BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2591        Hearing Date:    June 22,  
          2016
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          |Author:    |Dababneh                                             |
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          |Version:   |May 27, 2016    Amended                              |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|Hugh Slayden                                         |
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                    Subject:  Insurance:  electronic transmission


           SUMMARY     Consolidates and recasts the several standards applicable to  
          electronic transactions applicable to insurance notices, in  
          addition to those provided under the Uniform Electronic  
          Transactions Act (UETA), and applies those standards to  
          additional insurance documents.
          
           
          DIGEST
            
          Existing law


            1.  Requires that various insurance notices, contracts, or other  
              documents (collectively referred to as "records") be provided in  
              writing and transmitted or delivered as specified, including by  
              mail, first-class mail, registered mail, certified mail, and  
              others.


           2.  Validates electronic records that are otherwise required to be  
              provided in writing.


               a.     Provides that, under California's version of the UETA, a  
                 record or signature cannot be denied legal effect or  
                 enforceability because it is in electronic form provided that  
                 all parties agree and that the transaction complies with  







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                 specified standards and principles, but exempts some classes  
                 of records and some specific documents as provided.  (Civil  
                 Code § 1633.1 et seq.)


               b.     Provides that, under the United States Electronic  
                 Signatures in Global and National Commerce (ESIGN) Act,  
                 notwithstanding any statute, regulation, or other rule of law  
                 with respect to any transaction in or affecting interstate or  
                 foreign commerce a signature, contract, or other record  
                 relating to such transaction may not be denied legal effect,  
                 validity, or enforceability solely provided that all parties  
                 agree and that the transaction complies with specified  
                 standards and principles, but exempts some classes of records  
                 and does not preempt state laws that meet certain criteria.   
                 (15 U.S. Code §§ 7001 et seq.)


               c.     Provides that some notices for property and casualty  
                 insurance may be sent electronically so long as, in addition  
                 to those requirements provided under UETA, the insurer be  
                 able to provide an affidavit documenting the transmission and  
                 maintains a system for confirming that any notice or document  
                 that is to be provided by electronic means has been sent, and  
                 retains relevant records for a period of five years.   
                 (Section § 38.5(a).)


               d.     Provides that some renewal and other notices for  
                 property and casualty insurance and workers' compensation  
                 insurance, may be provided electronically so long as, in  
                 addition to those requirements provided under UETA and  
                 Section 38.5(a), the insurer documents consent as  
                 specifically provided, provides specified disclosures,  
                 documents the insured's email address on the declaration  
                 page, provides one free hardcopy annually on request, and  
                 other consumer protections, until 2019.  (Ins. Code §  
                 38.5(b).)


               e.     Provides that life insurers may conduct all life  
                 insurance transactions based on some basic rules, including  
                 heightened treatment of highly sensitive notices of  
                 cancellation (requiring some sort of confirmation of  








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                 receipt), until 2021.  (Ins. Code § 38.6.)  


            1.  Authorizes insurers to send a notice of policy cancellation to  
              a lienholder with the consent of the recipient.  
            
          This bill


            1.  Replaces the several standards provided in the Insurance  
              Code for the transmission of electronic documents with a  
              single set of rules, in addition to UETA, applicable to all  
              insurance documents (except for some health insurance  
              documents) and all lines of insurance including the  
              following:


               a.     Requires a disclosure that informs the consumer that  
                 the electronic transmission is voluntary and may be  
                 revoked at any time, provides a description of the  
                 record, describes the process to report or correct an  
                 email address, and provides contact information for the  
                 insurer.


               b.     Requires insurers to document consent and record  
                 email address of the person consenting.


               c.     Requires the insurer to provide a free hardcopy  
                 annually on request and prohibits an insurer from  
                 charging, or providing a discount, for consenting.


               d.     Authorizes the electronic transmission of and  
                 establishes standards for, in addition to those provided  
                 under UETA, until January 1, 2021, documents that must be  
                 sent by registered and certified mail, or return receipt  
                 requested that requires electronic proof of actual  
                 receipt.


               e.     Authorizes the electronic transmission of notices of  
                 cancellation, until January 1, 2021, and other sensitive  








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                 documents and applies standards established for  
                 registered and certified mail to those documents.


               f.     Prescribes a process for documents posted on a  
                 secure website or portal.


               g.     Prescribes a follow-up process for contacting the  
                 insured if the insurer receives information that the  
                 document was not received.


               h.     Requires the insurer to verify the consumer's  
                 electronic address when more than a year has passed since  
                 the last electronic communication.


               i.     Establishes that agents and brokers are not liable  
                 for a deficiency in the electronic procedures agreed in  
                 the contract under specified conditions.


               j.     Requires insurers to maintain relevant records for a  
                 period of at least five years.


               aa.    Authorizes CDI to suspend a licensee's authority to  
                 transmit documents electronically when there is a pattern  
                 or practices that demonstrate the licensee has failed to  
                 comply with the applicable standards.


           2.  Applies UETA and the consolidated Insurance Code standards  
              to the following documents:


               a.     Notice of policy cancellation to an addition person  
                 with an interest (Ins. Code § 662)  


               b.     Written notice of nonrenewal (Ins. Code § 663(a)(2))










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               c.     Proof of mailing: cancellation, nonrenewal and  
                 reasons (Ins. Code § 664)


               d.     Notice of policy change or cancellation requested by  
                 insured (Ins. Code § 667.5)


               e.     Notices related to a lender's right to cancel an  
                 insurance policy (Ins. Code § 673)


               f.     Notices of cancellation (Ins. Code § 677(a))


               g.     Notices of nonrenewal (Ins. Code § 678(a)(2))


               h.     Policy notice of nonrenewal for workers'  
                 compensation insurance (Ins. Code § 678.1(a) and (b))


           3.  Eliminates the use of electronic mail read receipts and  
              other email tracking technologies to provide proof of  
              delivery and actual receipt of certain documents and  
              establishes standards for proof of delivery for an  
              application used on a personal electronic device.


           4.  Eliminates the sunset date to authorize electronic  
              transmission for most insurance documents subject to a  
              sunset date, but establishes a sunset date of January 1,  
              2021, for that authority relative to documents that require  
              proof of actual receipt.


           5.  Coordinates existing reporting requirements and requires  
              CDI to submit both reports to the Legislature on or before  
              January 1, 2019.


           COMMENTS
            
          1.  Purpose of the bill   According to the author, current law  








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              must be updated to preserve existing consumer protections  
              and allow broader use of voluntary e-delivery and  
              e-signature of property and casualty insurance documents.   
              SB 251 (Calderon), which allowed consumers to opt-in to  
              receive a narrow range of insurance documents  
              electronically, was a great first step in modernizing  
              California's insurance laws to reflect the technology that  
              is available today, but more is needed.  For example,  
              insurers still cannot electronically add a new driver or new  
              car to an insurance policy without mailing paper copies,  
              even when the consumer has chosen to go paperless. AB 2591  
              takes the next step by expanding consumer's options to  
              receive electronic documents, and would preserve the  
              consumer protections that exist today in the California  
              Civil and Insurance Codes.  This bill will also decrease  
              paper use and give the consumer a choice in how they want  
              their insurance documents delivered.

           2.  Background   Every day, countless electronic transactions  
              occur via email, facsimile, smart phone applications, web  
              pages, and other digital forums.  The technology works  
              behind the scenes to facilitate contracts, sales, and other  
              commercial activity, but it is the law that makes agreements  
              "real" and enforceable.  Some types of agreements are only  
              enforceable if they are in writing.  Not long ago, "in  
              writing" meant ink and paper and it was not clear whether  
              the law recognized agreements formed and memorialized  
              electronically.

              In 1999, the National Conference of Commissioners on Uniform  
              State Laws (NCCUSL) adopted the model UETA to establish  
              consistent interstate rules for electronic transactions.   
              (Former Legislative Counsel Bion M. Gregory sat on the  
              drafting committee.)  SB 820 (Sher), Chapter 428, Statutes  
              of 1999, enacted California's version of UETA almost  
              immediately afterward.  The following year, Congress enacted  
              the Electronic Records and Signatures in Global and National  
              Commerce Act (ESIGN), in part, to encourage the states to  
              adopt UETA in its broadest form and facilitate e-commerce  
              among the states.  

              ESIGN's intended effect was to establish UETA as the  
              universal standard.  It includes explicit preemption  
              provisions that override state laws are not taken from the  








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              model UETA or circumvent the fundamental rule that  
              electronic documents are valid.  When California enacted  
              UETA, it exempted numerous records, including many insurance  
              documents, based on the model provision found in Section  
              3(b)(4) (California Civil Code § 1633(c)).  When Congress  
              drafted ESIGN it rejected the UETA state-specific exclusions  
              by saving state laws based on UETA "except that any  
              exception to the scope of such Act enacted by a State under  
              section 3(b)(4) of such Act shall be preempted to the extent  
              such exception is inconsistent with [the validity provisions  
              of ESIGN]"  (15 U.S.C § 7002(a)(1).)  That ESIGN provision  
              raises significant issues as to the enforceability of the  
              exclusions listed in California's version of UETA.

              There is little case law on this point and nothing directly  
              applicable.  ESIGN preemption is a very complex subject and  
              the insurance industry has avoided the controversy by  
              seeking legislative authorization.  These efforts began with  
              AB 328 (C. Calderon), Chapter 433, Statutes 2009, that  
              applied UETA and some additional rules to basic  
              informational documents related to property and casualty  
              insurance, including notice of reasons for refusal to issue  
              a good driver policy and the notice of the right of a  
              homeowner to purchase earthquake coverage.  SB 251 (R.  
              Calderon), Chapter 369, Statutes of 2013, applied UETA with  
              more consumer protections to notices of renewal and other  
              documents.  Last year, AB 1131 (Dababneh), Chapter 638,  
              Statutes of 2015, until 2020, applied UETA with similar  
              consumer protections, and authorized life insurance  
              carriers, agents and brokers to transactions related to life  
              insurance and annuities electronically.  It also authorized  
              the delivery of cancelation notices for life insurance  
              (explicitly exempted from ESIGN) and the delivery of  
              documents that must otherwise be sent by certified or  
              registered mail, or some other method requiring confirmation  
              of delivery.  SB 251 is scheduled to sunset in 2019 and AB  
              1131 in 2021.

              California insurance law has come completely full circle on  
              uniformity and, in applying UETA with additional and unique  
              features, has differing standards within the same industry  
              and varying standards applied to documents within the same  
              line of insurance.  The hodge-podge approach presents a  
              problem for insurers who sell many lines of insurance and  








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              consumers who prefer or rely on electronic transactions  
              (including those who travel, students living away from home,  
              and others).  This also presents a problem for insurers  
              doing business in several states who are subject to  
              disparate standards and consumers who move to California  
              that are accustomed to receiving these documents  
              electronically.

              Insurance E-commerce.  Insurers cannot control many of the  
              factors that might make electronic delivery problematic,  
              such when consumers change email addresses or when SPAM  
              filters misdirect messages.  UETA and ESIGN both leave the  
              consumer ultimately responsible for choosing the delivery  
              methods they are most comfortable with and that fit their  
              lifestyle.  For this reason, legislation has focused on  
              reinforcing informed consent (including heightened  
              disclosures and prohibiting discounts or charges based on  
              consent) in the insurance context.

              The insurer-consumer electronic interface is quickly  
              changing as technology evolves and consumers increasingly  
              depend on electronic transactions.  Insurers may use any  
              number of technologies, including email, facsimile, text  
              messaging, or smartphone or tablet application, and  
              combinations thereof.  For example, a document may be placed  
              in an Internet account and notice of the document delivery  
              provided by email, text message, and or app.  Consumers may,  
              through an application on a tablet or cell phone, provide  
              proof of insurance (AB 1708 (Gatto, 2013), Chapter 236,  
              Statutes of 2012), file a claim, summon emergency  
              assistance, access documents, etc.

              UETA's Ground Rules.  UETA establishes ground rules and  
              principles for parties engaging in e-commerce.  The most  
              important rule is that engaging in electronic forms is  
              voluntary.  UETA also recognizes that the underlying law  
              might treat certain transactions with special consideration.  
               For instance, UETA leaves undisturbed provisions that call  
              for a document to be sent within 30 days or with special  
              formatting (such as a font size).  But UETA does not impose  
              obligations on either party greater than that imposed by the  
              underlying law and specifically provides that a record may  
              be received even if no individual is aware of its receipt.   
              The NCCUSL drafting committee explains: "As in the paper  








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              world, obligations to send do not impose any duties on the  
              sender to assure receipt, other than reasonable methods of  
              dispatch."
                                                      
              Since concepts from the paper world do not translate easily  
              into the digital, UETA establishes extensive default rules  
              and definitions.  For example, for a document to be  
              considered "sent," the electronic information must be  
              properly addressed or otherwise directed to the recipient  
              and a general broadcast message would not suffice.  The  
              record will be considered sent once it leaves the control of  
              the sender or comes under the control of the recipient.  In  
              this sense, UETA was constructed to provide a complete  
              system.  A state should not have to tailor the rules (it is  
              a uniform standard); ESIGN's preemptive provisions  
              specifically favor the model act "as approved and  
              recommended for enactment.  (15 U.S.C. 7002(1).) 

              Both UETA and ESIGN respect the level of sensitivity given  
              to a record by the underlying law.  A record that must be  
              sent by certified or registered mail, for example, requires  
              confirmation of delivery to the address.  While Section  
              8(b)(2) of the model UETA (Civil Code Section 1633.8(b)(2))  
              preserves required delivery method but creates a potential  
              absurdity.  The drafting committee explains that if a record  
              requires a delivery by first class U.S. mail, the record  
              could still be provided electronically, but must be mailed  
              accordingly, such as mailing a CD with the electronic  
              record.  ESIGN refines this approach and preempts any  
              attempt to impose of nonelectronic delivery methods under  
              model UETA Section 8(b)(2).  (15 U.S.C. 7002(c).)  Rather,  
              ESIGN expressly provides that if a law enacted prior to  
              ESIGN requires verification or acknowledgment of receipt,  
              the electronic equivalent must also provide verification or  
              acknowledgement.  (15 U.S.C § 7001.)

              This bill permits an insurer to transmit a document that  
              would otherwise require a postal delivery receipt or  
              equivalent if the insurer can document that consumer opened,  
              viewed, or printed the record.  However, the standards  
              applied are probably higher than the hardcopy because  
              certified or registered mail does not accomplish this in  
              real life.  Only postal mail sent "restricted delivery"  
              requires the USPS to deliver the document to the named  








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              recipient.  

              This bill also authorizes insurers to send notices of  
              cancelation so long as they comply with the same "actual  
              receipt" standard, even though the underlying law does not  
              require certified or registered mail.  

              Consumer-Initiated Changes.  This bill applies UETA and the  
              additional protections to several documents, including  
              notices sent to named insureds who have requested changes to  
              the policy.  However, when a policyholder requests a change  
              in the policy at renewal or mid-term, such as the removal of  
              an additional named insured, the insurer must send a notice  
              to the named insured listed on the policy declarations page  
              to the address stated on the policy.  This helps to protect  
              other people who depend on the contract.  This bill is  
              intended to authorize the insurer to send electronic notices  
              to the policyholder, but it might not apply to other named  
              insureds.

              Under existing law, this bill does nothing to change UETA's  
              requirement that a recipient must consent to electronic  
              transactions and that the record must be properly addressed  
              to the recipient.  The Insurance Code requires the notice to  
              be sent to the address listed on the policy.  The inability  
              for a named additional insured to receive these notices  
              electronically may prove detrimental to some consumers,  
              especially to a named insured who may not have access to the  
              mail at the residence, such as an estranged  or traveling  
              spouse.


              Sunset Dates.  Sunset dates force the Legislature to  
              reconsider laws based on the most recent information,  
              however, they also undermine the predictability of a law and  
              may not be appropriate where there is a need for long-term  
              planning.  Both SB 251 and AB 1131 have sunset dates.   
              Several insurers and insurance trade associations have  
              indicated that the sunset dates have discouraged insurers,  
              especially small insurers, from making the necessary  
              investments in human and IT resources to send documents  
              electronically.  The current provisions removing the  
              existing sunset dates on most documents, and the addition of  
              a new sunset for highly sensitive documents, are the result  








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              of negotiations between the Assembly Insurance and Judiciary  
              Committees.

              Double-referral.  This bill is double-referred to the  
              Committee on Judiciary. 

           3.  Support   Several insurance trade associations explain that  
              developments in everyday business electronic communications  
              is already here and it includes secure inbox capabilities,  
              real-time claims reporting and many other customer-friendly  
              features enabled by mobile phone apps and internet-based  
              solutions.  As the majority of commerce moves to an online  
              platform driven largely by consumers, the trade associations  
              believe that it is appropriate to review remaining  
              prohibitions on the electronic transaction insurance -  
                                                                     particularly those that empower consumers to choose to  
              opt-in.  

           4.  Opposition   The Consumer Attorneys of California highlights  
              the importance of receiving documents altering or canceling  
              coverage. The consequences of a reduction or cancellation of  
              coverage for a consumer can be serious, including financial  
              exposure to significant uninsured losses for auto accidents  
              and damage to one's home. It is crucial that consumers  
              actually receive these documents. The same rules that may be  
              acceptable for telephone bills or credit card statements are  
              not appropriate for auto and home insurance.

              All car owners and home owners are required to have auto and  
              home insurance; thus, AB 2591 has a broad application. As a  
              result of the commonality of these auto and home insurance  
              policies, the bill must ensure consumers do indeed receive  
              important notices that could result in significant financial  
              exposure.

              Life insurance policies are inherently more sensitive due to  
              older, more vulnerable consumers who are often less  
              technology-savvy. Additionally, the consequences of an  
              unknowing cancelation or lapse in coverage could have dire  
              financial consequences for an individual who has been paying  
              into their life insurance for decades. Because the  
              electronic life insurance bill only recently went into  
              effect, CAOC believes that it is premature to remove the  
              2021 sunset date relative to life insurance.








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          5.  Related Legislation  
              
              AB 2296 (Low, 2016) would clarify the types of electronic  
              signatures that are permissible for public agencies.  

              AB 1743 (Dababneh, 2016) would apply UETA to the  
              California's Automobile Sales Finance Act & the California  
              Vehicle Leasing Act and authorize the use of an electronic  
              signature for the purpose of purchasing or leasing a vehicle  
              with an electronic signature.
           
          
          POSITIONS
            
          Support
           
          American Council of Life Insurers
          American Insurance Association
          Association of California Insurance Companies 
          Association of California Life and Health Insurance Companies
          Independent Insurance Agents and Brokers of California
          National Association of Mutual Insurance Companies
          Personal Insurance Federation of California 
          Pacific Association of Domestic Insurance Companies
          State Farm Mutual Automobile Insurance Company
          Western Insurance Agents Association

           Oppose
               
          Consumer Attorneys of California

                                      -- END --