AICP Midwest Chapter
E-Insurance: Overcoming Challenges
and Avoiding Common Pitfalls
Stephanie Duchene
Dentons US LLP
Stephanie.Duchene@Dentons.com
213-892-2909
Tuesday, August 26, 2014
The James B. Henry Center for Executive Development at Michigan State University
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Disclaimer
These materials should not be considered as, or as a substitute for, legal
advice and they are not intended to nor do they create an attorney-client
relationship. Because the materials included here are general, they may
not apply to your individual legal or factual circumstances. You should not
take (or refrain from taking) any action based on the information you obtain
from these materials without first obtaining professional counsel. The
views expressed do not necessarily reflect those of the firm, its lawyers, or
clients.
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E-Insurance:
Overcoming Challenges and
Avoiding Common Pitfalls
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Trends
• Between 2001 and today, the number of Americans with Internet access
grew from nearly half the U.S. population to roughly 80%. Today, over
347 million Americans are online.
• Estimated that 73.5% of U.S. consumers now use online bill pay.
• In addition to banking, consumers are investing, making major purchases
(and even dating) online.
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Trends
According to the comScore 2013 Online Auto Insurance Shopping Report:
• In 2013 people were increasingly more open to the idea of purchasing
auto policies online than they were in 2011 and 2012, up 3 percent and 1
percent, respectively.
• Obtaining a quote online continues to be the most popular auto
insurance shopping method for consumers, with 67 percent of
respondents who shopped in the past year saying they obtained a quote
online.
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Trends
According to the 2011 Insurance Barometer study by the Life and Health
Insurance Foundation for Education (LIFE) and LIMRA:
• 64% of adults would prefer to buy their life insurance from an insurance
or financial professional, down from 80 percent in 1996.
• Younger consumers showed the most interest in purchasing life
insurance through the Internet. Among people age 25 to 44, 31% said
they would prefer to buy directly, with three in four of those individuals
citing the Internet as their preferred means of direct buying.
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Clearing the e-insurance hurdles
Hurdle #1: Electronic Presence
(establishing and maintaining a compliant electronic presence)
Hurdle #2: Electronic Sales
(electronic consent, electronic signatures, electronic collection of premium)
Hurdle #3: Electronic Issuance and Maintenance
(electronic delivery of insurance related documents)
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E-Insurance Hurdle #1:
Electronic Presence
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Electronic Presence
• Exists in many forms: websites, social media, blogs, apps
• Range of capabilities:
• appointment request
• quote request
• quote price return
• purchase/bind
• issue
• Initial challenges:
• identifying advertising/complying with advertising rules
• maintaining an overall compliant presence
Month Day Year
Dentons US LLP
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Electronic Presence - Advertising
• Common pitfall: Failing to consider your online activity as advertising
Most states define an advertisement as material “designed to create
public interest in insurance, an insurer, or a producer” or “induce the
public to purchase, increase, modify, reinstate or retain” a policy of
insurance.
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Electronic Presence - Advertising
• Which of the below is considered advertising?
• Website
• Hyperlinks, banners, pop-ups
• Email
• Social media
• App
• Challenge: Compliance with advertising laws
• Same rules apply to online advertising as apply to advertising on any other
medium - content, format, approval and retention requirements apply
• Particularly tricky with social media platforms
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Electronic Presence
• Other common pitfalls:
• Failing to do business in licensee's full approved name (overuse of
logo, use of unapproved dba or marketing name)
• Failing to adequately disclose identity and relationship in co-branded
sites (particularly with producers)
• Failing to direct online traffic
• Failing to use inputs to dictate outputs
• Failing to view your overall website from a regulator's position -- do
NOT give Marketing control!
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E-Insurance Hurdle #2:
Electronic Sales
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Electronic Sales
• Challenges:
• Obtaining consent to an electronic transaction
• Binding coverage through electronic signatures
• Collection of premium electronically
• Retention of records electronically
Electronic Presence - Consent
All parties must agree to conduct a transaction electronically.
Two types of consent needed:
1. Consent to conduct a transaction electronically - can be
determined from context and surrounding circumstances,
including parties conduct
• Avoid pitfalls: obtain affirmative consent to ensure a customer
agrees and understands that they are transacting electronically
(e.g. require agreement to T&Cs early in experience)
2. Consent to electronic delivery of documents -- more involved
(disclosure statement + consent in required format)
Dentons US LLP
Document reference #
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Electronic Signatures
• Signatures are used to:
• Denote agreement to terms and conditions set forth in a document.
• Acknowledge receipt of a document.
• Convey the signer is indeed who he/she purports to be (authentication).
• Many types of insurance documents may require a signature:
• Application
• Release of confidential medical information
• Beneficiary changes
• Uninsured motorist coverage
• Earthquake insurance offer
• Life illustrations
• Consumer protection disclosures
Electronic Signatures - risks
• Authentication risk: "That's not my signature"
• Avoid pitfall: Use ways to affirm identity - "shared secrets," require completion
of log-in/change of password go through email
• Repudiation risk: "That's not what I signed"
• Avoid pitfall: Have a secure and searchable audit log ("hash chains"), law
requires that the signature be "linked, attached or logically associated with the
document"
• Adoption risk: "I didn't meant to actually sign"
• Avoid pitfall: Require affirmative action (no already checked boxes), ask
multiple times, be clear as to the significance of the action
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Electronic Signatures and Contracts
• General “rule of validity” under the law (ESIGN and UETA):
• A signature may not be denied legal effect or enforceability solely
because it is in electronic form.
• A contract may not be denied legal effect, validity, or enforceability
solely because an electronic signature was used in its formation.
• A contract or other record may not be denied legal effect, validity or
enforceability solely because it is in electronic form.
• Goal: Promote electronic commerce by ensuring national uniformity and
legal certainty for electronic signatures and records.
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Electronic Signatures
• "Electronic signature" = "an electronic sound, symbol, or process
attached to or logically associated with a contract or other record and
executed or adopted by a person with the intent to sign the record"
• Technologically neutral -- there are no technological requirements as to
how an electronic signature must be made
• Intended to provide businesses the flexibility to design computer applications
that fit their unique needs.
• Some states have technologically specific requirements – pre-empted by
ESIGN
• Some state shave issued guidance: An insurer may have to show that security
procedures are sufficient to verify that an electronic signature or record is that
of a specific person. (Ky. Advisory Opinion 2006-09)
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Electronic Signatures
• If an insurance related document requires a signature, an electronic
signature is acceptable provided that: (1) it is attached to or logically
associated with the record; and (2) executed or adopted by a person with
the intent to sign the record.
• Avoid pitfall: Obtain clear, affirmative consent that the consumer intends
to enter into a binding agreement.
• Examples: Type name into signature field, check a box, use a vendor
• Include statement: “I understand that by [entering my name in the signature
field, by checking this box, etc.] that I am agreeing to enter into a binding
agreement with [Company]…”.
• Remember authentication, repudiation and authentication risks
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Electronic Binding
• No state prohibits the binding of insurance online, provided carrier
complies with ESIGN and UETA.
• E.g. 2001 bulletin issued by the Ohio Department of Insurance
provides that regulated entities may “conduct business with consenting
consumer electronically” and that the state’s UETA provides for legal
recognition of electronic signatures, and electronic records. The
bulletin also provides that “delivery and communication by electronic or
other verifiable means shall not be precluded where agreed to by the
parties involved.” Oh. Ins. Bulletin 2001-3.
• E.g. 2003 bulletin from the South Carolina Department of Insurance
provides that “insurance transactions may be effectuated electronically
over the Internet to the same extent as they may be effectuated by
other means…that is, effectuating an insurance transaction over the
Internet does not add any additional requirements not otherwise
required under the South Carolina insurance laws.” S.C. Ins. Bulletin
03-5.
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Collection of premium
• Many options:
• Pay online by credit card or debit card
• Automatic deductions from checking account using EFT
• Online billing
• Mail in payment by check or money order
• Payment by phone (by credit or debit card)
• When collecting premium online there are various applicable state and
federal laws to be mindful of, including privacy and data security laws.
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Collection of premium
• State insurance laws regarding collection of premium via credit card
and debit card vary. Most commonly they include:
• Credit card usage may not result in an increased premium or
separate fee.
• Conversely, insureds paying cash or check may not be offered
a discount for doing so.
• Credit card issuer may not cancel a policy if a cardholder fails
to pay balances due that include insurance premiums.
• Premium refunds must be made directly to the cardholder.
• May not offer an extension of credit for premium payments
made through a particular credit card.
Retaining records electronically
• If a law requires that a contract or other record be retained (such as
insurance record retention requirements), that requirement is met
by retaining an electronic record of the information which:
• Accurately reflects the information set forth in the contract or
other record;
• Remains accessible to all persons who are entitled access by
statute, regulation or rule of law for the period required by such
statute, regulation or rule of law
• In a form that is capable of being accurately reproduced for
later reference, whether by transmission, printing or otherwise.
E-Insurance Hurdle #3:
Electronic Issuance and Maintenance
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Electronic Delivery
• Many types of insurance related documents are required by law to
be provided in writing (e.g. policies, claims communications, billing
notices, cancellation/non-renewal notices, certificates of insurance,
proof of coverage, etc.)
• Regulators have voiced concerns regarding electronic delivery,
including whether the insurer can verify that the document was
actually delivered, whether the document is maintained in a format
that is secure from tampering and facilitates audit/discovery, and
whether the document is available to the consumer within a
reasonable time upon request. (NAIC White Paper, Electronic Commerce and
Regulation Issues Paper (2000))
Electronic Delivery
• Challenges:
• Law requires a consumer to consent ("opt-in") to electronic delivery
after being provided with specific detailed disclosure.
• Determining when an electronic document is considered "sent" and
"received."
• Determining what documents may and may not be sent electronically.
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Electronic Delivery
If the law requires that a document be provided in writing, electronic
delivery of the document satisfies this requirement if:
1) the parties consent to electronic delivery (different requirements for
consent in consumer and B2B transactions)
2) an exception does not apply which would prohibit the information
from being delivered electronically
• Only applicable where a law requires information to be provided in writing
(e.g. policy documents, notices). If there is no legal requirement that the
information be provided in writing (e.g. general correspondence), these
laws do not apply.
• Avoid pitfall: Best practice to have affirmative consent to electronic
delivery regardless of type of document that is being sent.
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Electronic Delivery - Consent
• Consumer consent to receive documents electronically must:
• Be affirmative ("opt-in") -- can not be assumed or defaulted
• Be obtained only after specific information is clearly and
conspicuously disclosed (ESIGN Disclosure Statement)
• Be "in a manner that reasonably demonstrates that the consumer
can access information in the electronic form in which it will be
sent."
• Business consent to electronic delivery can be inferred from the
context and surrounding circumstances of the transaction
• Avoid pitfall: Timing of consumer consent must be after disclosure
statement provided.
Electronic Delivery - Disclosure
• Must disclose specified information to the consumer before obtaining
his/her consent to conduct a transaction electronically. Must inform the
consumer:
• Of any right or option to have the record provided or made available on paper
or in non-electronic form;
• Of the right to withdraw the consent to have the record provided or made
available in an electronic form and of any conditions, consequences (which
may include termination of the parties' relationship), or fees in the event of such
withdrawal;
• Of the procedures to withdraw consent and to update information needed to
contact the consumer electronically;
• Whether the consent applies (I) only to the particular transaction which gave
rise to the obligation to provide the record, or (II) to identified categories of
records that may be provided or made available during the course of the
parties' relationship; and
• How, after the consent, the consumer may, upon request, obtain a paper copy
of an electronic record, and whether any fee will be charged for such copy.
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Electronic Delivery - sent and received
• Electronic record is “sent” when addressed or otherwise properly
directed to an information processing system that the recipient has
designated for the purpose of receiving electronic information and
from which the recipient is able to retrieve the electronic record.
• Electronic record is “received” when it enters an information
processing system that the recipient has designated for the
purpose of receiving electronic records and is in a form capable of
being processed by that system.
• Electronic record must be capable of retention by the recipient at
the time of receipt.
• Avoid pitfalls: not responding to bounce-backs, not providing an
easy mechanism for changing email address on file
Electronic Delivery - sent and received
• For example, West Virginia makes it clear that where the sender has
actual knowledge that a party did not receive the electronic record (e.g.
bounce back), it is the sender's obligation to take reasonable steps to
attempt redelivery to a new email address or postal address.
"In a consumer transaction, an electronic record is not sent to or received by a
party if the sender has actual knowledge that such party did not actually receive
the electronic record. In that case, the sender's sole obligation shall be to take
reasonable steps to attempt redelivery using information in the sender's files.
This redelivery requirement is satisfied if the sender sends the electronic record
to a different electronic mail address or to a postal address the sender has on
file." W. Va. Code § 46A-6I-3.
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Electronic Delivery - exemptions
• Even where you have appropriate consent and appropriate procedures -electronic delivery has not historically been permissible for all types of
insurance related documents, including:
• Any notice regarding the cancellation or termination of health insurance
benefits or life insurance benefits (excluding annuities)
• Documents that are required by statute/regulation to be sent via "specified
method" (e.g. "first class mail," certified mail," "registered mail," "last known
address," etc.)
• Other types of document specifically carved out by state law (e.g. notices of
termination or non-renewal of personal auto or property, written offers of
earthquake insurance, LTC insurance notices, etc.)
• Pitfall: Assuming that once you have consent to electronic delivery,
everything can be delivered electronically.
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Electronic Delivery - exemptions IN and MI
• Indiana and Michigan exempt from electronic delivery documents that
are required to be sent via a specified method:
• IN: "If a law… requires a record to be sent, communicated or
transmitted by a specified method…the record must be sent,
communicated or transmitted by the method specified in the other law."
Ind. Stat. 26-2-8-107(b).
• MI: "If a law requires a record to be posted or displayed in a certain
manner, to be sent, communicated, or transmitted by a specified
method . . . the record must be posted or displayed in the manner
specified by law.” Mich. Comp. Law s 450.838(2).
• Examples of documents required to be sent via specified method: notice
of lapse or termination for LTC policy, replacement notices in direct
response sales, annuity annual statements
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Electronic Delivery - exemptions Kentucky
• Kentucky exempts from electronic delivery documents required to be
delivered via a specified method, however, it has also issued an advisory
opinion that arguably overrides the exemption.
• "If a law … requires a record … to be sent, communicated, or transmitted by a
specified method…the record must be sent, communicated, or transmitted by
the method specified in the other law.” Ky. Rev. Stat. 369.108(2).
• Examples: property insurance notices of cancellation, nonrenewal and premium
increases; annuity annual statements
• But see, Advisory Opinion 2013-01 (February 19, 2013) provides that "after
reviewing the various laws requiring notice," as well as Kentucky's UETA, the
Department interprets the required delivery of effective notice can be made by
electronic mail to policyholders.
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Electronic Delivery - exemptions Kentucky
• KY Advisory Opinion cont.:
• Because of the "paramount importance for consumer protection," the
delivery of cancellation, renewal, nonrenewal, and premium increase
notices is permitted electronically only if:
• Disclosure is made to policyholder of option to elect to receive notices
electronically or in hard copy.
• Disclosure must contain the following or substantially similar language:
The policyholder who elects to allow for this policy, notices and communications
to be sent to the electronic mail address provided by the policyholder should be
aware that the election operates as consent by the policyholder for all notices to
be sent electronically, including notice of nonrenewal and cancellation. Therefore,
the policyholder should be diligent in updating the electronic mail address
provided to the insurer in the event that the address should change.
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Electronic Delivery - exemptions KY
• KY Advisory Opinion cont.:
• An insurer’s failure to grant a request from a policyholder to receive hard
copy mailings or an insurer’s failure to provide the above disclosure
could result in administrative action.
• An insurer making an electronic delivery or providing electronic notice
shall maintain proof of electronic mailing.
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Electronic Delivery - exemptions Ohio
• Ohio exempts from electronic delivery documents required to be
delivered via a specified method, however, it too has issued a bulletin
that arguably overrides the exemption. (And see also new law effective
in September.)
• If a law … requires a record … to be sent, communicated, or transmitted by a
specified method…the record shall be sent, communicated or transmitted by
the method specified in the other law." Ohio Stat. § 1306.07.
• But see Ohio Ins. Bulletin 2001-3: “For purposes of delivery and other
communication required or permitted by [Ohio] and its attendant regulations,
delivery and communication by electronic or other verifiable means shall not be
precluded where agreed to by the parties involved. The burden is on the
regulated entity to meet all existing requirements for delivery regardless of the
method by which the policy or other record(s) are actually delivered to the
recipient.”
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Electronic Delivery - exemptions West Virginia
• WV: Expressly excludes termination of health insurance or life insurance
(excluding annuities) from electronic delivery.
• Also contains a "specified method" exemption:
• If a law requires a record “to be sent, communicated, or transmitted by a
specified method,” the record must be sent, communicated, or transmitted by
the method specified in the other law. W. Va. Code § 39A-1-8.
• Examples: policies of life or accident sickness insurance, annuity annual
statements, notice of lapse or termination of LTC policy
• However, Informational Letter 135B indicates that notwithstanding a
requirement that certain forms be delivered by a specified method to the
insured, UETA allows transmittal in electronic form.
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Electronic Delivery
• Challenges:
• Establishing a multi-jurisdictional system
• Unintended consequences of the law
• Outdated laws that do not accommodate Gen Y preferences
Among customers who utilize multiple contact channels to resolve an issue, 40% of Gen Y
(born from 1974-1994) customers begin online, further underscoring their preference to
seek answers to their questions via this channel. In contrast, the most frequent starting
point for Boomers (born from 1946-1964), who have used multiple channels to resolve an
issue, is their agent (40%). (2012 J.D. Power and Associates study of the US Auto
Insurance industry)
• States have begun to enact legislation which overrides these exemptions
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Month Day Year
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Electronic Delivery - recent changes
• Recent changes in the law aimed at overturning electronic delivery
exemptions
• Solution -- separate overriding statute(s) which affirmatively permit the
electronic delivery of documents that are expressly excluded from
electronic delivery under UETA/ESIGN
• New challenge: an overlay statute overlaying an overlay statute (!!!)
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Electronic Delivery - recent changes
• Model Merged Insurance Transaction Modernization Electronic Delivery
or Posting
• Model law drafted by the insurance industry
• Adopted to varying degrees in many states (e.g., AK, AZ, DE, FL, ID, IL,
IN, KS, MN, MO, NJ, NC, OH, OK, PA, TN, TX, VA, WI)
• IN: Ind. Stat. 27-1-43-1 et seq. (effective July 1, 2014)
• OH: Ohio Ins. Code § 3901.41 (effective September 4, 2014)
• Pending in other states
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Electronic Delivery - recent changes
• Two parts to the model:
1) Part 1: Overrides the "specified method of delivery" exemption in
UETA
2) Part 2: Permits electronic posting to constitute electronic delivery
under certain circumstances
• Part 1 began circulating in 2009; Part 2 began circulating in 2011; in late
2012 the two parts were joined to form the current model law
• Some states have enacted both parts, some have enacted one or the
other, some have enacted one and have one part still pending
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Electronic Delivery - recent changes
• Part 1: Electronic delivery of a document "shall be considered equivalent
of any delivery method required [under the insurance code], including
first class mail, certified mail, certificate of mail or certificate of mailing."
• Effectively eliminates the "specified method" roadblock
• Consumer must affirmatively "opt-in" to electronic delivery -- parallels (or
simply references ) ESIGN disclosure + consent requirements
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Electronic Delivery - recent changes
• Part 2: Allows for electronic posting of policy documents (sometimes
restricted to P&C) that contain no personally identifiable information (i.e.,
standard policy forms and endorsements), unless policyholder opts-out
• Must be accessible for as long as the policy is in force
• Must be archived for five years after expiration
• Must be posted in a manner that allows the insured to retrieve and print
using software widely available on the internet
• Insurer must provide certain information with declarations page and any
renewals, including:
• exact policy and endorsements purchased,
• the method by which the insured may obtain a paper copy without
charge,
• the internet address where the policy/endorsements are posted
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Electronic Delivery - Indiana
• Enacted Part 1: Ind. Stat. 27-1-43-1 et seq. effective as of July 1, 2014
• Electronic delivery (includes delivery to a designated email address or posting
to a web site, mobile app, etc. with separate notice delivered to designed email
address) of a notice or document is considered to be equivalent to any legally
required delivery method -- eliminates "specified method" exemption
• Party ("recipient of notice/document required as part of an insurance
transaction") must affirmatively consent to electronic delivery after being
provided with a clear and conspicuous disclosure statement (restates ESIGN
requirements).
• If insurer already has consent of a party to receive certain notice/document
electronically and the insurer intends to deliver additional notices/documents to
the party pursuant to the new law - insurer must notify the party that
notices/documents that were not previous electronically delivered may now be
electronically delivered and the party has right to withdraw consent to electronic
delivery
• Has not enacted Part 2 of model
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Electronic Delivery - Ohio
• Enacted portions of Part 1 and Part 2. See Ohio Ins. Code § 3901.41
(effective September 4, 2014).
• Part 1: Any information, including notices of cancellation, nonrenewal or
termination may be delivered electronically to the last known "contact
point" ("any electronic identification to which messages can be sent,"
including email, instant message, cell phone) supplied by the insured.
• Insured must consent to electronic transaction and be provided with full
disclosure of "details of automated transaction" -- similar to ESIGN
Disclosure
• If the insurer has knowledge that the insured's contact point is no longer
valid, the insurer must send the information via regular mail.
• Does not fully eliminate specified method exemption - unclear interplay
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Electronic Delivery - Ohio
• Any information, other than notices of cancellation, nonrenewal or
termination, are permitted to be delivered via secure website if the
insurer sends an electronic notice to a contact point and the electronic
notice includes a hyperlink to the secure website.
• If insurer uses a secure we site to deliver changes to an insured's policy,
certificate or contract (including endorsements or amendments), the
electronic notice to the insured must include:
• A list/summary of the changes
• A link to the complete document
• A statement substantially similar to the following, displayed in a prominent
manner: "There are changes in the terms or conditions of your policy, certificate
or contract of insurance."
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Electronic Delivery - Ohio
• Part 2: Policy documents that do not contain personally identifiable
information may be posted to the insurer's web site in lieu of any other
method of delivery, provided that:
• The policy documents are readily accessible by the insured and, once the policy
documents are no longer used by the insurer in this state, it is stored in a readily
accessible archive;
• The policy documents are posted in such a manner that the insured can easily identify
what's applicable to them and print or download the documents without charge and
without the use of any special program or application that is not readily available to the
public without charge;
• The insurer provides written notice at the time of issuance of a method by which the
insured may obtain upon request a paper or electronic copy of their policy documents
without charge;
• The insurer clearly identifies the applicable policy documents purchased by the insured
on any declaration page, certificate of insurance, summary of benefits, or other evidence
of coverage issued to the insured;
• The insurer gives notice, in the manner it customarily communicates with an insured, of
any changes to the policy documents and of the insured's right to obtain upon request a
paper or electronic copy of the policy, endorsements, or amendments without charge.
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Electronic delivery - California
• California started out different -- recent changes in the law are less about
moving ahead and more about catching up
• California Senate Bill 251 (effective January 1, 2014)
• Allows certain documents, previously excluded, to be delivered
electronically, provided that insurer complies with certain conditions:
• Offer of renewal required by 663 (personal auto) and 678 (commercial
insurance) and notice of conditional renewal required by 678.1 (commercial)
• Offer of coverage or renewal or any disclosure required by Section 10086
(earthquake coverage)
• Offer or renewal for a workers' compensation policy
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Electronic delivery - California
Conditions -- Insurer must:
• Obtain insured's consent - "opt-in" (verbal, written or electronic); retain
consent while policy in force and five years after
• Disclose (paper or electronically): that insured may opt-out any time and
how to do so, a description of what the insured is opting in to receive
electronically, the process or system to report a change or correction in
the insured's email address, the insurer's contact info
• Include insured's email address on the policy declaration page
• Annually provide one free printed copy, upon request
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Electronic delivery - California
Conditions cont.
• Maintain a process or system that demonstrates that the document was
both sent and received (consistent with UETA); retain information about
process/system while in force and for 5 years
• Upon receiving information indicating document was not received, must
within 2 business days either:
i.
Contact insured to confirm/update email address and resend
electronically (if unable to confirm/update must send by regular
mail); or
ii. Send by regular mail
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Electronic delivery - California
• CDI oversight
• Report to the Governor regarding impact and implementation by
January 1, 2018
• May suspend an insurer from being authorized to use electronic
delivery if there is a pattern or practice that demonstrates the insurer
has failed to comply with the requirements of the law with respect to
electronic delivery
• Sunset provision - January 1, 2019
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Questions?
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Thank you
Stephanie Duchene
(213) 892-2909
Stephanie.Duchene@dentons.com
Dentons US LLP
601 S. Figueroa Street
Suite 2500
Los Angeles, CA 90017
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