We analyze commercial insurance, indemnity, and casualty risk-of-loss questions in a variety of contexts for clients whose operations and potential risks span the globe. Our practice includes advice as to first-party disputes on issues such as the loss-adjustment process, the proof obligations imposed by the policy, and loss quantification. In the case of liability coverage, we advise clients on issues such as the obligation to give notice, the insurer’s duty to defend, selection of defense counsel, payment of defense costs, reservations of rights, and allocation of loss and expense between covered and non-covered elements.
We also assist clients in addressing legal issues posed by the insurance procurement process, including those pertaining to insurance applications, broker relationships, covenants to procure insurance, evaluation of policy language, and policy renewal. We have assisted clients in the drafting of insurance policy wording, including policy documentation used in self-insurance programs or by captive insurers.
Representative Counseling Matters:
- Counseled an off-shore energy industry service provider on coverage for liability arising from a time charter under marine GL, excess, hull and P&L policies.
- Provided counseling on the assumption of a defense, subject to a reservation of rights, under an indemnity agreement.
- Counseled large religious institutions on claims under liability policies.
- Counseled a mid-stream company on the recovery of claims under environmental liability insurance.
- Identified historical policies for client faced with long-tail environmental claims.
- Advised a global chemical manufacturer in negotiations with its insurer over complex claims under a marine cargo policy.
- Helped policyholders suffering hurricane-related business interruption and contingent business interruption claims quantify their losses for submission under first-party policies.
- Counseled healthcare providers regarding first-party property claims arising out of Hurricanes Harvey, Ike, Katrina and Rita and Tropical Storm Allison.
- Advised a law firm on renewal decisions and selection of renewal lawyers’ professional liability primary and excess insurance.
- Worked with mid-stream company in negotiating the detailed wording of environmental liability and first-party insurance.
- Advised governmental entities on the procurement of liability insurance and related scope of liability in view of Texas governmental immunity doctrines.
- Advised a manufacturer concerning liability coverage for an explosion and fire under general and employer’s liability policies containing large deductible and self-insured components.
- Advised an oil field service provider on indemnity and additional insured issues arising from an explosion and fire.
CONTESTED COVERAGE DISPUTES
When the presentation of a well-supported claim does not result in payment, we stand ready to litigate or arbitrate, as required, or to handle an insurance appraisal proceeding on the quantum of loss.
- Represented an energy company in state court litigation involving a claim under a D&O policy for the settlement of and defense expense incurred in a securities suit. An adverse ruling on summary judgment in the trial court was reversed by the court of appeals, which ruled in the policyholder’s favor on the policy interpretation issue posed.
- Represented a product manufacturer in federal court litigation involving employer’s liability coverage. The federal district court ruled on cross motions for summary judgment, the policyholder appealed to the Fifth Circuit Court of Appeals, and the insurer then funded the entirety of a settlement of the underlying case after preparation of the policyholder’s brief.
- Represented an energy company is a CPR arbitration proceeding after a denial of coverage for liability arising from an auto accident involving serious injuries. The insurer disputed the status of the truck operator as an insured. After a week of testimony, the arbitrator returned an award in favor of policyholder.
- Represented an E&P company in a suit under a general liability to recover first-party wreck removal expense incurred in connection with offshore platforms and facilities destroyed by Hurricanes Rita and Katrina. The suit was settled on favorable terms after production of the brokers’ files.
- Represented a Texas Medical Center institution in coverage litigation and a related appraisal proceeding to recover for bio-technology and other assets lost as a flooding from Tropical Storm Allison. A federal district court granted summary judgment in the policyholder’s favor on the coverage issue posed and referred the loss quantification issues to an appraisal proceeding. The appraisal involved extended testimony by medical and other experts and ended in an award for the full amount of the claimed bio-technology loss.
- Represented an energy company in state court litigation to recover for loss to a power generation facility caused by a turbine failure. The case was settled on favorable terms after the trial court ruled in the policyholder’s favor on complex choice of law issues.
DIRECTORS & OFFICERS INSURANCE
With the evolution of D&O policy forms following the corporate governance scandals in 2001, these non-standardized policies are now among the most nuanced offered in the commercial insurance market. There are significant differences in the scope of D&O coverage offered by various insurers, as well as among D&O policies issued by a given insurer, as the result of coverage enhancements available by endorsement.
Our D&O practice includes advising during the procurement process, providing assistance on notice of claims and circumstances, consulting on the recovery of defense expense, addressing coverage for sums paid in settlements, including allocation of payment, and litigating coverage where necessary.
Representative D&O Matters:
- Advised three Fortune 500 companies, as well as E&P, private equity and other entities and individuals, on D&O procurement issues, including providing comparative analysis of the pros and cons of different D&O policy forms and analysis of excess D&O layers of insurance.
- Represented a major Texas health-care provider on defense expense and settlement recovery related to antitrust action covered under not-for-profit D&O policy.
- Assisted a Fortune 100 company in recovering under directors & officers liability insurance for a settlement of derivative litigation pending in Delaware.
- Represented a publicly traded international energy company in a coverage dispute with its primary and excess insurers over D&O coverage for securities litigation.
- Assisted software technology company with annual review of D&O program.
FIRST PARTY INSURANCE CLAIMS
First-party insurance protects against property damage, business interruption, contingent business interruption, product recall, employee dishonesty, fidelity and builder’s risk events. Marine first-party policies may also cover well-control events, offshore platform destruction, and removal of wreckage. We have in-depth experience in resolving claims under first-party insurance policies — both in and out of the courtroom.
Our engagements include the identification, development, presentation, and negotiation of claims. We work with loss-quantification experts in designing systems to capture and categorize covered loss and expense, and advise on the content of claim documentation and subrogation issues. When disputed claims arise, we litigate and arbitrate claims on behalf of our policyholder clients.
Representative First Party Matters:
- Substantial recovery for two large Texas Medical Center institutions for first-party property damage, including biotechnology assets, arising from Tropical Storm Allison.
- Achieved settlements on behalf of E&P companies for offshore property damage losses arising out of Hurricanes Rita, Katrina and Ike.
- Advised a leading international news organization in a business-interruption claim arising from the 9/11 World Trade Center attacks.
- Assisted health care provider in recovering for substantial windstorm damage caused by Hurricane Ike to hospital under builder’s risk coverage.
- Provided expert witness analysis for an offshore driller seeking to recover under an energy package policy for named windstorm losses in litigation pending in London.
- Advised an offshore driller in recovering under an energy package policy for loss of hire coverage due to damage to a jack-up rig.
LIABILITY INSURANCE MATTERS
We represent policyholders confronting coverage issues under auto, CGL, D&O, employment practices, environmental, fiduciary, professional liability, energy and umbrella and excess policies.
We have experience in handling coverage issues in underlying litigation involving toxic torts such as asbestos exposure, environmental cleanup, products liability, securities class-action litigation, breach-of-fiduciary-duty claims, legal and medical malpractice actions, and construction litigation, among others.
We seek not only to devise strategies for obtaining defense and indemnification at the outset of a liability claim, but we also analyze ultimate potential exposures to design comprehensive strategies for maximizing our clients’ insurance recovery.
Representative Liability Insurance Matters:
- Achieved a recovery in arbitration for auto liability of a nuclear plant.
- Represented an international company that supplies services to petrochemical and manufacturing plants against its excess umbrella-liability carrier over a seven-figure dollar pollution clean-up claim.
- Advised an international engineering and construction firm regarding a breadth of insurance issues arising from work performed in Iraq and Afghanistan.
- Represented a regional manufacturing company in a coverage dispute with its employers’ liability insurer for coverage of a catastrophic work-place injury.
- Analyzed coverage for law firms under lawyers’ professional-liability policies.
- Advised a Texas-based petroleum refinery regarding liability coverage arising from a refinery explosion.
- Assisted religious institutions in recovering under liability policies for claims of abuse.
- Provided in-court expert testimony on behalf of a law firm seeking coverage under a lawyers professional liability policy.
- Advised an offshore marine service provider regarding and oil company’s demands for additional insured coverage under a master service agreement.
Prior results do not guarantee a similar outcome.