08 Oct 2010

When can you Convert Legal Notices to Registered Email messages?

I was recently asked a question by an insurance company in Massachusetts that is likely a question on the minds of many who are looking to cut cost and reduce paper and mail use in the insurance sector. As such, let me share my response to their question, “…could we move to convert our thousands of insurance cancellation notices from first class mail with certificate of sending to Registered Email service by RPost?” Since RPost does not provide legal advice, the following should only be used as a framework for further analysis by one’s own legal counsel.

In response, to the question about whether legally one can convert insurance cancellation notices to Registered Email messages (assuming the insured party provided an email address to the insurance carrier for use in this purpose), we would first point to the section of the Massachusetts general laws, that state in reference to the method for sending insurance cancellation notices, that they may be, “(2)…”forwarded to said address by first class mail, postage prepaid, and a notice left or forwarded, as aforesaid, shall be deemed a sufficient notice. No written notice of cancellation shall be deemed effective when mailed by the company unless the company obtains a certificate of mailing receipt from the United States Postal Service showing the name and address of the insured stated in the policy.” [1]

Next, consider the following excerpt from the Locke Lord Bissell & Liddell LLP legal opinion that cites federal ESIGN and state UETA laws. “7. Can RPost’s Registered E-mail® service serve as the functional equivalent of paper mail, to be used in lieu of certified mail, registered mail, return receipt mail, private express mail services, fax logs and similar types of paper mail services and confirmations of receipt and content? Yes, under UETA and ESIGN, a signature, contract or other record relating to a transaction cannot be denied legal effect solely because it is in electronic form, unless an applicable law other than UETA specifically permits such denial. In the absence of such a specific prohibition, UETA and ESIGN permit the use of electronic signatures and electronic notices as functional equivalents to “wet ink” signatures, certified mail, registered mail, return receipt mail, facsimiles and similar types of notices that are traditionally delivered in paper, and the features of RPost’s Registered E-mail® service have generally been designed to serve as equivalents to the functions of the various types of paper-based communications that are generally absent in email.” [2]

Now, considering the general law does not specifically permit denial of legal effect solely because the notice is in electronic form, we would conclude that the federal Electronic Signatures in Global and National Commerce Act and state Uniform Electronic Transactions Act do support sending of the cancellation notices by electronic means if those electronic means are functionally equivalent to the specified means for successful notice which, in this case is first class mail with a certificate of mailing receipt from the United States Postal Service.  Further, one might consider the intent of the lawmakers when building the concept of functional equivalence into the Electronic Signatures in Global and National Commerce Act – – the intent that one would not need to explicitly add language to each statute to permit use of equivalent electronic means as long as the electronic means were functionally the same as the traditional methods.

The RPost service, Registered Email® with return Registered Receipt™ email delivery proof record should serve as a means of notice functionally equivalent to first class mail with a certificate of mailing receipt from the United States Postal Service, as it does provide the sender with a verifiable record of legal delivery (as defined by the Uniform Electronic Transactions Act), the official uniform time of receipt, and a record of the precise content sent and received (presumably confirming that the required name and address of the insured stated in the policy is included in the notice).

If you agree with this analysis, then you would conclude that you can convert your notices of cancellations sent by first class mail with a certificate of mailing receipt from the United States Postal Service to Registered Email service by RPost.

[1] MASSACHUSETTS GENERAL LAWS: PART I ADMINISTRATION OF THE GOVERNMENT (Chapters 1 through 182), TITLE XXII CORPORATIONS, CHAPTER 175 INSURANCE, Section 113A Policies; contents; commissioner’s approval; options to purchase policies or bonds; notice of reduced or eliminated coverages, Subsection 2.

[2] Locke Lord Bissell & Liddell “Legal Review of RPost Registered E-mail® service in context of Electronic Law relative to Authentication / Admissibility Requirements” dated October 20, 2007, Section II(A)(7).