BILL ANALYSIS Ó SENATE COMMITTEE ON INSURANCE Senator Richard Roth, Chair 2015 - 2016 Regular Bill No: AB 2591 Hearing Date: June 22, 2016 ----------------------------------------------------------------- |Author: |Dababneh | |-----------+-----------------------------------------------------| |Version: |May 27, 2016 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Hugh Slayden | | | | ----------------------------------------------------------------- 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 AB 2591 (Dababneh) Page 2 of ? 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 AB 2591 (Dababneh) Page 3 of ? 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 AB 2591 (Dababneh) Page 4 of ? 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)) AB 2591 (Dababneh) Page 5 of ? 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 AB 2591 (Dababneh) Page 6 of ? 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 AB 2591 (Dababneh) Page 7 of ? 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 AB 2591 (Dababneh) Page 8 of ? 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 AB 2591 (Dababneh) Page 9 of ? 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 AB 2591 (Dababneh) Page 10 of ? 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 AB 2591 (Dababneh) Page 11 of ? 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. AB 2591 (Dababneh) Page 12 of ? AB 2591 (Dababneh) Page 13 of ? 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 --