BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2591 (Dababneh)
          Version: June 13, 2016
          Hearing Date: June 28, 2016
          Fiscal: No
          Urgency: No
          NR   


                                        SUBJECT
                                           
                         Insurance:  electronic transmission

                                      DESCRIPTION  

          This bill would consolidate and recast the several standards  
          applicable to electronic transactions applicable to insurance  
          notices, in addition to those provided under the Uniform  
          Electronic Transactions Act (UETA), and apply those standards to  
          additional insurance documents.

                                      BACKGROUND  

          In 1999, based on the model law proposed by the National  
          Conference of Commissioners on Uniform State Laws (NCCUSL) to  
          set rules by which electronic commerce may be conducted across  
          the country, California enacted the Uniform Electronic  
          Transactions Act (UETA).  (SB 820, Sher, Ch. 428, Stats. 1999.)   
          California's UETA provides that a record or signature may not be  
          denied legal effect or enforceability solely because it is in  
          electronic form, that a contract may not be denied legal effect  
          or enforceability solely because an electronic record was used  
          in its formation, and that an electronic record or signature  
          satisfies a requirement in the law that a record be in writing  
          or a signature be affixed or if a law provides consequences if  
          there is no record or signature.  

          UETA, however, does not apply to all contracts.  For example,  
          expressly excluded from UETA are transactions that are subject  
          to a law governing the creation and execution of wills,  
          codicils, or testamentary trusts; specified transactions in the  








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          Uniform Commercial Code, that were specifically drafted in  
          consideration of electronic records; and transactions subject to  
          a law that requires that specifically identifiable text or  
          disclosures in a record or a portion of a record be separately  
          signed, including initialed, from the record (such as real  
          estate transactions).

          Relevant to this bill, various specified insurance transactions  
          are prohibited from UETA.  However, beginning in 2009, specific  
          insurance transactions were removed from UETA's prohibited  
          statute list, thereby authorizing these transactions to be made  
          electronically.  AB 328 (C. Calderon, Ch. 433, Stats. 2009)  
          authorized electronic transmission of certain notices that  
          otherwise would require a mailing, upon agreement by the  
          policyholder to receive the electronic communication, including  
          notice of reasons for refusal to issue a good driver policy  
          pursuant to Proposition 103, notice of the reasons for  
          cancelling an automobile insurance policy, notice of the right  
          of a homeowner to purchase earthquake coverage from or as  
          arranged by the homeowner's insurer, or the proof of mailing  
          this notice, and the standard residential property insurance  
          disclosure that sets forth the various types of homeowners'  
          insurance policies.

          Then in 2013, SB 251 (Calderon, Ch. 369, Stats. 2013) removed  
          from the prohibited statutes list under UETA and authorized  
          electronic transmission of certain notices pertaining to  
          workers' compensation insurance; the offer of renewal required  
          for personal auto, real and personal property and liability  
          insurance policies; the notice of conditional renewal for  
          commercial insurance policies; and the offer of renewal and  
          certain disclosures related to earthquake insurance, so long as  
          the insurer complies with the specified provisions of UETA and  
          additional procedures and standards.  SB 251 requires the  
          Department of Insurance to submit a report, on or before January  
          1, 2018, to the Governor and to the Committees of the Senate and  
          Assembly having jurisdiction over insurance and the judiciary,  
          regarding the impact and implementation of the authorization of  
          the electronic transmission of certain insurance renewal offers,  
          notices, or disclosures, as specified.  SB 251 sunsets on  
          January 1, 2019. Last year, AB 1131 (Dababneh, Ch. 638, Stats.  
          2015), 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  







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          notices for life insurance (explicitly exempted from the federal  
          E-SIGN law) and the delivery of documents that must otherwise be  
          sent by certified or registered mail, or some other method  
          requiring confirmation of delivery.  AB 1131 is scheduled to  
          sunset in 2021.

          This bill now seeks to allow broader use of voluntary e-delivery  
          and e-signature of property and casualty insurance documents,  
          and would therefore consolidate and recast the several standards  
          applicable to electronic transactions applicable to insurance  
          notices, and apply those standards to additional insurance  
          documents.
          
          This bill was heard by the Senate Insurance Committee on June  
          22, 2016, and was approved by a vote of 8-0.

                                           


                               CHANGES TO EXISTING LAW
           
           Existing federal law  , the Electronic Signatures in Global and  
          National Commerce Act (E-SIGN), generally provides for the  
          transmission of electronic signatures, but does not apply to a  
          contract or other record that is governed by:  (1) a statute,  
          regulation, or other rule of law governing the creation and  
          execution of wills, codicils, or testamentary trusts; (2) a  
          state statute, regulation, or other rule of law governing  
          adoption, divorce, or other matters of family law; or (3) the  
          Uniform Commercial Code, as in effect in any State, as  
          specified.  (15 U.S.C. Secs. 7001, 7003(a).)

           Existing law  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  
          specified standards and principles, but exempts some classes of  
          records and some specific documents as provided.  (Civ. Code  
          Sec. 1633.1 et seq.)

           Existing law  provides that some notices for property and  
          casualty insurance may be sent electronically so long as, in  
          addition to those requirements provided under the UETA, the  
          insurer is able to provide an affidavit documenting the  
          transmission and maintains a system for confirming that any  







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          notice or document that is to be provided by electronic means  
          has been sent, and retains relevant records for a period of five  
          years.  (Civ. Code Sec. 38.5(a).)

           Existing law  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 the 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 Sec. 38.5(b).)

           Existing law  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 receipt), until 2021.   
          (Ins. Code Sec. 38.6.)  

          This bill  would replace the several standards provided in the  
          Insurance Code for the transmission of electronic documents with  
          a single set of rules, in addition to the UETA rules, applicable  
          to all insurance documents (except for some health insurance  
          documents) and all lines of insurance.  These new rules and  
          standards would, among other things: 
           require a disclosure that informs the consumer that the  
            electronic transmission is voluntary and may be revoked at any  
            time, provide a description of the record, describe the  
            process to report or correct an email address, and provide  
            contact information for the insurer;
           require insurers to document consent and record the email  
            address of the person consenting;
           require the insurer to provide a free hardcopy annually on  
            request and prohibit an insurer from charging, or providing a  
            discount, for consenting;
           authorize the electronic transmission of and establish  
            standards for, in addition to those provided under the 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;
           authorize the electronic transmission of notices of  
            cancellation, until January 1, 2021, and other sensitive  
            documents and apply standards established for registered and  
            certified mail to those documents;







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           prescribe a process for documents posted on a secure Web site  
            or portal.
           prescribe a follow-up process for contacting the insured if  
            the insurer receives information that the document was not  
            received;
           require the insurer to verify the consumer's electronic  
            address when more than a year has passed since the last  
            electronic communication;
           establish that agents and brokers are not liable for a  
            deficiency in the electronic procedures agreed in the contract  
            under specified conditions;
           require insurers to maintain relevant records for a period of  
            at least five years; and
           authorize 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.

           This bill  would apply the UETA and the consolidated Insurance  
          Code standards to the following documents:
           notice of policy cancellation to an additional person with an  
            interest;
           written notice of nonrenewal;
           proof of mailing, cancellation, nonrenewal and reasons;
           notice of policy change or cancellation requested by insured;
           notices related to a lender's right to cancel insurance;
           notices of cancellation;
           notices of nonrenewal; and
           policy notice of nonrenewal for workers' compensation  
            insurance (Ins. Code Sec. 678.1(a) and (b).)

           This bill  would eliminate 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.

           This bill  would eliminate 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.
                                           
                                       COMMENT
           







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           1.Stated need for the bill

           According to the author: 

            Current law must be updated to preserve the consumer  
            protections that exist today in the California Civil and  
            Insurance Codes 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 would  
            also decrease paper use and gives the consumer a choice in how  
            they want their insurance documents delivered.

           2.Reestablish sunset date of January 1, 2021 
           
          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. In justifying the removal of that sunset date, 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.  

          That being said, striking this sunset will undo an important  
          protection that was established one year ago by AB 1131 for life  
          insurance documents. The following amendments would reestablish  
          a January 1, 2021, sunset date that will apply to the sensitive  
          cancellation and nonrenewal documents subject to the heightened  







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          standard for actual receipt, but that will not apply 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, unless a later enacted statute comes along  
          to extend or repeal that sunset date.

             Suggested amendment: 
             
            Restore sunset dates approved in AB 1131 (Dababneh, Ch. 638,  
            Stats. 2015.)

           3.Heightened standard for most sensitive insurance documents
           
          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,  
          based on the sensitivity of the document, to ensure that  
          documents are sent and received.  For documents considered less  
          sensitive (e.g., statements and routine notices), life insurers  
          may transmit them electronically if they comply with the minimum  
          standards established by UETA.  (See Civ. Code Sec. 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  







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          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  
          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.

          That being said, the Consumer Attorneys of California (CAOC), in  
          opposition, argues that the division of insurance documents  
          between the two tiers requires a closer look.  CAOC writes: 

            Receiving documents altering or canceling coverage is  
            important. 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, we 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. 







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          If this Committee were to approve this legislation, it should  
          consider doing so with the commitment that the author work with  
          the opposition to ensure that sensitive documents which have  
          been sent electronically are indeed viewed by the consumer.  


           Support  :  American Council of Life Insurers; Association of  
          California Insurance Companies; National Association of Mutual  
          Insurance Companies; Nationwide Insurance; State Farm Mutual  
          Automobile Insurance Company; Western Insurance Agents  
          Association

           Opposition  :  ; Consumer Attorneys of California

                                        HISTORY
           
           Source  :  American Insurance Association; Association of  
          California Life and Health Insurance Companies; Independent  
          Insurance Agents and Brokers of California; Pacific Association  
          of Domestic Insurance Companies; Personal Insurance Federation  
          of California

           Related Pending Legislation  : None Known 

           Prior Legislation  :

          AB 1131 (Dababneh, Ch. 638, Stats. 2015) See Background.

          SB 251 (R. Calderon, Ch. 369, Stats. 2013) See Background.

          SB 1212 (R. Calderon, 2012) would have authorized an insurer to  
          transmit electronically specified offers of renewal for  
          automobile, property, or commercial insurance, as well as  
          certain liability insurance and notices related to earthquake  
          coverage.  SB 1212 was held without action in the Assembly  
          Insurance Committee.

          SB 715 (Calderon, 2011) would have enacted the Suitability  
          Requirements for Annuity Transactions but was vetoed by Governor  
          Brown because he signed AB 689 (Dodd. Ch.302, Stats. 2015), a  
          virtually identical bill.

          AB 2066 (Jones, 2010) would have required all insurers, brokers,  
          agents, and others engaged in the transaction of insurance who  







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          offer to sell an annuity to a senior to disclose to the senior,  
          as defined, all material facts and features of the annuity that  
          he or she knows or reasonably should know are likely to affect  
          the decision of the senior to purchase the annuity, required a  
          written notice with all blanks filled in and initialed by the  
          senior, signed by the senior, in the annuity transaction, would  
          have delineated conditions under which it would be presumptively  
          improper to sell an annuity to a senior; and would have made the  
          sale of an annuity to a senior without fulfilling the written  
          notice requirement or under specified circumstances as  
          presumptively improper, a violation of the duty owed to a  
          prospective insured who is 65 years of age or older of honesty,  
          good faith, and fair dealing.  AB 2066 was held in the Assembly  
          Insurance Committee.

          AB 328 (C. Calderon, Ch. 433, Stats. 2009) See Background.

          SB 820 (Sher, Ch. 428, Stats. 1999) See Background.

           Prior Vote  :

          Senate Insurance Committee (Ayes 8, Noes 0)
          Assembly Floor (Ayes 80, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Insurance Committee (Ayes 13, Noes 0)

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