A curious case of electronic evidence (and perhaps an electronic signature).

• Author: Mason, Stephen

A recent appeal before the Court of Appeals of Michigan, Julie Ann Zulkiewski v. American General Life Insurance Company, (1) is of interest for a number of questions relating to evidence that it fails to reveal. The facts are that Dr. Ronald J. Zulkiewski took out a life insurance policy on March 19, 1999, with The Old Line Insurance Company, a predecessor company to American General. (2) He named his first wife as the primary beneficiary, and his parents, Ronald S. Zulkiewski and Sharon Zulkiewski, as the contingent beneficiaries. (3) The insurance policy provided that $250,000 would be '"paid to the beneficiary immediately upon receipt of due proof of death of the insured if death occurs prior to the [expiration] date.' The policy also provided that the beneficiary or beneficiaries would be 'as shown in the application unless changed.'" (4) The policy further provided that the insured could change the beneficiaries by means of a written notice. (5)

"On July 14, 2006, American General received a written change of beneficiary request," (6) presumably from Dr. Zulkiewski (but the opinion does not reveal this information), on a form supplied by them, to change the primary beneficiary of the policy to his mother, Sharon Zulkiewski, and the contingent beneficiary to his father. (7) American General subsequently confirmed the change by letter to Dr. Zulkiewski. (8)

For the purpose of the legal proceedings reported in this case, it was agreed that someone purporting to be Dr. Zulkiewski subsequently enrolled in the online account services offered by American General at 10:45 a.m. on December 17, 2008. (9) "[T]his service allows customers to obtain certain policy information and perform online transactions, one of which" enabled a policy holder to register changes to the beneficiary of the policy. (10) To use the service, the applicant was required to enter the policy number, social security number, mother's maiden name, and an e-mail address. (11) The applicant was required to choose and type in a password, and to re-type it a second time. (12) This requirement now appears to be standard practice with many commercial websites. The purpose of requiring a person to re-type the password a second time is to verify that the password is the one they meant to enter, and that there is no error. The same purpose is served when requiring a person to enter their e-mail address twice. The typing in of a password twice has no evidential value. (13)

American General sent a notification by e-mail to the person that duly registered as Dr. Zulkiewski, advising the recipient that he had enrolled in the "eService," with a warning that he should contact the company immediately if he had no intention of enrolling. (14) It was not disputed that at 10:51 a.m. on December 17, 2008, someone purporting to be Dr. Zulkiewski used the eService account to execute an online change of beneficiary request, changing the primary beneficiary to Julie Ann Zulkiewski. (15) The contingent beneficiary remained in the name of Sharon Zulkiewski. (16) On the same date, American General sent an e-mail to the registered e-mail address, confirming the change of beneficiary. (17) American...