eSignature Lawfulness for Employee Incident Report

How to eSign a document: e-signature lawfulness for Employee Incident Report

good morning man please the court counsel I'm gonna be very brief my name is Brandon Perkins I filed a notice of appearance limited parents for oral argument yesterday representing Kelvin Torres this case is a case that comes to the court on the lower court granting summary judgment and arranges for clarification notice yesterday yes you're are you associate with either vials in Beckham or the panel off the Powell wall for the panel all right thank you this case comes to the court on a final judgment entered after summary judgment we contend that there's a genuine issue of material fact the there is one issue that kind of is dispositive either the point the appellant right or the appellees right and that issue comes down to this um rejection form that was there's an electronic signature on it mr. Torres says he didn't sign it the appellee says well here it is the judge decided that the electronic signature was Gotham there was a conclusive presumption that couldn't be rebutted and so she granted summary judgment the time table sure he calls he to get an application she calls infinity insurance meets over the phone with the insurance rep on February 4th insurance representative takes down some information and binds coverage as of that day and then on February 8th some four days later there was this electronic signature that appeared on a form the waiving bodily injury and waiving uninsured motorist because I know the other side is saying that somehow the agent must have had his email in order to have him fill right okay so what the appellees essentially has explained in their brief is that when an application over the phone is done it's their process to either mail or email the application to the applicant to sign and in this case they said because we had his email he must have asked for email copies so our usual practice would be to email it and then this form rejecting bodily injury and uninsured motorist must have been sent back to us when he clicked the box that he you know agrees with that and that's his electronic signature and then after that he received a copy of the declaration page and he received a copy of basically what he's covered for and when was that that was sometime there he received he asked for additional insurance in April and he received a copy of like you said the the additional forms he denies reading it I'm not saying that that's good for him but when he got the forms so we're talking about it by April so by April is he must have been received the declaration page and the deck now the the page that was submitted here he opted not to get bodily injury you know and that's the issue of fact that we're saying so here's the if I if I could frame it for the court mr. Torres is saying he wanted full coverage admittedly in the deposition of mr. Torres he is all over the map on what full coverage means he is not an insurance agent he is not I guess my question is when he finally received everything in writing and even I guess you answered he didn't read it it says it very clearly waived bodily injury and that's in bold and then later on and that actual thing it says you know um rejection how long when he had that till the accident took place I mean if he received that I asked for full coverage get on the phone this mistake right and and I I completely understand where your honor is going with that the case law in Florida is pretty clear that you have to read applications that you get you have to read contracts it's not a defense to say I didn't read it and we're taking it one step prior to that and saying he never denied that he didn't want bodily injury he never denied he didn't want you on coverage but I appreciate the point that you're making which is essentially once he got into his hands the entire agreement you know did he get on the phone and call him and say you know why didn't I get this requires to be informed you know you're formed consent that if you waive it's done so knowingly and I know you're taking the position my client just gone on the phone and asked for total coverage and then there's some yeah I guess there's some dispute but that's neither here nor there because it is on a summary judgment we're here on a summary judgment basis but the question for me is it's kind of interesting maybe that's more for for the appellee there brings a very interesting question that if bodily injury is not requested but what never does that interesting it is a very interesting question indeed and in this case infinity provided um in bodily injury rejection forms I would suspect it was to cover their bases in case a court in the future decided you know I have you I personally have not seen any that address that specific subject so when we get to the to the summary judgment it's our contention that the trial judge should have looked and saw that there was a genuine issue of material my one zero and exactly what you're talking about there is a form that evidently was sent to him by email and it had a statement about bodily injury and had a statement about you um coverage and there is a box that's checked saying decline and then there is a typewritten name on a line and a date now your client said he never and what I'm going to ask is he never checked the box he never typed in his name or he never even sent that form back to the insurance company he says that he never got it he in it and here's the two places where he never he denied checking the box and that's a big difference in saying I never even sent the form back okay so in the request for admissions Infiniti requested you know did you admit that you got this form you check that you didn't want coverage and you sent it back he denied it at the deposition he says I don't remember ever getting the form so I can see how those two statements could be you know skewed by either party in this case the appellee could say well not remembering is different than saying I didn't get it the request for admission is a denial it should be up to the finder of fact to determine whether it was received or not we're using a term that's for some of us maybe I'd rather not use electronic signature what do you understand it takes to have an electronic signature I guess let me put it this way it's typing your name on the line and emailing it back is that an electronic signature it's it's my understanding yes an affirmative act by the person signing it such as typing the name similarly that we do when we file documents in court we put the s and followed by the name is a valid electronic signature like statutes on that there there there is a 2000 statute on electronic signature just as good as if it was so if in fact he yeah I typed my name on it and sent it back that would have been considered an electronic signature on the form absolutely you have to they have to offer um in the same amount is the bodily injury unless the insured rejects it or opt or opt for lesser coverage better but the insured has to affirmatively reject the UN correct correct here you have ostensibly an affirmative rejection also not not just a bit of the bodily injury liability covers correctly ostensibly had the policy sent to him contained neither checkbox but did not include bodily injury liability would there have been there would have been no need for you in rejection correct well and I think that's an open question and here's well I know that's that's the question of law that the reason I ask that is because if that's the case then the fact that seems to me that the fact that he has his policy for some period of time could come into play because you didn't call and correct because otherwise it seems to me that you have a question I don't know that you know statutes pretty specific but you know you're firmly reject that you win and I don't think having the policy and not reading it can I it operates to satisfy their with the affirmative rejection that's to end requirement statute I mean that's that's my view as I sit here I could be persuaded otherwise but you know what I'm saying I do and and I appreciate what you're saying I think the maybe the the line in the sand would be at renewal time if somebody you know continued with that policy and perhaps it's not as much as seeing it immediately calling because then what is it a week good enough is a month two months what if they're out of town so I think if we wanted to draw a line in the sand we would draw the same line I mean I can see reasonable that's how the whatever period of time was a reason but because you don't have that bright line required in the statute which is an affirmative rejection that's evidence on paper right but your argument is because at least one place he says he doesn't remember the other place he denied getting the form and sending it back that creates the factual issue that should have gotten beyond summary judgment to a Trier of fact and they would didn't have to take all of this other extraneous information I say extremely says other additional information draw inferences from it to support whether he did or didn't get it whether he should have read it that type of thing and if they decided he got it and sent it back you've got a conclusive presumption that he rejected it and they decided he didn't get it then he go the other way but it all comes down to whether that she should get beyond summary judgment is that its essence what your argument is absolutely I'll just add to it a smidgen the appellee to you know kind of carry their burden if you will or to try to carry their burden use deposition transcripts from the insurance agent who couldn't remember specifically anything but you know testified as to here's our practice and a lot of that testimony is cited in their brief and if you read it it states this must have happened this is probably when he did that it was equivocal statements and speculations actual memory or a note saying it was sent so I think your honors understand the issue here today we would ask for a reversal and a remand to give us an opportunity to try the case thank you very much represent affinity indemnity insurance company I'm holding the UM rejection form your honor record 614 it is the most critical work the only important evidence in the whole case because it is signed by electronically by mr. Torres and from that document the conclusions to the case flows because a conclusive presumption is established by the UN statute the argument that's being made was the wars that were waged back in the 1980s it was resolved by the legislature and amendments in 1982 and 1984 which said these rejections have to be made in writing they have to be used with specific language and once that's done once the insurance company can show this redesigned rejection form there is a conclusive presumption that it was a knowing rejection let me come back though it's a conclusive presumption I have two questions conclusive presumption that it was a knowing rejection or conclusive presumption that he's fine if this form signed by a named insured it will be conclusively presumed that there was an informed knowing rejection saying this is that he's not charity sign yes I don't well this goes to judge Davis's questions the question what is your position on whether like like with the rejection of the bodily injury liability like necessary here as a matter of law assume that there is no right can assume there is no bodily injury liability coverage in the policy is there still a necessity for a humorous action well the statute doesn't require a bodily injury liability rejection form right we included it well um is only required required if you have the bodily injury liability s and that's our issue one we didn't provide a policy with bi liability coverage therefore there was no need for the UN rejection form so we actually never get to all of these academic occupations well and then though I think that maybe you come to the other question race I think in this lawsuit is you know the allegation is well I wanted those things and you didn't give instance I think the period of time that he had the policy in hand yes he did he had reported some would become relevant would become perfect I don't think so your honor because of the conclusive presumption and the conclusive presumption as interpreted by the fifth District and by this court in cases put boundaries on that conclusive presumption saying it's an irrebuttable presumption and I agree with you if they're in the office and they they take a pencil and they sign it this case the issue is did he receive it and send it back he said now I understand one quick she said I don't remember another place he said he did yes the rep at least the copy that I'm looking at doesn't have any kind of indication to show how the insurance company got this back okay two answers to your question then judge first the electronics are going to track six six 8.50 Perrin 2h says an electronic signature means an electronic sound symbol or process attached or logically associated with a record executed or adopted by the person so that's independent they can just click a box that's their signature number two more importantly I think to your question is the circumstances surrounding the how this document this rejection form is generated sent and received let's go okay from the circumstances we're going to say these circumstances this date it came back all isn't that something to trier-of-fact us no sir because the statute says it's an irrebuttable presumption so if fact you says the knee rebuttable presumption if you got a signature on the the statute says if there's a rebuttable presumption if he signs it we've got to get to the point of how do we have they conclude a a matter of law that this must have come from him if there's no evidence that it came from his email address if there's nothing more than a form that's got a type name and a check on it and he says I never typed that name and I never put that check on it how do you decide whether he's telling the truth or not that's you look for the inferring that the circumstances the timing and all of that and you draw some inferences but that's a Trier fact I respectfully disagree your honor because that was the problem before 1984 that's when Judge Lee hand wrote in marches on Oh in 1985 for this court what do we have to do videotape all the times when people sign no sir that's what I just said you've got a piece of paper you got its physical signature that's one thing this the agent says either he signed it but he may have it back to the inspector signature what you've got is a piece of paper that has somebody's it's typed something on here and he says he never even saw the piece of paper he never even got now if you've got circumstances that show we do okay are they circumstances on the face of it or is that circumstances that you've got to make an inference from the 9 section 90 point 301 of the evidence code identical clarifies what an irrebuttable the presumption is they conclusive no please sir and it says in the commentary it says you have a premise fact from which there is an inference the inference must cannot be present that cannot be rebutted if the basic fact is established the basic fact is we've got this sign of the basic fact I've got a piece of paper but you have a fact or you have an issue as to where the piece of paper came we don't because the deposition of Miss marina and she saw in our testimony it's worthy justified she saw inside she testified from the company notes your honor which on cross-examination by plaintiff's counsel under oath the she'd was the person who spoke with mr. Torres she goes through the 13 entries on cross-examination and is asked at supplemental record 1 of 1 volume 1 page 26 asked by the plaintiff's counsel the emailing of the e signed documents this is a question was that something you did or the system did automatically and she asked for clarification she says the question is did you send the email and Miss marina says I entered his email address on the application she's on the telephone and the system sends out that email once we upload then she says on the next page I get a confirmation stating because my email address goes on there as well miss Karina's stating that it was sent and we only send it because we had it and then a confirm when it was assigned meaning it came back when he actually went in there and completed the eSignature so that is sworn testimony about how this was created he has sworn testimony that says I never got in sworn testimonies of the trial judge to believe her to come no no there was a conclusive presumption that the trial judge used from the statute to say that now that you have established infinity that this e signature exists and there is no fraud forgery or trickery which are the three basis tablished it because we believed her no okay if he says I never saw that piece of paper I never typed my name I never clicked the box he didn't think you says I sent it and I got a confirmation it came back it's obvious we did and that's where and it is this litigation that judge Ryder wrote in the court case back in 1985 said this is a problem as a torrent of litigation the legislature cured it legislature cured it with these amendments and that's what it just because there's these signatures doesn't change the analysis somebody can walk into an office let's take away from the signature yes my just hypothetical he comes in he's infront of her yes she goes through he signs right so we have heard deposition saying yes this is my procedure yes I showed him the document he signed then he comes and says I've never said I've never seen it I've never signed it your position is my virtue of that signed paper you have a conclusive presumption for the knowing rejection of you yes so even though he says I can bring her signature rag and will sin and show that's a fraud the concept is I think there's option automatically the president's signature on the paper even though I can prove that signatures are for all and that fraud is one of the exceptions recognized by this court fraud trickery or forgery so in this case that they raised there is no evidence of fraud trick or your fudge but but it seems to me that it's the movement for summary judgment it's your burden to to prove that that was that he signed that yes in which in which case you get the conclusive interruption that there was a knowing waiver the conclusive presumption is by establishing the premise fact which is this knowing rejection and the circumstances behind the creation of the document are established by the testimony of Miss Corrina she doesn't have she did not have a memory of this document she was testifying based on what the general practice was of her correct all the UM transactions will not be recalled personally I understand I mean baby what he's on the other side of that though I mean I'm not saying that's not confident evident evidence when I'm saying this is on the other side you've got that guy's seen a denial in a request for admission and I don't remember ever even receiving this form in the in an email let alone clicking the box well ladies what he said what he denied was the question was have you completed reviewed and electronically signed the application so it's three things he says denied that's the admission that's that hour and answer brief at page eight record to page 76 so it's a three-part and he could have read it I mean he could have not read it but signed it yes right yeah however there is a denial there's nothing in there that's admitted it's not sworn what he swore to was I don't remember it I don't remember is not evidence it's not it's specifically not as he's got as a denial that maybe an unsworn denial and prima facie proof under the statute that he signed this Kansas proof that it was sent out you got a prime official proof that it was received back yes and when it came back it happens to have a typewritten name on it and a check yes that and that as a matter of law proves that he signed it even though he said he did in the absence of fraud trickery or forgery in this court yes and when he says that doesn't ship that to you depend to have something more than simply the fact you sent it out and you got it back it's an irrebuttable presumption irrebuttable percentage analysis not get the signature and it's talking about three signature there's no read about if there's an inner bubble presumption once you get a signature on the paper yes how the signature gets to the paper is not covered by your bubble presumption just like she said just because you have a piece of name on the signature on the dotted line in the office if the guy can show I didn't sign he denies it I didn't sign him if we mailed it out to him and it came back mailed and signed we would have it be the same thing even our name what would be the difference it would be an irrebuttable presumption the irrebuttable presumption comes up when the the applicant or insured signs it if the question so to get to that you have to prove that the insured Sanga and that's I think what the focus of this inquiry is is that there might seem that was the suggestion is that there might have been an issue of fact as to whether in fact he signed it and it may be his answers didn't raise the position now that may be the issue but if there had been an absolute denial I never saw it your rebuttal for presumption doesn't cure the presumption doesn't them up until you prove that he put the signature there and that's the proof from the screen that's a male we sent the doubt there's only if there's an inference to be taken there's only one there's not any countervailing evidence there's no affidavit there's no sworn testimony that I deny receiving it there's only an unsworn denial that's vague he didn't when pressed and a lengthy deposition say I didn't get it it's I don't know I don't know I don't remember the you know fraud fraud forgery and trickery trickery like that was obviously written long before we had any signatures if somebody else checks the box and type the name is that a forgery I guess there's no evidence of that but the fraud forgery trickery make the irrebuttable presumption a constitutional burden on the UN policy that has me intrigued quite frankly I've not not heard that argument made before is there any case law supporting your position that wants vilely injury is rejected there's no need to trigger the UN I have I did not find one your honor but I believe that in the legislative scheme it's in the language where no no the very first lines of the UN statute say no liability insurance policy which provides bodily injury liability coverage shall be delivered without UN coverage or a rejection so I think the statute it only comes up in the context of the so and if you don't get a rejection form it's that you have um limits to the extent of your bi liability and if there's no bi liability then what's what could what relief could the court ever give to mr. Torres he didn't buy bodily injury liability is basically I mean that could be your argument if we agree with you on that we never get to the issue it's our issue one your honor and we asked him not to get into the electronic transfer Act that's just interact at all okay very good thank you thank you both well argued we're going to take about a 15 minute recess