Goodbye 👋 Specific Dog Breed Exclusions in New York

In November 2021 I blogged about the signing into law new section 3421 of the New York Insurance Law, effective January 28, 2022, which provided:

§ 3421. Homeowners' liability insurance; dogs. 

 1. With respect to homeowners' insurance policies as defined in section two thousand three hundred fifty-one of this chapter, no insurer shall refuse to issue or renew, cancel, or charge or impose an increased premium or rate for such policy or contract based solely upon harboring or owning any dog of a specific breed or mixture of breeds. 

2. The provisions of this section shall not prohibit an insurer from refusing to issue or renew or from canceling any such contract or policy, nor from imposing a reasonably increased premium or rate for such a policy or contract based upon the designation of a dog of any breed or mixture of breeds as a dangerous dog pursuant to section one hundred twenty-three of the agriculture and markets law, based on sound underwriting and actuarial principles reasonably related to actual or anticipated loss experience subject to the applicable provisions of section three thousand four hundred twenty-five of this article.

I mentioned then that the new law mentioned only underwriting functions, not claims--making it illegal to refuse to issue or renew a policy, or to cancel or charge more premium for a policy based on a policyholder's or prospective policyholder's "harboring or owning any dog of a specific breed or mixture of breeds."  There was nothing in the new statute expressly prohibiting insurers from including a canine exclusion in a New York homeowners policy or in denying coverage based on such an exclusion. 

That was then.  This is now.  

On December 15, 2022, New York Governor Kathy Hochul signed into law A9284/S8315A, amending subsection 1 of section 3421 as follows (added language in red CAPS):

1. With respect to homeowners' insurance policies as defined in section two thousand three hundred fifty-one of this chapter, no insurer shall refuse to issue or renew, cancel, or charge or impose an increased premium or rate for such policy or contract, OR EXCLUDE, LIMIT, RESTRICT, OR REDUCE COVERAGE UNDER SUCH POLICY OR CONTRACT based solely upon harboring or owning any dog of a specific breed or mixture of breeds.

The bill's Summary explained that the bill "[c]larifies the insurance law in such a manner as to prohibit insurance companies from excluding, limiting, restricting, or reducing coverage on a homeowners' insurance policy based on ownership of a particular breed of dog." (my emphasis)  

Clarifies, my ass.  It ADDS to the insurance law.  We'll call it a legislative mulligan.  Wouldn't be the first and won't be the last time legislative drafting missed its intended mark.  

In any event, the amended Insurance Law §3421 took effect on March 15, 2023.

Does someone in Albany read my blog?  Probably not, but the original 3421's scope clearly was limited only to the underwriting function.  That's been enlarged to include the claims function.

It is important to note, however, that the amended law:

• applies only to "homeowners' insurance policies" as defined in New York Insurance Law § 2351; and 
  
  
• proscribes certain underwriting and claims acts and practices "based solely upon harboring or owning any dog of a specific breed or mixture of breeds."

Solely upon harboring/owning a dog of a specific breed or mixture of breeds.

What about excluding liability coverage under a homeowners insurance policy for all breeds of dogs?  A categorical canine exclusion?  Does Insurance Law §3421 prohibit such an exclusion?

On the face of the statute, the answer has to be no.  Specific ≠ all.  

I learned this morning that the NYSDFS is reviewing HO policy forms for compliance with the amended law.  But you, New York HO insurers, may already know that.