETA) was enacted in California, which established uniform standards for conducting business transactions electronically, giving consumers the option to receive certain documents electronically and the right to opt-out if they change their mind. Unfortunately, much of the California Insurance Code was written in the 1940's and was not amended in alignment with the UETA as other code sections have been. Therefore, the insurance code has not been modernized to reflect the choices today's insurance consumer should have. In 2013, members of the Legislature and the Governor recognized shortcomings in existing law and passed SB 251 (Calderon), allowing consumers to opt-in to receive a narrow range of insurance documents electronically. However, under current law insurers still cannot electronically add a new driver or new car to an insurance policy without mailing paper copies, even when the consumer has deliberately chosen to go paperless. SB 251 was a good first step in updating California's insurance laws to AB 2591 Page 9 reflect the technology that is available today, but more is needed. AB 2591 would expand consumer options to receive electronic documents, and would preserve the consumer protections that exist today in the California Civil and Insurance Codes. Potential risks of harm if electronic transmittal of documents does not result in actual receipt by consumers. According to proponents of the bill, many consumers today are not only comfortable with conducting their banking and financial business online, but prefer to do so-including managing their home and auto insurance policies. While this may be true, it should also be acknowledged that consumers face an often underappreciated risk of harm if, under rules set by state law, the electronic transmittal of documents does not result in actual delivery to, and receipt by, the consumer. For example, a renewal that does not come to the attention of the insured may lead to cancelation, causing significant losses to the consumer if coverage unknowingly expires. An insurer may change the terms or costs of the insurance - reducing policy limits, eliminating coverages, increasing deductibles or increasing premium - all unbeknownst to the insured who has not received the required document, particularly for customers who have auto-pay arrangements. In addition, consider that insurers are authorized to unilaterally modify earthquake policies at the time of renewal if they provide the insured with a required disclosure. Failure to receive this document would be critical for the many Californians whose only protection against the total loss of their most precious asset is earthquake insurance. All of these risks presumably underlie the longstanding policy prohibiting electronic transmittal of these documents, and may have increased rather than diminished in the years since UETA was enacted in 1999 to prohibit many insurance documents from being delivered electronically. With respect to other potential problems, receipt of emailed documents can be impeded by ever more robust but imprecise spam AB 2591 Page 10 blockers that can filter out legitimate messages. Whatever the problems of the U.S. Post Office may be, there is at least no force or agency actively seeking to intercept physical mail. Technological problems can also interfere, such as when a computer server goes down. A number of ISPs have experienced widespread service failures, and of course receipt of email messages also depends on proper operation of the computer systems on the receiving end that are subject to technological problems of their own. In addition, sophisticated computer hackers have regularly disabled the Internet computer servers of companies through denial-of-service attacks and other methods. Far from being resolved in the years since the insurance prohibition was adopted in UETA in 1999, these problems may well have gotten worse. Recent data shows that email deliverability - the term used to designate the rate of email placed in the inbox - has dropped to 76% for American businesses. According to Return Path, American businesses saw nearly one in four emails land in the spam folder or go missing, with inbox placement dropping from 87% in 2014 to just 76% in 2015. (Deliverability Benchmark Report: Analysis of Inbox Placement Rates in 2015. Return Path. Available at: https://returnpath.com/wp-content/uploads/2015/10/2015-Deliverabi lity-Benchmark-Report.pdf ) According to the study, the reasons for the decline are threefold: ISPs are being more rigorous with filtering and blocking, sender reputations are deteriorating, and consumers are reacting to email overload, including by using a "junk" button to automatically filter out emails from senders they specifically opted-in to receive. The phenomenon of dealing with email overload by designating a sender as "junk" when the volume becomes too great - even though the user initially consented to receiving messages from the sender - may be particularly relevant here. If an insurance AB 2591 Page 11 company obtains consent to send renewals by email and subsequently sends other types of unwanted messages, or a greater number of messages than the consumer wishes to receive, the consumer may react by automatically directing further messages from the insurer to a junk filter without realizing that a renewal message six months later will be filtered out as well. As troubling as these deliverability statistics may be, they do not reflect the full scope of the problem. Receipt of emails is also affected by a wide variety of actions of users. For many people, email addresses are temporary and disposable. Many people use multiple addresses, often transitioning over a period of time, or designating specific addresses for certain uses which may shift with time and experience - for example, a frequently used general address may become associated instead with a more specific purpose, or may be abandoned if it is overtaken by unwanted "spam" emails. People change or abandon an email address or a service provider and do not necessarily recall whether years ago they might have given a particular address to their insurance company - or if they do recall doing so, they may not know how to notify the insurance company that they no longer use that new email address. This problem is compounded because there is no system of forwarding or return receipt requests for email as there is with the Postal Service. Email transmission of insurance documents may also not be effective because of the increasing fear of computer viruses or scams that cause consumers to be reluctant to open emails from senders, even when they appear to be legitimate because of the increasing sophistication of such frauds. For these reasons and others, California law in many instances still requires written notices and other documents to be mailed to an individual's home or designated physical mailing address to better ensure delivery and/or receipt for legal purposes. AB 2591 Page 12 This bill wisely seeks to apply heightened standards to the most sensitive insurance documents to ensure their actual receipt by consumers. Last year, AB 1131 (Dababneh), Ch. 638, Stats. 2015, established Insurance Code Section 38.6 to allow all life insurance documents to be transmitted electronically if the consumer opts-in. Under Section 38.6, there are two different standards to ensure that documents are sent and received based on the sensitivity of the document. For documents considered less sensitive (for example, statements and routine notices), life insurers may transmit them electronically if they comply with the minimum standards established by UETA. (See Civil Code Section 1633.15, stating an electronic record is received "when the electronic record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent, in a form capable of being processed by that system, and from which the recipient is able to retrieve the electronic record.") For documents considered most sensitive, such as notices of cancellation, termination, lapse of payment, and non-renewal, Section 38.6 specifies heightened criteria for the policyholder to acknowledge receipt of the notice before it can be considered to have been received. This is a key consumer protection because the policyholder has a limited amount of time to respond to such a notice. For instance, among the most common causes for a cancellation notice is the failure to timely pay a premium, but the policyholder has a window to pay the premium to keep the policy in force after receiving the notice. This is particularly significant for life insurance products as it can be difficult to replace a life insurance policy later in life because life insurance policies are harder to obtain and more costly as a person ages. Proponents note that this standard imposes a greater level of consumer protection than current law which merely requires the insurer to have proof of mailing with no assurance that the policyholder is aware of receiving the notice. Despite its heightened, two-tier system, Section 38.6 currently applies to only life insurance documents, and not automobile or AB 2591 Page 13 property-casualty insurance documents which are covered by current Civil Code Section 38.5 (which itself is set to sunset on January 1, 2019). This bill adds authority for policyholders to receive the full range of documents for automobile and homeowner's policies electronically by repealing the existing statute governing electronic transmission requirements for property/casualty policies and instead applying the standards developed in AB 1131. The bill would have the additional benefit of applying a common set of standards to both life insurance and property/casualty policies in California. Proposed amendment to better ensure actual receipt by consumer of sensitive documents transmitted electronically under Section 38.6. Under the current version of the bill, an insurer may demonstrate actual delivery and receipt by any of the following methods: (A) The person acknowledges receipt of the electronic transmission of the record by returning an electronic receipt or by executing an electronic signature. (B) 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. (C) 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. (D) If a licensee is unable to demonstrate actual delivery and AB 2591 Page 14 receipt pursuant to this paragraph, the licensee shall resend the record by regular mail to the person in the manner originally specified by the underlying provision of this code. In discussions with the author, the Committee noted its concern that "returning an electronic receipt" in (A) and all of the language in (B) did not appear to adequately ensure that a consumer actually receives the insurance document. Problematically, the "electronic receipt" and "confirmation receipt" referred might be satisfied by an automatic indicator or reply script in an email program, which from experience does not necessarily reflect an affirmative action or step taken by the insured to indicate actual receipt of the underlying document at issue. The hallmark of demonstrating actual receipt is when the consumer can be shown to have taken an affirmative, non-automated step in response to the electronic delivery of the document-for example, by logging into the insurer's secure website to view the notice or respond to it, whether being prompted by an email message or on their own accord. Committee staff notes that the bill might be further refined to make sure it encompasses a very popular modern technology-smartphone apps-that are increasingly being used by insurance companies and their customers. Because an app in some cases may not involve the consumer literally logging on through an insurer's secure website, the author may wish to explore with stakeholders if there is a need to revise the language of (C), or add a new paragraph, that clearly establishes that technology like an interactive user app represents a secure and acceptable way to actually receive electronic insurance notices. Accordingly, the author proposes the following amendments: On page 10, line 20, delete "returning an electronic receipt or by", and delete lines 22 to 26. AB 2591 Page 15 Reestablishing a sunset date of January 1, 2021 for untested authority to send sensitive auto, P&C, and life insurance documents. As introduced, this bill included a sunset provision that would take effect January 1, 2021 unless a later enacted statute deleted or extended that date. However, the bill was amended in Assembly Insurance Committee to eliminate the sunset date completely, which in effect would have allowed for the first time all of the sensitive automobile and property-casualty cancellation and nonrenewal notices to be sent electronically, while simultaneously striking the sunset date that would have allowed the Legislature to evaluate that significant policy change for the first time in 2021. In addition, by striking the sunset date in Section 38.6, this bill would have been undoing the sunset date that was just established one year ago by AB 1131 for life insurance documents, before the Legislature had had its first opportunity to evaluate the significant changes related to their electronic transmission as created by AB 1131. In explaining the rational for removing the sunset, the Insurance Committee wrote: The Committee is aware of a number of insurers (representing a significant portion of the property/casualty insurance market in California) who have been unwilling to make the considerable financial investment required to go online because of the uncertainty created by the sunset provisions. Given that reality, the sunset provisions are not only unnecessary, but also getting in the way of providing consumers with online options. After discussions with Insurance Committee staff and other stakeholders, the author proposes to amend the bill to reestablish a January 1, 2021 sunset date that will apply to the sensitive cancellation and nonrenewal documents subject to the heightened standard for actual receipt, but that will not apply AB 2591 Page 16 to the routine, less sensitive documents that may be transmitted electronically under Section 38.6, including life insurance, property-casualty, and automobile insurance-related documents. The proposed amendments make clear that upon expiration of the sunset date, on January 1, 2021, authority to provide sensitive automobile and property-casualty documents electronically will have expired, and electronic transmittal of those documents will again be prohibited by Civil Code Section 1633.3(c) unless a later enacted statute comes along to extend or repeal that sunset date. Proposed amendment to consolidate dual reporting requirements. Under the bill currently in print, the Insurance Commissioner must report to the Governor and the Legislature on or before January 1, 2020 his evaluation of the impact of the changes brought about by AB 1131 of last year, with respect to the electronic transmittal of life insurance documents to consumers. In addition the Commissioner also is required to complete a similar report, on or before January 1, 2018, evaluating the impact of changes arising from SB 251 (2013), which allowed a narrow range of documents to be provided electronically on a trial basis. As proposed to be amended, this bill would consolidate those two reports and make them both due on or before January 1, 2019. This would increase efficiency and help facilitate a single report by the Commissioner that would be received and contemplated by the Legislature well in advance of the January 1, 2021 sunset date to be re-established by this bill. ARGUMENTS IN OPPOSITION: The Committee received an Oppose Unless Amended letter from the Consumer Attorneys prior to a compromise being reached on the proposed amendments described above. The letter states that CAOC opposes the bill "unless it is amended to ensure adequate safeguards are implemented to make certain that consumers receive their important insurance renewal AB 2591 Page 17 notices and a proper sunset date is added." It is believed that the author's proposed amendments may address some of CAOC's concerns, but that at the time of this analysis CAOC is listed in opposition while the group reviews the amendments. At the same time, the group has pledged to work with the author as the bill moves forward. REGISTERED SUPPORT / OPPOSITION: Support American Insurance Association Association of California Insurance Companies Independent Insurance Agents and Brokers of California Pacific Association of Domestic Insurance Companies Personal Insurance Federation of California Oppose unless amended Consumer Attorneys of California AB 2591 Page 18 Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334