Insurance Policyholder Practice Group

Transcription

1 Insurance Policyholder Practice Group The firm s Insurance Policyholder practice group focuses on maximizing insurance recovery for corporate policyholders, professionals and other claimants. Our insurance attorneys pair their expansive knowledge of insurance law with exceptional litigation capabilities to resolve disputed insurance claims successfully on behalf of policyholders from a broad range of industries in all types of dispute resolution proceedings, ranging from pre-litigation advocacy and mediation to litigation and arbitration. In addition to resolving coverage disputes, a substantial portion of our practice involves partnering with clients to offer strategic advice on an array of coverage and risk management issues. Working as aggressive and zealous advocates for our clients, we provide business-oriented, no-nonsense representation and counseling that delivers prompt, favorable and cost-effective results. They have taken the time to understand our business and - Chambers USA they understand it well. As a reflection of our talent, our attorneys are top-ranked insurance coverage counsel in leading legal directories, including Chambers USA, U.S. News-Best Lawyers Best Law Firms, LawDragon 3000, Super Lawyers, and Law 500. Neal Gerber Eisenberg was recognized as a leading law firm in Chambers USA: America s Leading Lawyers for Business (recommended in Insurance: Coverage Litigation ), in which our clients said the firm employs extremely knowledgeable and likable people. It is an important partner in our business and we readily recommend it to others. Practice Ranked in: Our Insurance Policyholder practice group s services include: coverage ligation and alternative dispute resolution; counseling on policy procurement and renewals, including analyzing proposed and existing policy language and negotiating manuscript provisions; advising on insurance requirements in mergers, acquisitions, contracts and risk management programs and assisting with insurance due diligence; and consulting with litigation and arbitration teams in which insurance assets are needed to conclude or fund settlements. The practice is backed by the vast resources of Neal Gerber Eisenberg, a full-service business law firm, allowing us to meet nearly every corporate and litigation legal need. Core areas of focus: Complex commercial business and consumer action torts Construction insurance Cyber and privacy Directors & Officers liability Employment practice liability Environmental and toxic torts Intellectual property, computer and Internet liability Products liability Professional liability, Errors & Omissions

2 Property losses and business interruption Risk management Our representation of corporate entities and professionals of all types and broad industry experience gives Neal Gerber Eisenberg a significant advantage in mediations, arbitrations and court proceedings. Our representative industry experience includes clients operating in the banking, building products, chemicals, construction, consumer products, electric utilities, financial services, health care, manufacturing, pharmaceutical, real estate development, retail, securities, telecommunications and transportation sectors. Neal Gerber Eisenberg also provides a leading edge on insurance matters through a variety of unique resources and experience that set the firm apart as an insurance law leader. We are experienced defense trial counsel in tort and professional liability litigation and use this knowledge to understand how to conduct liability litigation in order to maximize the use of insurance to settle and cover verdicts. Our cumulative knowledge and experience means that the group can provide clients with perspective, strategy and possible outcomes without having to invest clients time and money in researching the basics for most issues of coverage law. Representative Experience: Ongoing representation of utility company against excess liability insurers in coverage dispute arising out of $177 million settlement with the state of Missouri for damages caused by the catastrophic failure of a hydroelectric dam. Secured one of the largest settlements in the world for a catastrophic property loss on behalf of utility company arising out of failure of hydroelectric dam. Representation of law firm and individual attorneys against primary and excess E&O insurers in coverage dispute arising out of $20 million claim alleging legal malpractice, conspiracy and fraud. Ongoing representation of municipality in coverage litigation arising out of $11 million judgment in underlying 42 U.S.C lawsuit. Representation of life insurer against E&O insurers in coverage litigation arising out of underlying disappearing premium class actions seeking tens of millions of dollars for alleged fraudulent conduct and deceptive sales schemes. Ongoing representation of major online retailer in coverage litigation arising out of underlying class actions alleging violations of the Song Beverly Act. Ongoing representation of coal company in litigation against third-party administrator regarding fee dispute for handling Federal Black Lung claims. Ongoing representation of managed care company against its E&O insurers in coverage disputes arising out of underlying class actions seeking damages in excess of $100 million for alleged improper administration of PPO networks. Ongoing representation of law firm and individual attorneys sued by bankruptcy trustee to secure funding from E&O insurers for settlements of claims alleging breach of fiduciary duty, dishonest acts, fraud and statutory violations. Ongoing representation of managed care companies in securing coverage under E&O and Managed Care Liability policies for class action lawsuits arising from privacy claims, civil rights violations and other statutory violations in Illinois, California, Florida and Colorado.

3 Representation of medical provider and managed care professional during Department of Justice investigation to secure coverage for individuals and entity under D&O liability policy. Representation of Bankruptcy Trustee for not-for-profit debtor to investigate potential coverage for directors and officers for fraudulent transfers. Insurance Coverage for Catastrophic Losses When a catastrophe causes property damage, bodily injury, environmental injury or economic loss, insurance can be a company s greatest asset. Neal Gerber Eisenberg s Insurance Policyholder practice group obtains maximum recovery for clients through proactively managing submission of confidential information, proof of damages, coverage issues and liability evaluations. Our team also works effectively with risk management, legal, outside defense counsel, insurance claims adjusters and environmental and construction consultants. Under emergency circumstances, no better strategy exists than to anticipate the potential disputes with insurers and design procedures accordingly to maximize recovery of insurance. We have experience in working side-by-side with in-house corporate professionals and brokers from the initial moment of notice under policies for property insurance, business interruption, commercial general liability, builder s risk, wrap-up, professional liability and environmental cleanup. Our attorneys have achieved significant recovery for clients harmed by disasters of all types, including fires, floods, collapse, explosions and hurricanes. We have collected almost $1 billion for clients with property and economic loss claims. We have negotiated and where necessary litigated disputes with insurers over causation, purported exclusions, number of occurrences and allocation, among many other complex issues. The firm also has extensive experience in appraisal proceedings to determine the value or amount of loss. Representative matters our attorneys have managed involving property, construction and environmental losses and bodily injury claims are set forth below. Catastrophic loss of a reservoir owned by an electric utility, necessitating recovering costs for rebuilding the structure at a cost in excess of $450 million. Flood damage leading to total loss of property, natural resource damage, debris cleanup, environmental restoration and sediment removal claim. Representation of a design-build company of waste water treatment plants for coverage under professional liability and builder s risk policies for damage to property, delay and cost overruns arising out of heavy rainfall and saturation of foundation materials. Representation of a national casino owner in a claim for enhanced replacement cost coverage after the catastrophic collapse of a historic building under renovation. Representation of an owner named as a PRP in CERCLA clean-up action to recover defense costs and indemnity payments for natural resource damages from historic liability insurance policies. Representation of a manufacturing facility alleged to have contaminated an entire residential neighborhood s drinking water with TCE to recover settlements made to plaintiff class from multiple primary and excess insurers over multiple policy periods. Representation of various insureds for their property and business interruption losses associated with

4 and resulting from the tragic events of Sept. 11, Representation of various insureds relating to their respective losses resulting from plant explosions, burst water and refrigeration piping, and other perils covered under first-party property policies. Representation of an owner after the collapse of an adjoining property owner s property for coverage under CGL policy and additional insured endorsements. Representation of an owner of a liquid propane processing facility in collection of delay and overrun costs against the engineer and construction manager s project policy. Representation of an owner during a construction project in which more than a dozen workers fell 15 stories in an elevator shaft resulting in settlements exceeding $60 million contributed by four layers of excess insurance. Representation of a propane gas company in connection with an explosion that demolished a square block of homes and killed or severely injured a dozen workers and homeowners. Representation of a propane gas company in connection with an explosion that demolished a restaurant and motel and killed or severely injured more than 10 people. Professional Liability, Errors & Omissions Insurance recovery attorneys at Neal Gerber Eisenberg have wide-ranging experience representing policyholders in a variety of professional liability and E&O claims. Our experience assisting policyholders with resolving E&O insurance claims spans a wide spectrum of activity, from assisting with compliance with notice and cooperation provisions of the insurance policies to assisting with obtaining prompt payment of defense bills to advising on utilizing insurance to settle claims. Some of our counseling and litigation engagements in this area include: Representation of emergency room medical group and its individual doctors in defeating an insurer s attempt to rescind millions of dollars in medical malpractice insurance. Representation of nationwide managed health care organization as policyholder in litigation of claims under E&O insurance policies regarding coverage for numerous disputes involving medical reimbursements. Representation of life insurer as policyholder against E&O insurers in coverage litigation arising out of underlying disappearing premium class actions seeking tens of millions of dollars for alleged fraudulent conduct and deceptive sales schemes. Representation of law firm and individual attorneys against primary and excess E&O insurers in coverage litigation arising out of $20 million claim alleging legal malpractice, conspiracy and fraud. Ongoing representation of law firms and attorneys sued by bankruptcy trustee to secure funding from E&O insurers for settlements of claims alleging breach of fiduciary duty, dishonest acts, fraud and statutory violations. Representation of law firm against E&O insurers in coverage dispute arising out of legal malpractice claims brought by municipality. Representation of structural engineer in coverage dispute with E&O insurer arising out of alleged design

5 defects in construction of art museum. Representation of homeowners property insurer in coverage dispute with its E&O insurer arising out of underlying class actions alleging improper underwriting and marketing practices. Representation of construction manager against E&O insurers in coverage dispute arising out of underlying claims seeking damages for delays and cost overruns in construction of natural gas liquid extraction and fractionation plant. Insurance Recovery for Environmental Losses Our Insurance Policyholder practice group attorneys have substantial experience maximizing insurance recoveries under liability and property policies for various claims for environmental liabilities. The claims often involve significant exposures regarding a policyholder s core business. Our lawyers have experience both negotiating resolution of these claims without litigation and litigating these claims through trial and appeal. We have successfully prosecuted claims for coverage against virtually every domestic insurer and many foreign insurers, including Lloyd s of London syndicates and London Market companies. Our collective experience obtaining coverage for claims under CERCLA, RCRA and a wide variety of state statutes has addressed millions of dollars of coverage. Representation in these disputes have included addressing successor liability, allocation, number of occurrences, self-insured retentions, trigger of coverage, choice-of-law, exhaustion, bad faith, pollution exclusions, trespass, completed operations, waiver and estoppel, insolvency and notice issues. We also have extensive experience on the risk management and procurement side in reviewing and negotiating for pollution-related insurance property, remediation and liability policies during merger and acquisitions, insolvencies, renewals and construction. Some of our litigation engagements include: Representation of an industrial manufacturer sued in class action by residents alleging TCE contamination in drinking water. Even though multiple declaratory judgments were filed in Illinois and Iowa, we were able to successfully negotiate with six different insurers to fund settlement with the class and avoid protracted litigation. Representation of an electric utility for cleanup of MGP sites. We are engaged in negotiating settlements with historic CGL insurers, including Lloyd s and an insolvent domestic insurer. Representation of an electric utility named as a PRP in CERCLA site involving cleanup costs, natural resource damages and remediation. We are engaged in negotiating funding for settlement with the U.S. Department of Justice with the utility s historic liability insurers. Representation of a utility charged with water contamination arising out of fly ash disposal on both owned and non-owned property. Successfully negotiated settlements to fund defense and indemnity payments by its historic liability insurers without needing declaratory relief. Representation of an Environmental Impairment Insurer named as a defendant in a declaratory judgment seeking to join historic liability insurers. Successfully obtained trial court ruling that extrinsic evidence was necessary to determine intent of other insurance clauses.

6 Representation of a manufacturer of solvent solutions arising out of acquired companies liabilities for coverage under the predecessor s policies. Successfully negotiated settlement with insurer and the predecessor company. Representation of an electric utility whose reservoir catastrophically failed and destroyed a state park and its facilities. Successfully recovered more than $100 million to fund remediation and rebuilding of park and payment of award for natural resource damages. Some of our risk management engagements include: Advised seller of contaminated property on appropriate coverage and language for Environmental Impairment policy to cover remediation costs over a 10-year period following sale. Advised buyer of contaminated property on appropriate coverage language for Pollution Legal Liability to cover liability arising out of any future enforcement actions following sale. Advised owner on large construction project on appropriate coverage and language for Contractors Pollution Legal Liability. Assisted and performed due diligence during corporate transactions for private equity firm to review and analyze long-tail insurance coverage available for indemnity obligation of buyer. Advised directors and officers of acquired company on appropriate coverage and language for Cost Containment Remediation policy and Loss Mitigation for asbestos liabilities. Advised manufacturer facing class action liability for contaminating residential water source on possibility and appropriateness of Remediation policy to fund class action settlement. Directors & Officers Liability Insurance Counseling Our insurance policyholder practice works with boards of directors, board committees, general counsel, risk managers and individual directors and officers on all aspects of D&O liability and ERISA fiduciary liability insurance policies, including: Purchasing D&O and ERISA fiduciary liability insurance. Advising on the adequacy of corporate bylaws, charters and indemnification agreements with respect to director and officer liability. Assisting boards and board committees in evaluating the quality of the company s D&O and ERISA coverage. Counseling individual directors and officers on minimizing the risk of personal liability. Assisting boards and companies in overseeing the litigation of securities fraud, ERISA and derivative claims. Assisting companies, directors and officers in obtaining D&O and ERISA insurance recoveries. D&O insurance policies protect directors and officers primarily against securities fraud lawsuits. We know firsthand the dynamics of these lawsuits, how to gauge their danger and how to settle them. Our experience in this regard makes us highly attuned to how particular D&O insurance policy language can impact the resolution

7 They achieved an excellent result by focusing on the ultimate desired resolution to a - U.S. News Best Lawyers Best Law Firms complicated set of problems. of securities fraud litigation. We never lose sight of why these policies were purchased and what they are intended to accomplish. Our attorneys have years of experience in litigating insurance coverage disputes, including numerous disputes under D&O and fiduciary insurance policies. We take policy language seriously because we understand how important policy language can be in successfully resolving insurance litigation and how a few words can make millions of dollars worth of difference. Insurance Program Audits Neal Gerber Eisenberg s Insurance Policyholder practice group assists various public and private entities as well as directors, professionals and non-profit associations review, negotiate, build and maintain comprehensive insurance coverage programs that protect the entities balance sheets as well individuals personal assets from allegations of wrongdoing arising out of their business operations. Ensuring adequate protection is critical in today s unstable economy as companies see increased claims and litigation, regardless of whether the allegations have merit. We regularly audit the insurance programs of entities both large and small. Moreover, the programs we audit may be as simple as a single line of insurance, or as complex as many integrated lines and layers of coverage. Regardless of the size of the client or the complexity of the insurance program, the goal remains the same to ensure that the client s insurance program meets the client s needs in light of the potential sources of liability the client may encounter. As a result of our policy audits, we often are able to assist our clients in negotiating significant, important policy enhancements. In addition, because we know what to look for in a policy and what is available in the insurance market, many of the policy enhancements and protections we recommend are available at no additional premium charge. Our legal services are different from and are a complement to the services that insurance brokers provide. We focus on insurance procurement and negotiation and claim disputes. We regularly represent our clients on the claims side, so we are very familiar with the loopholes that insurance companies use to try and avoid their coverage obligations and are able to put this knowledge to good use in correcting potentially ambiguous policy language. Having legal counsel who focus on these matters with the ability to conduct an insurance program audit offers several benefits. First, and perhaps most importantly, clients can have a candid discussion with their counsel about the scope of coverage, risk management concerns, potential claims or broker liability under the protection of the attorney-client privilege. Communications with insurance brokers are generally not privileged. Second, as insurance coverage counsel, we keep abreast of the latest developments in insurance coverage law. Our insurance policyholder attorneys know what type of policy language is likely to cause coverage disputes between carriers and insureds and can suggest favorable policy language to help avoid such disputes. Members of our practice group are nationally recognized in insurance coverage disputes and routinely speak on issues at the cutting edge of developments in the insurance market and in insurance coverage law. Neal, Gerber & Eisenberg LLP Two North LaSalle Street Chicago, IL