BILL ANALYSIS Ó SENATE COMMITTEE ON INSURANCE Senator Richard Roth, Chair 2015 - 2016 Regular Bill No: AB 447 Hearing Date: July 8, 2015 ----------------------------------------------------------------- |Author: |Maienschein | |-----------+-----------------------------------------------------| |Version: |June 2, 2015 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Erin Ryan | | | | ----------------------------------------------------------------- Subject: Property insurance: discrimination. SUMMARY Prohibits an insurer admitted to issue insurance policies covering real property designed for human habitation, including single family homes, condominiums and multiunit commercial apartments, from failing or refusing to accept an application for, issue a policy to an applicant for insurance, or cancel a policy based on the source of income of residential tenants or the receipt of housing assistance by tenants from the federal or state government or from a local public entity, and prohibits the insurer from requiring this information on the application for insurance, as specified. DIGEST Existing law 1) Prohibits an admitted insurer from using sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation under conditions less favorable to the insured than in other comparable cases, for purposes of accepting applications for, issuing policies of, or cancelling policies of property or commercial insurance. 2) Prohibits using any of these characteristics as a condition or risk to justify charging a policyholder a higher rate, premium, or charge for insurance. AB 447 (Maienschein) Page 2 of ? 3) Prohibits applications for insurance, as specified, from including any identification of, or requiring an applicant to provide, any information as to these characteristics. 4) The Insurance Rate Reduction and Reform Act (Proposition 103, as approved by the voters in 1988) (Prop. 103), requires specified insurance rates to be approved by the Insurance Commissioner (IC) prior to their use. This bill 1) Prohibits an insurer admitted in California to issue insurance policies covering real property designed for human habitation, including single family homes, condominiums and multiunit commercial, from failing or refusing to accept an application for, issue a policy to an applicant for insurance, or cancel a policy based on the following characteristics: a. The level or source of income of an individual or group of people residing or intending to reside upon the property to be insured, if they do not own the property; b. The receipt of assistance, intended for housing, from the federal or state government, or from a local public entity, as defined, including "Section 8" vouchers, by an individual or group of people residing or intending to reside upon the property. 2) Prohibits an application for insurance, or a report furnished by an insurer for use in determining eligibility for insurance, from having any identification of, or requirement to provide information as to the characteristics in paragraph 1, above. 3) Provides that if a property is used for both residential and commercial purposes, the insurer may consider the source of income for the non-residential tenant in determining the insurability of an applicant. 4) Specifies that nothing in the bill prohibits an insurer from failing or refusing to accept an application, issuing, canceling or failing to renew, a policy as a result of AB 447 (Maienschein) Page 3 of ? underwriting based on any and all factors other than those expressly prohibited. COMMENTS 1. Purpose of the bill To prohibit insurers from using the source of income of, or the use of state or federal housing assistance by, tenants as a basis to decide whether to accept an application by the property owner for property insurance, because it is viewed as a discriminatory practice. 2. Background Unlike in the highly regulated auto insurance market, there are relatively few limitations on insurer underwriting and pricing in the property insurance market. Insurers must, however, submit their rates for prior approval of the IC under Prop. 103. Insurers may use a variety of factors and characteristics to assess the risk associated with insuring the property, including location, structural condition, age, design, management of the property, ownership, maintenance, hazards on the property, tenants and tenant mix, presence of safety devices such as fire and smoke alarms, lighting, sports facilities or swimming pools. Some insurers look at the presence of subsidized tenants as a factor in evaluating the property's underwriting risk, and according to the proponents, some insurers have not offered certain products, or cancelled policies, because of the presence of subsidized tenants. As a matter of public policy, insurers are prohibited from arbitrary and unreasonable discrimination against the protected classes of the Unruh Civil Rights Act. Those classes include age, ancestry, color, disability, genetic information, marital status, national origin, race, religion, sex, and sexual orientation. The U.S. Supreme Court took a broad approach to housing discrimination in its recent decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, holding that under the federal Fair Housing Act it is enough to show that minorities are negatively affected, even if no intent to discriminate has been found. AB 447 (Maienschein) Page 4 of ? The housing choice voucher program (Section 8) is the federal government's major program for assisting very low-income families, the elderly, and the disabled to afford decent, safe, and sanitary housing in the private market. Since housing assistance is provided on behalf of the family or individual, participants are able to find their own housing, including single-family homes, townhouses and apartments. The participant is free to choose any housing that meets the requirements of the program and is not limited to units located in subsidized housing projects. A family that is issued a housing voucher is responsible for finding a suitable housing unit of the family's choice where the owner agrees to rent under the program. Rental units must meet minimum standards of health and safety and the housing subsidy is paid to the landlord directly by the public housing authority on behalf of the participating family. The family then pays the difference between the actual rent charged by the landlord and the amount subsidized by the program. The role of the landlord in the voucher program is to provide decent, safe, and sanitary housing to a tenant at a reasonable rent. The dwelling unit must pass the program's housing quality standards and be maintained up to those standards as long as the owner receives housing assistance payments. State and local government programs that proponents point to as similar in purpose are also included in the bill. Proponents of this bill argue that some insurers have discriminated against property owners who participate in housing assistance programs, treating similarly situated properties differently, or refusing to offer or renew policies, simply because of the presence of tenants who have availed themselves of legitimate government benefits. They argue this serves as a disincentive for property owners to participate in these important affordable housing programs, particularly in high-cost California. Nothing in the bill prevents an insurance company from properly underwriting the property for any and all risks, or from declining to insure a property for any number of reasons. The insurer would not, however, be able to simply not offer insurance to the category of properties that allow Section 8 tenants. This bill was prompted in part by one AB 447 (Maienschein) Page 5 of ? company that has refused to offer an apartment policy product to subsidized, public or government funded complexes, claiming these properties present unknown, complex, specialized or higher risk exposures. It further justified its position because the market is adequately covered by surplus lines, specialty and niche insurers, risk retention groups and other insurers that have particular expertise with subsidized, public or government funded housing. The insurer in that case had a standard apartment insurance policy and apparently did no on-site investigations or underwriting of a property prior to issuing a policy if information provided on the application met specified criteria. It should be noted that surplus lines insurers are not admitted or licensed to offer insurance in California, and this bill and the anti-discrimination provision generally, applies only to admitted insurers. The fundamental question raised by this bill is whether an insurer should be able to treat similarly situated properties differently based simply on the presence of subsidized tenants. The insurer would be able to use the underwriting process to determine if the property actually posed an unacceptable risk, for example if the building was not properly maintained, if it posed higher safety concerns, or if it had a history of claims. None of these conditions or problems would be unique to subsidized housing. At the same time, some insurers claim that insurers may have particular expertise in the types of properties they have chosen to insure. They believe that any restrictions on their ability to evaluate the type of property can eliminate flexibility, skew underwriting, and result in market dislocations. 3. Support Housing California has sponsored AB 447 to ensure that a property owner would not be forced to discriminate against tenants based on the source of their income. The California Apartment Association (CAA) supports AB 447 because admitted insurers in California have ben refusing to cover properties that accept Housing Choice Vouchers, forcing CAA's members to obtain significantly more expensive coverage from non-admitted insurers or terminate their participation in the Voucher program. The viability of the AB 447 (Maienschein) Page 6 of ? Housing Choice Voucher Program is entirely dependent on the availability of housing in the private market. 4. Opposition According to the American Insurance Association, AB 447 would force property insurers to provide coverage of rental properties without the ability to properly evaluate risk. Restrictions and limitations on underwriting adversely affect the ability of carriers to properly rate and make coverage determinations. Currently there is market availability of insurance for multi-family low-income or rent subsidized rental properties from admitted insurers, surplus lines carriers, specialty and niche carriers and risk retention groups. There is no need to force property insurers to provide insurance without the ability to consider all relevant factors that may affect the risks being insured. The Association of California Insurance Companies opposes AB 447 because it prevents insurers from considering all relevant information in the provision of coverage to owners of residential rental property-in this case whether a building owner has chosen to rent to tenants whose rents are subject to subsidies. Absent an availability crisis, and with rates approved by the department of Insurance, it seems inappropriate to place restrictions on a company's underwriting ability. POSITIONS Support California Coalition for Rural Housing (sponsor) Housing California (sponsor) Western Center on Law and Poverty (sponsor) California Apartment Association California Housing Consortium City of Berkeley Rent Stabilization Board Community Housing Works Downtown Women's Center First Place for Youth Housing Leadership Council of San Mateo County Law Foundation of Silicon Valley AB 447 (Maienschein) Page 7 of ? LINC Housing Northern Circle Indian Housing Authority Path Ventures Project Sentinel Sacramento Homeless Organizing Committee San Diego County Apartment Association Skid Row Housing Trust Oppose American Insurance Association Association of California Insurance Companies -- END --