The Case Against Dog Breed Discrimination by Homeowners' Insurance Companies

The Case Against Dog Breed Discrimination by Homeowners’ 2CHAPTER Insurance Companies Larry Cunningham This essay was originally published in the Connecticut Insurance Law Journal (Vol. ll, No. l, 2004–2005). The views expressed in this essay are the author’s own. n spring 2003 I moved from Vir- Thankfully, the story ended hap- The insurance industry has pre- ginia to Texas to begin work as a pily for my dogs and me. After weeks judged entire breeds of dogs as Itenure-track faculty member at of calling nearly every insurance being “too risky,” instead of taking Texas Tech University School of Law. agent in Lubbock, I was able to a more reasonable dog-by-dog I brought my two dogs with me: Saffy obtain insurance through the Texas approach to risk assessment. (a four-year-old mixed breed whose Farm Bureau, an organization that Major veterinary and breed reg- parents were a fluffy red Chow Chow advocates for farmers and farming istry organizations have strongly 1 and a big black Labrador retriever) issues. Had it not been for the Farm opposed breed discrimination in and Semona (a two-year-old rot- Bureau, I would have found myself insurance. Authors of scientific tweiler). Neither Semona nor Saffy on the horns of a horrible dilemma: studies on dog bites have even has ever bitten anyone. Neither has whether to buy a home or give up argued against the use of their shown any aggressive tendencies. my dogs. Anyone who knows me can data to support breed-based deci- Both are extremely playful and confirm that this dilemma would sion-making by insurers and legis- friendly animals. have been easy to resolve; I would latures. Dog owners across the After I placed a bid on a house in have chosen my furry family mem- country have spoken out about the 2 Lubbock, Texas, I began the search bers over home ownership. Sadly, horrible choice they have been for homeowners’ insurance—a however, many Americans are find- forced to make between obtaining process that I thought would be ing themselves in similar positions insurance and keeping their dogs. straightforward and easy. Much to and are opting to give up their dogs There has existed a historic ten- 3 my surprise, dozens of insurance to animal shelters. sion between risk classification and companies denied my application Breed discrimination by insur- social policy. Classification and outright. The reason? Semona is a ance companies is on the rise in the insurability decisions are usually rottweiler and Saffy is half-Chow. United States. Insurers are refusing “actuarially justified”—that is, the Rottweilers and Chow Chows are on to write homeowners’ policies for insurance company has identified a the “blacklist” of dog breeds. Some people who own breeds that the statistical correlation between a insurance companies believe they, insurance industry considers to be characteristic and increased risk. along with pit bulls, huskies, Dober- dangerous. Their decisions are Actuarial justification is frequently man pinschers, and other specified based solely on the breed of the ani- cited by insurers as a reason to breeds, are more likely to bite mal, not the individual characteris- avoid social regulation. Insurers humans and, in turn, cause liability tics of the particular dog. Dog bites exist to make a profit for their claims to be brought against their are certainly a public health con- shareholders. They do so by mini- owners. Even mixed breeds, like my cern. However, the insurance indus- mizing risk, which, in turn, mini- half-Chow, Saffy, are blacklisted. try’s approach to the problem is mizes claims paid out. This practice is known by many dog based on faulty assumptions and Actuarial justification is only the owners as “breed discrimination.” improper use of dog-bite statistics. first step in determining the social 25 propriety of a proposed underwrit- My argument is quite simple: shows how the insurance industry ing mechanism. Social utility of the decisions regarding the provision, is a highly regulated industry that risky conduct must also be consid- rating, termination, or renewal of a subjects itself to legislative control ered. Statutes across the United homeowners’ insurance policy where, as here, the public is being States are replete with examples of should not be based on ownership harmed by underwriting decisions legislatures overruling actuarially or possession of a particular breed not driven by actuarial justifica- justified practices in favor of com- of dog unless there is evidence of tion. I also offer a number of alter- peting social policies. “Red-lining” dog-specific risk. Insurers would natives to breed discrimination. is a classic example. Actuaries iden- concededly be actuarially justified tified statistical correlations be- in charging higher premiums or tween living in certain neighbor- declining coverage for people who hoods and increased risk for claims own dogs that have unjustly bitten I. Dog Breed against homeowners’ policies. As a in the past. After all, the best pre- Discrimination result, insurance companies began dictor of future behavior is past be- Breed discrimination in insurance to refuse to write policies in these havior. Breed discrimination, as it is a recent phenomenon that was high-risk neighborhoods. The currently stands, is not actuarially preceded by the enactment of neighborhoods in question were justified because scientists have “breed-specific legislation” (BSL) often economically depressed and not been able to accurately deter- by some state legislatures and occupied by members of racial or mine whether certain breeds are municipalities. Both breed dis- ethnic minorities. Legislatures and inherently more dangerous, or, crimination and BSL are a per- courts stepped in to prohibit red- instead, whether a breed’s high ceived response to highly publi- lining, despite the actuarial justifi- population is making it appear cized attacks by certain breeds, cation for the practice.4 that the breed is more dangerous. particularly pit bulls. Breed discrimination is a differ- The consequences of breed dis- ent animal altogether. Even with- crimination could not be greater. out considering the high social Homeowners’ insurance is the Highly Publicized utility of pet ownership, insurers gatekeeper to homeownership. have been unable to demonstrate Without homeowners’ insurance, a Attacks by an actuarial justification for dis- buyer cannot get a mortgage. For Pit Bulls criminating based on breed. As most Americans, if a person can- In the 1980s there were a number the multidisciplinary Task Force not obtain a mortgage, he cannot of high-profile attacks on humans on Canine Aggression and Human- buy a home. by pit bulls. These attacks led to a Canine Interactions concluded, In Part I of this article, I give an near-hysterical reaction by mem- “[D]og bite statistics are not overview of the problem: dog breed bers of the communities that really statistics, and they do not discrimination by insurers, as well were affected by the attacks and give an accurate picture of dogs as a related problem of breed-spe- by the legislators who repre- that bite.”5 The popular notion cific legislation by some states. In sented them. that pit bulls and rottweilers are Part II, I analyze the major scien- In March 1984, pit bulls inherently more likely to bite is tific studies on dog bites, showing attacked Angie Hands, a nine-year- simply not supported by the avail- that no one has adequately proven old girl in Tijeras, New Mexico.7 able statistics. that some breeds are more inher- The dogs bit her right leg to the When the social utility of pets is ently dangerous than others. In bone, ripped flesh from her arms, added to the equation, breed dis- Part III, I show that breed discrim- and tore her ear in half.8 The child crimination becomes even more ination and breed-specific legisla- survived but had to undergo years unreasonable. Dogs and other do- tion are opposed by most veteri- of reconstructive surgery.9 She had mesticated animals provide im- nary and animal protection been attacked by her uncle’s four measurable joy and happiness to groups. Part IV demonstrates that pit bulls in between her bus stop the families that own them. Even insurers have been ignoring the and her home.10 The small commu- some components of the legal sys- unique and special role that pets nity of Tijeras, located outside of tem itself have evolved to recog- play in millions of American Albuquerque, responded with an nize pets as being more than mere homes. I draw upon not only the outright ban on pit bull owner- chattel.6 In addition, the failure to profoundly personal arguments ship.11 Dog owners challenged the obtain homeowners’ insurance is a advanced by myself and others, but law in court, but the law was death knell for homeownership— also the way in which the law itself upheld as a constitutional exercise no insurance, no mortgage; no is evolving by recognizing pets as of the town’s police power.12 mortgage, no house. more than mere property. Part V 26 The State of the Animals IV: 2007 The attack on Angie Hands fol- a breed that is commonly known as tion, and the vagueness doctrine.34 lowed a number of other pit bull a pit bull dog”20 is automatically a Plaintiffs have challenged BSL on attacks around the country. A four- “vicious dog.”21 “Vicious dogs” due process grounds by arguing year-old girl was killed in Oregon must be penned or tied up when on that there was no “rational relation- City, Oregon, when she fell into a their owners’ premises.22 If off- ship” to a legitimate legislative goal yard where a pit bull was chained.13 premises, they must be tethered, or purpose.35 Courts have ruled that Two pit bulls mutilated their owner caged, or muzzled.23 Owners must BSL is a rational response to a per- in Edgemere, Maryland.14 A re- obtain liability insurance to provide ceived problem of dog bites by cer- cent, widely publicized attack in coverage in the event of a bite.24 tain breeds.36 They have also San Francisco has also brought the BSL has also occurred at the local rejected plaintiffs’ arguments that issue of aggressive dogs to the fore- municipal level.

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