Our risk management and insurance dispute resolution lawyers appreciate that insurance is not merely an unavoidable expense item but an important asset that should be incorporated into the strategic planning for any business. We leverage our years of advocating on behalf of our clients to assist them in assessing their risk profiles, evaluating their risk management needs, helping them to develop risk management plans based on ongoing legal and business developments, and assisting them in resolving disputes in an effective and efficient manner.
The insurance issues faced by businesses rarely, if ever, arise in isolation. Insurance matters have a way of surfacing in the context of other business events such as: business and shareholder litigation; bodily or personal injury, business tort or property damage claims; damage or interruption to the routine operations of a business; recovery from a disaster; labor and employment disputes; the transfer of assets, sale, or change in control of a business; real estate transfers and environmental compliance; or hacker attacks resulting in a breach of private data. The members of our insurance practice represent and counsel a wide range of business and individual clients who use insurance as a tool to manage the risks that are an inescapable part of doing business in a complex world. Given our years of experience, we appreciate that these risks are constantly evolving. We assist our clients in assessing their risk profiles, evaluating their appetite for risk and risk mitigation needs, planning based on ongoing legal and business developments, and working to resolve disputes in a prudent and efficient manner.
We advocate, under a wide variety of circumstances, on behalf of both insureds and insurers throughout the United States. The members of our insurance practice have represented clients in insurance coverage litigation in both federal and state courts and at the trial and appellate levels, as well as before arbitration and mediation panels. We have achieved successful outcomes for clients in disputed insurance matters involving a wide array of issues, including:
- Insurance fraud;
- Bad faith and the negligent failure to settle;
- The duties to defend and/or indemnify;
- Business torts and unfair business practices;
- Alleged director and officer misconduct or breach of duty;
- Professional liability and financial institution errors and omissions;
- Direct loss and interruptions in business resulting from natural disasters and other casualty events;
- The scope and limitations of personal injury insuring agreements;
- Cyber-liabilities and first-party losses including privacy breaches, breach notice, business interruption, extortion, and the loss or corruption of data;
- Alleged breaches of duty in the administration of an ESOP or employee benefit plan;
- Excess carrier rights and obligations and the consequences of inconsistencies in an excess insurance program;
- The scope of pollution, conduct, insured capacity, and other common policy exclusions;
- Construction defect claims;
- The valuation of tangible, intangible, and unique assets;
- Employee dishonesty or theft losses;
- Premises liability, including failure to provide adequate security claims;
- Legacy asbestos bodily injury and environmental property damage claims; and
- Alleged violations of covenants in connection with corporate sales and acquisitions.
Insurance coverage disputes are not limited to disagreements about a coverage determination. Particularly when there has been a reservation of rights, ongoing disputes concerning the defense or settlement of a claim frequently arise. Some of the issues that we have addressed concerning the handling of claims include:
- The selection of counsel and control of the defense of underlying claims;
- Claims that an insured has failed to cooperate in the defense of an underlying claim;
- The suitable or appropriate rate for the reimbursement of defense counsel;
- The timing of defense cost reimbursements and audits of defense costs;
- The allocation of loss between covered and uncovered matters or between insurers; and
- The obligations of insurers to participate in settlement discussions and to fund settlements.
Because an ounce of prevention is worth a pound of cure, we leverage the lessons we have learned while advocating on behalf of clients in disputed matters. To this end, we regularly assist clients in structuring their insurance programs and counsel them on insurance and risk mitigation strategies. We work with clients to structure and negotiate the terms of their insurance programs with the aim of ensuring that the form and content of those programs are consistent with expectations. Some of the counseling and advisory services that we provide to clients include:
- Reviewing current insurance coverage, identifying potential gaps in coverage, and assessing the adequacy of existing terms along with the continuity of excess coverage;
- Working with management to identify current and emerging risks of third-party liability and first-party loss in order to assess the adequacy of current insurance to respond to those risks;
- Comparing and assessing the benefits and drawbacks of competing insurance policy forms;
- Reviewing contractual indemnification and insurance requirements with business partners and others in the chain of distribution in order to coordinate such relationships andobligations with clients’ insurance programs;
- Coordinating insurance with other critical company documents, such as bylaws, loan covenants, and the indemnification provisions of contracts and licenses;
- Counseling directors and officers concerning the adequacy of management liability insurance and company indemnification provisions – including the indemnification and insurance protections associated with outside directorships — to limit their personal exposure;
- Counseling and providing advice concerning the selection and negotiation of terms for insurance programs including D&O, fiduciary, professional liability/errors & omissions, employment practices, crime and fidelity bonds, first party property and business interruption, recall liability, representations & warranties, kidnap & ransom, environmental cost cap and impairment, media, cyber-liability, and specialized manuscript insurance policies;
- Identifying insurance assets that are potentially responsive to incoming claims or events that may result in liability or loss; and
- Assisting in developing protocols to comply with insurance notice, cooperation, and similar conditions.
Because significant corporate transactions frequently have insurance implications, we also counsel clients concerning the insurance implications of insolvency, mergers and acquisitions, corporate divestitures and other transactions and changes in control.