The Office of General Counsel issued the following opinion on May 7, 2003 representing the position of the New York State Insurance Department.
RE: E-mail Documents in lieu of Paper Documents
1. Upon the request of a mortgagee or loss payee, may an insurer provide policy declarations electronically?
2. Upon the request of an insured, may an insurer provide endorsement changes and renewal policy declarations electronically?
1. Yes. Nothing in the Insurance Law specifically prohibits an insurer from providing policy declarations electronically.
2. Yes. Nothing in the Insurance Law specifically prohibits an insurer from providing endorsement changes and renewal policy declarations electronically.
The inquirers company has been asked by insureds, loss payees, and mortgagees, under personal automobile and homeowner policies, to provide policy declarations, renewal policy declarations and endorsement changes electronically, rather than in paper.
New York State enacted the Electronic Signatures and Records Act ("ESRA") as part of Chapter 4 of the Laws of 1999 that added the State Technology Law as new Chapter 57-A of the Consolidated Laws, N.Y. State Tech. Law §§ 101-109 (McKinney Pamphlet 2002). ESRA establishes a legal framework in New York for the conduct of electronic commerce. Pursuant to N.Y. Tech. Law § 105(3) (McKinney Pamphlet 2002), electronic records are given the same force and effect as records not produced by electronic means. Section 109 provides that the use of electronic records must be voluntary. An entity or person is not required to use an electronic record, unless otherwise provided by law.
The federal "Electronic Signatures in Global and National Commerce Act" (E-Sign), 15 U.S.C.A. §§ 7001-7031 (West Supp. 2002), provides that electronic records may not be denied legal effect, validity or enforceability solely because they are made electronically. Under E-Sign, consumers consent to the use of an electronic record must be obtained. See 15 U.S.C.A. §§ 7001(c)(1) (West Supp. 2002).
Accordingly, provided that the insured, loss payee or mortgagee consents to receiving the documents in electronic format, there would be no prohibition against the insurer providing the specified documents electronically. Electronic documents must comply with all applicable requirements of the Insurance Law, including any applicable formatting requirements.
The requirements contained in N.Y. Comp. Codes R. & Regs. tit. 11, § 243.0-243.3 (1996) (Reg. 152), Standards of Record Retention by Insurance Companies, remain applicable to electronic documents.
For further information one may contact Supervising Attorney Joan Siegel at the New York City Office.