In my post last week, I wrote about a bill passed by the Georgia General Assembly during this year’s session that formally authorizes the electronic delivery of insurance policies, as well as other types of documents, including cancellation and nonrenewal notices. Later that week, I received a call on the Free Legal Service program that I run for IIAG members in which I was asked if there was any statute that governed the binding effect of digitally scanned signatures on documents. I was not able to find any such statute that applied to Georgia transactions.
The Georgia Uniform Electronic Transactions Act, which is referred to in the bill that was recently passed, governs the legal validity of “electronic records” and “electronic signatures.” Unfortunately, the definition of “electronic signature” does not appear to cover a digitally scanned signature. An “electronic signature” is defined as an “electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”
In the absence of any statutory authority, it would be a matter of agreement between the parties to a transaction as to whether a digitally scanned signature would be considered binding on them. Many of the contracts I see and now prepare contain clauses that address this subject and state that a digitally scanned signature page will be binding on the party whose signature is on the page. If there has been no such agreement among the parties, a court will generally require the production of an original executed signature page, unless there is an acceptable reason for the inability to produce such a document, in which event a copy of the signature page would be acceptable proof of the execution of the document in question. However, this general rule would not apply if a specific statute governed the transaction in question and required the production of the original signature page in order for the document in question to have legal validity.
In light of the above state of the law in Georgia, if you do not want to have to obtain an executed original signature page of a document, that document should include a clause that states a digitally scanned or telefax copy of a signature page will be treated as binding on the person whose signature appears on that page. If you don’t want to have to change your existing documents, it would also be acceptable to have the other party agree in a separate document, which preferably should be signed by them but could be an e-mail sent by them, that a digitally scanned or telefax copy of all documents that may be signed by that party will be binding on them. Of course, you should check with your insurance companies and other providers on their policies concerning the acceptability of digitally scanned or telefax signature pages for their applications and other documents, as they may have reasons for wanting their agents to obtain executed original signature pages of such documents.
Many of you may know that the Georgia General Assembly adjourned for the year at midnight last Thursday, March 20, 2014. While Gould Hagler of the IIAG thought that what the General Assembly did as far as insurance related issues was not “especially exciting”, I thought that one of the bills he mentioned in his Capital Report the next day as having been passed was good news for Georgia insurance agents and another creates a potential E&O exposure for such agents.
The latter bill authorizes the cancellation of any insurance policy that permits an audit if the insured fails to submit to or allow an audit after having been contacted twice by the insurance company about the need for an audit. While this may be welcomed by some agents, the requirement in the bill that the insured’s agent must be included in the contact efforts may lead to E&O exposure if the agent does not attempt to contact the insured upon receiving such a notice from the insurance company. This would be especially true if the agent knew that the address being used for the insured by the insurance company was not correct or that the insured was unlikely to receive the notice for other reasons. This new law will be applicable to all insurance policies that are issued or renewed on or after July 1, 2014, if not vetoed by the Governor. In order to protect themselves from this potential E&O exposure, Georgia agents should consider including in their paperwork for insureds with policies that permit an audit a statement that they will assume no responsibility for notifying the insured of any attempts by the insurance company to contact the insured about scheduling an audit.
The good news for Georgia agents was the passage of a bill that confirmed the validity of the electronic delivery of insurance policies, if the procedures specified in the Georgia Uniform Electronic Transactions Act were followed. I wrote an article in 2011 for the IIAG’s Dec Page magazine that came to that conclusion with one potential problem. This bill removes that potential problem and also permits the electronic posting of insurance policies by the insurance company in lieu of the actual delivery of the policy to the insured, if certain requirements are met. (See Section 4 of the bill for those requirements.)
The bill goes even farther by authorizing the electronic delivery of other documents, including, but not limited to, cancellation or nonrenewal notices, that had been required to be mailed in the past. The bill imposes several conditions on the electronic delivery of such notices and other documents that do not apply to the electronic delivery of insurance policies. These conditions are also contained in Section 4 of the bill. The bill states that these conditions are in addition to those imposed by the federal Electronic Signatures in Global and National Commerce Act. This means that the requirements of that Act regarding the electronic delivery of notices and other documents in consumer transactions must also be followed. Those requirements are extensive and are explained in my Dec Page magazine article. This bill will become effective on its signature by the Governor or the Governor’s failure to veto it within 40 days after the end of the General Assembly’s session.
Many of my clients prefer not to go to the trouble of creating a written employment agreement for their producers. I think it is always better to document the more important aspects of an employment relationship, as memories tend to fade over time and can become “convenient.” In addition, any restrictions an employer may want to place on the competitive activities of an employee after the relationship ends must be in writing and signed by the employee to be enforceable against the employee. For this reason, I always advise my clients to have their producers sign restrictive covenant agreements, at a minimum.
A call I received a couple of weeks ago on the Free Legal Service Program that I provide for IIAG members reminded me of another subject that should always be addressed in writing with a producer. The caller has just terminated the employment of a producer, and the producer had asked about being paid the agreed on share of commissions for the insurance policies that had been sold by her before the date of termination, even for those policies for which the agency had not yet received payment. The caller had agreed to pay for those policies on which the commission was received during a short time period after the termination date, but after speaking to an attorney, the producer asked to be paid the agreed on share of all the commissions that the agency would receive for those policies regardless of when they might be received.
The caller thought this was unfair since the agency would have to assign another producer to the accounts to handle them going forward and perform the servicing duties that the terminated producer would have otherwise been expected to perform. Unfortunately, for the caller, under Georgia law, in the absence of an agreement to the contrary, a salesperson is entitled to receive the agreed on compensation for “all sales procured” by him or her before the date their employment is terminated, regardless of when the employer may receive payment for the goods or services sold. Thus, a producer would be entitled to be paid the agreed on share of the commissions received by the agency for all insurance policies or other products sold by the producer before the date their employment was terminated, in the absence of any agreement to the contrary.
The Georgia courts have established three conditions that must be met before the above rule will apply:
- The sale must have been completed (i.e., everything done to entitle the employer to receive payment for the product sold) prior to the employment termination date. If the employer or employee is required to do anything else to complete the sale, which action has not occurred before the employment termination date, the employee has no right to receive compensation for it.
- In addition, if the employer’s right to receive compensation for the sale depends on future actions of the buyer or a third party, which are within the sole discretion of the buyer or such third party, there has been no completed sale, if those actions do not occur before the employment termination date.
- If the employer can prove that the employee understood that the right to receive compensation for a sale depended on further actions by the employee after the sale was completed (e.g., the servicing of the account), the employee would not be entitled to receive compensation after the employment termination date for any sales that were completed before that date.
The courts have held that the right of a salesperson to receive compensation after their employment is terminated for work done prior to termination will be governed by any agreement reached on that subject, even if the agreement states that the employee is not entitled to receive any compensation after the termination date. To avoid the “convenient memory” problem, it would be better if this agreement were documented in some way and that document was signed by the employee. Otherwise, the content of any agreement reached would be the subject of a “swearing contest” that could only be resolved by a judge or jury, at a cost to the employer in time and money that could have easily been avoided.
I know that many small business people take pride in the fact that they run their businesses using handshake agreements with their employees and others, as it demonstrates they trust the other party to those agreements. There is nothing wrong with that approach, as long as the business owner understands what can happen if that trust turns out to have been misplaced. The compensation of producers is one area that can result in unpleasant consequences for an agency owner who runs their agency in that manner.
In keeping with the theme of last week’s blog post, I thought it would be a good idea to inform my readers of the requirements that govern the electronic storage of insurance records. The electronic storage of such records, combined with the ability to quickly search such records on an agency’s management system, can result in increased efficiency within an agency’s office, and when access to that system from outside the office is possible, can provide significant additional benefits to its producers and other employees who frequently work outside the office. By creating this capability, an agency will have achieved the MoClo of SoMoClo.
The requirements for the electronic storage of records are found in Georgia’s Uniform Electronic Transactions Act (the “Act”), which applies to all transactions that occurred on and after July 1, 2009 and any electronic records first created on or after that date. The provisions of this Act are explored in some detail in an article I wrote regarding what must be done in order for an insurance policy to be delivered electronically. (If a bill that is currently pending in the Georgia legislature is enacted into law, the reservations expressed in that article about the ability to deliver an insurance policy electronically will have been resolved.) If the requirements of the Act are not followed, then an electronic record will have no legal validity and any requirement that record be kept will not have been satisfied.
All Georgia insurance agents are required to keep certain records regarding each insurance transaction in which they are involved for a period of at least five years after the transaction is completed or the term of any contract (i.e., the policy) involved in that transaction expires, whichever is longer. In addition, for E&O exposure purposes, agencies and agents should be keeping these and other records for a minimum of six years after the expiration of the insurance policy in question. (Click here for an article that discusses these subjects in detail.)
The Act permits the electronic retention of any record required by law to be retained if the electronic record “(1) accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and (2) remains accessible for the retention period required by law.” In this situation, “remains accessible” means that you are able to create a hard copy from the electronic record that is identical to the original hard copy document at all times during the required time period. This would include any signatures on the original document. The Act permits the Georgia Insurance Commissioner to adopt regulations that impose additional requirements on the electronic storage of records subject to his jurisdiction, but to date, no such regulations have been adopted.
Given the length of the above time periods and the fast changing nature of the electronic storage of documents (it was not that long ago that were using floppy disks for this purpose), agencies and agents should make sure that the storage process used will allow the documents to be “readily accessible” for those time periods. The Act permits the use of third party services (e.g., in “the cloud”) to electronically store documents. However, if an agency or agent intends to store their records “in the cloud” and thereby, fully embrace MoClo, there are security considerations that will need to be addressed in order to satisfy the responsibility to keep confidential personally identifiable information of an agency’s or agent’s customers.
The acronyms SoMoClo and SMACK refer to the increasing intersection of various relatively new technologies and how they allow any business to become more efficient. According to a report from Vertafore, an insurance agency’s ability to integrate these new technologies into their business practices will be key to attracting a new generation of producers. The report points out that, according to the IIABA, within the next 10 years half of the current insurance workforce will reach retirement age. If even just a majority of those workers do actually retire, that will leave a large hole in many insurance agencies that will have to be filled by younger generations.
The Vertafore report contains a good general description of the significant differences between the three generations that are now of working age, Baby Boomers (born between 1946 and 1964), Generation X (born between 1965 and 1980). and Generation Y (born after 1980). In order for any business to continue to be successful, it is necessary to understand and appreciate these differences. One of the major differences between the Baby Boomers and Generation Y and to a lesser extent Generation X is the central role that technology has assumed in the lives of younger people. It has become their primary means of social interaction and they are used to conducting much of their activity over the internet. Another significant difference is that the younger generations are more focused on getting the job done than on how many hours they are in the office working.
So an agency that does not have the ability to allow its employees to work out of the office on their own schedules, while being connected to the office, will not be a place where the members of Generation X and Y want to work. That’s where SoMoClo and SMACK come in. The former term refers to the intersection of social media, mobility and the cloud and the latter to the intersection of social media, mobility, and big data analytics. How these intersections of technology are changing the way that agencies can, and some have argued must, do business going forward was the subject of an article in the January issue of IA Magazine.
In the IA Magazine article, a Kansas personal lines agency owner explained how he was able to use SoMoClo technologies to run his agency from China for two years, without any of his customers knowing he was there. Those technologies also let him run what amounts to a virtual agency, as all of his support staff work from their homes. The use of SMACK technologies permits the collection and analysis of huge amounts of data about an agency’s target customers and the development of a more targeted marketing approach that uses LinkedIn and other social media to deliver customer specific marketing messages. The ability to access this and other data remotely allows a producer to give an answer to a customer or potential customer’s question quickly and easily.
I would be interested to know what my readers are doing in these areas. Please feel free to share your experiences with me and my audience.