N.Y. Insurance Law § 3458: Electronic notices and documents

* § 3458. Electronic notices and documents. (a) As used in this

section, the following words shall have the following meanings:

(1) "Delivered by electronic means" includes:

(A) delivery to an electronic mail address at which a party has

consented to receive notices or documents; or

(B) posting on an electronic network or site accessible via the

internet, mobile application, computer, mobile device, tablet, or any

other electronic device, together with separate notice of the posting

which shall be provided by electronic mail to the address at which the

party has consented to receive notice or by any other electronic

delivery method that has been consented to by the party.

(2) "Party" means any recipient of any notice or document required as

part of a property/casualty insurance transaction, including but not

limited to an applicant, an insured, or a policyholder.

(3) "Property/casualty insurance" means basic kinds of insurance and

non-basic kinds of insurance, as defined in section four thousand one

hundred one of this chapter, provided that "property/casualty insurance"

shall not include accident and health insurance as defined in paragraph

three of subsection (a) of section one thousand one hundred thirteen of

this chapter.

(b) Subject to the requirements of this section, any notice to a party

or any other document required under this chapter in a property/casualty

insurance transaction or that is to serve as evidence of

property/casualty insurance coverage may be delivered by electronic

means so long as it meets the requirements of article three of the state

technology law. Where this chapter requires that notice be mailed or

delivered to an address shown in the policy, the notice may be delivered

by electronic means to an electronic address not specified in the

policy.

(c) Delivery of a notice or document in accordance with this section

shall be considered equivalent to any delivery method required under

this chapter, other than section three thousand one hundred eleven of

this chapter, including delivery by first class mail; first class mail,

postage prepaid; certified mail; certificate of mail; or certificate of

mailing.

(d) A notice or document may be delivered by electronic means by an

insurer to a party under this section if:

(1) the party has affirmatively consented to that method of delivery

and has not withdrawn the consent;

(2) the party, before giving consent, is provided with a clear and

conspicuous statement informing the party of:

(A) the right of the party to withdraw consent to have a notice or

document delivered by electronic means, at any time, and any conditions

or consequences imposed in the event consent is withdrawn;

(B) the types of notices and documents to which the party's consent

would apply;

(C) the right of a party to have a notice or document delivered in

paper form; and

(D) the procedures a party must follow to withdraw consent to have a

notice or document delivered by electronic means and to update the

party's electronic mail address;

(3) the party:

(A) before giving consent, is provided with a statement of the

hardware and software requirements for access to and retention of a

notice or document delivered by electronic means; and

(B) consents electronically, or confirms consent electronically, in a

manner that reasonably demonstrates that the party can access

information in the electronic form that will be used for notices or

documents delivered by electronic means as to which the party has given

consent; and

(4) after consent of the party is given, the insurer, in the event a

change in the hardware or software requirements needed to access or

retain a notice or document delivered by electronic means creates a

material risk that the party will not be able to access or retain a

subsequent notice or document to which the consent applies:

(A) provides the party with a statement that describes:

(i) the revised hardware and software requirements for access to and

retention of a notice or document delivered by electronic means; and

(ii) the right of the party to withdraw consent without the imposition

of any condition or consequence that was not disclosed at the time of

initial consent; and

(B) complies with paragraph two of this subsection.

(c) Delivery of a notice or document in accordance with this section

shall be considered equivalent to any delivery method required under

this chapter, other than section three thousand one hundred eleven of

this chapter, including delivery by first class mail; first class mail,

postage prepaid; certified mail; certificate of mail; or certificate of

mailing.

(e) (1) Before a notice or document is delivered by electronic means,

an insurer shall obtain a party's consent to deliver that kind of notice

or document by electronic means. A party's consent to receive one type

of notice or document shall not be construed as a blanket consent for

every kind of notice and document to be delivered by electronic means. A

party's consent shall only apply to the types of notices and documents

identified in the clear and conspicuous information statement provided

to the consenting party, as required by subparagraph (B) of paragraph

two of subsection (d) of this section.

(2) Any electronic mail being sent by an insurer to a party in

connection with the delivery of a cancellation notice, non-renewal

notice or conditional renewal notice delivered by electronic means shall

include in the subject line and body of the communication clear and

conspicuous language alerting the receiving party as to the importance

of the communication and the type of notice being delivered by

electronic means to such party.

(f) This section does not affect requirements related to content or

timing of any notice or document required under this chapter.

(g) If a provision of this chapter requiring a notice or document to

be provided to a party expressly requires verification or acknowledgment

of receipt of the notice or document, the notice or document may be

delivered by electronic means only if the method used provides for

verification or acknowledgment of receipt.

(h) The legal effectiveness, validity, or enforceability of any

contract or policy of insurance executed by a party may not be denied

solely because of the failure to obtain electronic consent or

confirmation of consent of the party in accordance with subparagraph (B)

of paragraph three of subsection (d) of this section.

(i) (1) A withdrawal of consent by a party does not affect the legal

effectiveness, validity, or enforceability of a notice or document

delivered by electronic means to the party before the withdrawal of

consent is effective.

(2) A withdrawal of consent by a party is effective within a

reasonable period of time after receipt of the withdrawal by the

insurer.

(3) Failure by an insurer to comply with paragraph four of subsection

(d) and subsection (k) of this section may be treated, at the election

of the party, as a withdrawal of consent for purposes of this section.

(j) This section does not apply to a notice or document delivered by

an insurer in an electronic form before the effective date of this

section to a party who, before that date, has consented to receive a

notice or document in an electronic form otherwise allowed by law.

(k) If the consent of a party to receive certain notices or documents

in an electronic form is on file with an insurer before the effective

date of this section, and pursuant to this section, an insurer intends

to deliver additional notices or documents to such party in an

electronic form, then prior to delivering such additional notices or

documents electronically, the insurer shall:

(1) provide the party with a statement that describes:

(A) the notices or documents that shall be delivered by electronic

means under this section that were not previously delivered

electronically; and

(B) the party's right to withdraw consent to have notices or documents

delivered by electronic means, without the imposition of any condition

or consequence that was not disclosed at the time of initial consent.

(2) comply with paragraph two of subsection (d) of this section.

(l) An insurer shall deliver a notice or document by any other

delivery method permitted by law other than delivery by electronic means

if:

(1) the insurer attempts to deliver by electronic means the notice or

document and has a reasonable basis for believing that the notice or

document has not been received by the party; or

(2) the insurer becomes aware that the electronic mail address

provided by the party is no longer valid.

(m) This section may not be construed to modify, limit, or supersede

the provisions of the federal Electronic Signatures in Global and

National Commerce Act, Public Law 106-229, as amended.

* NB There are 2 § 3458's