Jurris.COM
Taxonomy: CaliforniaInsurance Code
Section 38.5 Of General Provisions From California Insurance Code
38.5
. (a) Any written notice required to be given or mailed to any
person by an insurer relating to any insurance on risks or on
operations in this state not excepted by subdivision (a), (b), (c),
(d), (e), or (g) of Section 1851 from the coverage of Chapter 9
(commencing with Section 1850.4) of Part 2 of Division 1 of this code
may, if not excluded by subdivision (b) or (c) of Section 1633.3 of
the Civil Code, be provided by electronic transmission pursuant to
Title 2.5 (commencing with Section 1633.1) of Part 2 of Division 3 of
the Civil Code, if each party has agreed to conduct the transaction
by electronic means pursuant to Section 1633.5 of the Civil Code. The
affidavit of the person who initiated the electronic transmission,
stating the facts of that transmission into an information processing
system outside of the control of the sender or of any person that
sent the electronic record on behalf of the sender, is prima facie
evidence that the notice was transmitted and shall be sufficient
proof of notice. Any notice provided by electronic transmission shall
be treated as if mailed or given for the purposes of any provision
of this code, except as provided by subdivision (g) of Section
1633.15 of the Civil Code. The insurance company shall maintain a
system for confirming that any notice or document that is to be
provided by electronic means has been sent in a manner consistent
with Section 1633.15 of the Civil Code. A valid electronic signature
shall be sufficient for any provision of law requiring a written
signature. The insurance company shall retain a copy of the
confirmation and electronic signature, when either is required, with
the policy information so that they are retrievable upon request by
the Department of Insurance while the policy is in force and for five
years thereafter.
(b) The offer of renewal required by Sections 663 and 678, the notice of conditional renewal required by Section 678.1, and the offer of coverage or renewal or any disclosure required by Section 10086 and the offer of renewal for a workers' compensation policy may be provided by electronic transmission if an insurer complies with all of the following:
(1) An insurer, or insurer's representative, acquires the consent of the insured to opt in to receive the offer, notice, or disclosure by electronic transmission, and the insured has not withdrawn that consent, prior to providing the offer, notice, or disclosure by electronic transmission. An insured's consent may be acquired verbally, in writing, or electronically. If consent is acquired verbally, the insurer shall confirm consent in writing or electronically. The insurer shall retain a record of the insured's consent to receive the offer, notice, or disclosure by electronic transmission with the policy information so that it is retrievable upon request by the Department of Insurance while the policy is in force and for five years thereafter.
(2) An insurer discloses, in writing or electronically, to the insured all of the following:
(A) The opt in to receive the offer, notice, or disclosure by electronic transmission is voluntary.
(B) That the insured may opt out of receiving the offer, notice, or disclosure by electronic transmission at any time, and the process or system for the insured to opt out.
(C) A description of the offer, notice, or disclosure that the insured will receive by electronic transmission.
(D) The process or system to report a change or correction in the insured's email address.
(E) The insurer's contact information, which includes, but is not limited to, a toll-free number or an insurer's Internet Web site address.
(3) An insurer shall include the insured's email address on the policy declaration page.
(4) An insurer shall annually provide one free printed copy of any offer, notice, or disclosure described in this subdivision upon request by the insured.
(5) An insurer shall maintain a process or system that can demonstrate that the offer, notice, or disclosure provided by electronic transmission was both sent and received consistent with Section 1633.15 of the Civil Code. If a different method of sending or receiving is agreed upon by the insurer and the insured pursuant to Section 1633.15 of the Civil Code, an insurer shall comply with the provisions of this subdivision. The insurer shall retain and document information so that the documentation and information is retrievable upon request by the Department of Insurance while the current policy is in force and for five years thereafter related to its process or system demonstrating that the offer, notice, or disclosure provided by electronic transmission was sent to the insured by the applicable statutory regular mail delivery deadlines and received electronically. The offer, notice, or disclosure provided by electronic transmission shall be treated as if mailed so long as the insurer delivers it to the insured in compliance with the applicable statutory regular mail delivery deadlines.
(A) Acceptable methods for an insurer to demonstrate that the offer, notice, or disclosure was sent to the insured include simple mail transfer protocol server log files indicating transmission, or other methodologies indicating sent transmission consistent with standards set forth in Section 1633.15 of the Civil Code.
(B) Acceptable methods for an insurer to demonstrate that the offer, notice, or disclosure was received by the insured include server log files indicating that the email or application has been received, or log files showing that the insured logged into his or her secured account with the insurer, or other methodologies indicating received transmission consistent with standards set forth in Section 1633.15 of the Civil Code.
(6) If the offer, notice, or disclosure is not delivered directly to the electronic address designated by the insured, but placed at an electronic address accessible to the insured, an insurer shall notify the insured in plain, clear, and conspicuous language at the electronic address designated by the insured that describes the offer, notice, or disclosure, informs that insured that it is available at another location, and provides instructions to the insured as to how to obtain the offer, notice, or disclosure.
(7) (A) Upon an insurer receiving information indicating that the offer, notice, or disclosure sent by electronic transmission was not received by the insured, the insurer shall, within two business days, either clause (i) or (ii):
(i) Contact the insured to confirm or update the insured's email address and resend the offer, notice, or disclosure by electronic transmission. If the insurer elects to resend the offer, notice, or disclosure by electronic transmission, the insurer shall demonstrate the transmission was received by the insured, pursuant to paragraph (5). If the insurer is unable to confirm or update the insured's email address, the insurer shall resend the offer, notice, or disclosure by regular mail to the insured at the address shown on the policy.
(ii) Resend the offer, notice, or disclosure initially provided by electronic transmission by regular mail to the insured at the address shown on the policy.
(B) If the insurer sends the first electronic offer, notice, or disclosure within the time period required by law and the insurer complies with both paragraph (5) and subparagraph (A) of this paragraph, the electronic offer, notice, or disclosure sent pursuant to clause (i) or (ii) of subparagraph (A) shall be treated as if mailed in compliance with the applicable statutory regular mail delivery deadlines.
(8) On or before January 1, 2018, the commissioner shall submit a report 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 authorized by this section. The report shall include input from insurers, consumers, and consumer organizations, and shall include an assessment of the department's experience pertaining to the authorization of the electronic transmission of insurance renewals as authorized by this section.
(c) The department may suspend an insurer from providing offers, notices, or disclosures by electronic transmission if there is a pattern or practices that demonstrate the insurer has failed to comply with the requirements of this section. An insurer may appeal the suspension and resume its electronic transmission of offers, notices, or disclosures upon communication from the department that the changes the insurer made to its process or system to comply with the requirements of this section are satisfactory.
(d) This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.
(b) The offer of renewal required by Sections 663 and 678, the notice of conditional renewal required by Section 678.1, and the offer of coverage or renewal or any disclosure required by Section 10086 and the offer of renewal for a workers' compensation policy may be provided by electronic transmission if an insurer complies with all of the following:
(1) An insurer, or insurer's representative, acquires the consent of the insured to opt in to receive the offer, notice, or disclosure by electronic transmission, and the insured has not withdrawn that consent, prior to providing the offer, notice, or disclosure by electronic transmission. An insured's consent may be acquired verbally, in writing, or electronically. If consent is acquired verbally, the insurer shall confirm consent in writing or electronically. The insurer shall retain a record of the insured's consent to receive the offer, notice, or disclosure by electronic transmission with the policy information so that it is retrievable upon request by the Department of Insurance while the policy is in force and for five years thereafter.
(2) An insurer discloses, in writing or electronically, to the insured all of the following:
(A) The opt in to receive the offer, notice, or disclosure by electronic transmission is voluntary.
(B) That the insured may opt out of receiving the offer, notice, or disclosure by electronic transmission at any time, and the process or system for the insured to opt out.
(C) A description of the offer, notice, or disclosure that the insured will receive by electronic transmission.
(D) The process or system to report a change or correction in the insured's email address.
(E) The insurer's contact information, which includes, but is not limited to, a toll-free number or an insurer's Internet Web site address.
(3) An insurer shall include the insured's email address on the policy declaration page.
(4) An insurer shall annually provide one free printed copy of any offer, notice, or disclosure described in this subdivision upon request by the insured.
(5) An insurer shall maintain a process or system that can demonstrate that the offer, notice, or disclosure provided by electronic transmission was both sent and received consistent with Section 1633.15 of the Civil Code. If a different method of sending or receiving is agreed upon by the insurer and the insured pursuant to Section 1633.15 of the Civil Code, an insurer shall comply with the provisions of this subdivision. The insurer shall retain and document information so that the documentation and information is retrievable upon request by the Department of Insurance while the current policy is in force and for five years thereafter related to its process or system demonstrating that the offer, notice, or disclosure provided by electronic transmission was sent to the insured by the applicable statutory regular mail delivery deadlines and received electronically. The offer, notice, or disclosure provided by electronic transmission shall be treated as if mailed so long as the insurer delivers it to the insured in compliance with the applicable statutory regular mail delivery deadlines.
(A) Acceptable methods for an insurer to demonstrate that the offer, notice, or disclosure was sent to the insured include simple mail transfer protocol server log files indicating transmission, or other methodologies indicating sent transmission consistent with standards set forth in Section 1633.15 of the Civil Code.
(B) Acceptable methods for an insurer to demonstrate that the offer, notice, or disclosure was received by the insured include server log files indicating that the email or application has been received, or log files showing that the insured logged into his or her secured account with the insurer, or other methodologies indicating received transmission consistent with standards set forth in Section 1633.15 of the Civil Code.
(6) If the offer, notice, or disclosure is not delivered directly to the electronic address designated by the insured, but placed at an electronic address accessible to the insured, an insurer shall notify the insured in plain, clear, and conspicuous language at the electronic address designated by the insured that describes the offer, notice, or disclosure, informs that insured that it is available at another location, and provides instructions to the insured as to how to obtain the offer, notice, or disclosure.
(7) (A) Upon an insurer receiving information indicating that the offer, notice, or disclosure sent by electronic transmission was not received by the insured, the insurer shall, within two business days, either clause (i) or (ii):
(i) Contact the insured to confirm or update the insured's email address and resend the offer, notice, or disclosure by electronic transmission. If the insurer elects to resend the offer, notice, or disclosure by electronic transmission, the insurer shall demonstrate the transmission was received by the insured, pursuant to paragraph (5). If the insurer is unable to confirm or update the insured's email address, the insurer shall resend the offer, notice, or disclosure by regular mail to the insured at the address shown on the policy.
(ii) Resend the offer, notice, or disclosure initially provided by electronic transmission by regular mail to the insured at the address shown on the policy.
(B) If the insurer sends the first electronic offer, notice, or disclosure within the time period required by law and the insurer complies with both paragraph (5) and subparagraph (A) of this paragraph, the electronic offer, notice, or disclosure sent pursuant to clause (i) or (ii) of subparagraph (A) shall be treated as if mailed in compliance with the applicable statutory regular mail delivery deadlines.
(8) On or before January 1, 2018, the commissioner shall submit a report 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 authorized by this section. The report shall include input from insurers, consumers, and consumer organizations, and shall include an assessment of the department's experience pertaining to the authorization of the electronic transmission of insurance renewals as authorized by this section.
(c) The department may suspend an insurer from providing offers, notices, or disclosures by electronic transmission if there is a pattern or practices that demonstrate the insurer has failed to comply with the requirements of this section. An insurer may appeal the suspension and resume its electronic transmission of offers, notices, or disclosures upon communication from the department that the changes the insurer made to its process or system to comply with the requirements of this section are satisfactory.
(d) This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.
