Bracewell represents insureds, not insurance companies. We advise clients around the world seeking coverage under almost every kind of commercial insurance policy, assisting them in getting the most out of their coverage by negotiating and litigating as needed to achieve the most advantageous results. Our team has a proven track record of doing this against major insurers across the globe. We are strong advocates for our clients and always mindful of any commercial concerns that may influence how we approach a given matter.
With a deep understanding of the insurance business and the needs of our clients, Bracewell’s team is recognized as a go‐to coverage firm by leading international insurance brokers and consultants, who frequently refer their clients to us when coverage issues arise. Our lawyers have helped clients recover by obtaining policy proceeds from major disasters such as:
- the 9/11 terrorists attacks
- accounting scandals
- virtually every hurricane and named storm in the US and Caribbean over the last 20 years
- other natural disasters, such as the 2011 Tohoku earthquake and tsunami in Japan
- the Deepwater Horizon oil spill
- major wildfires in California and Texas
- business-threatening cyberattacks
The best way to ensure an insurance recovery is to get it right from the very beginning. Bracewell’s team works closely with our clients, as well as their brokers and other advisors, to evaluate potential exposures and proposed policy wording when needed. Our team provides assessments at all levels of coverage, helping to seek enhancements when possible and ensure that our clients are comfortable with their programs. When necessary, we provide guidance and counsel for clients as they deal with their brokers and insurers.
Our experience in handling coverage disputes combined with an understanding of market indicators assists our clients in identifying improvements in policy language. As situations change throughout each year, we provide clients with an understanding of what is attainable depending on the policy language, and we advise clients as to what may be achievable enhancements to their coverage. Should a dispute arise, our team is highly capable of advocating and litigating for coverage rights, contributing to our clients’ bottom line by obtaining recoveries.
Insurance policies that we routinely review include:
- property and business interruption
- product contamination and recall coverage
- reps and warranties
- D&O, E&O, fiduciary and other professional lines
- construction, including OCIPs and CCIPs
- cyber insurance
- pollution liability insurance
- other specialty coverages
We design and implement contractual risk management techniques, including insurance procurement and indemnity provisions, being mindful of additional insured issues such as those we litigated in disputes related to the Deepwater Horizon disaster and major wildfires. We take a risk-focused approach to this work, as the activities our clients undertake have varying risks, which often warrants differing contract terms. We use a similar risk-focused approach to compliance, as many companies cannot, or do not wish to, dedicate the resources to audit every single contract that contains insurance procurement provisions.
Our work on indemnity provisions helps ensure that our clients know what risks they are taking on and what risks they are transferring to others so they can be consistent with their desired risk profile. We focus on special concerns such as anti-indemnity statutes concerning construction, public projects and the extraction of natural resources such as oil and gas, along with crafting provisions that comply with permissible exceptions.
Due diligence into a target company’s insurance program is necessary for any potential merger, or acquisition of investment. Bracewell’s team knows how deals are done and understanding a company’s insurance program is crucial to assess potential risk. In most cases, this due diligence is completed by brokers, but their work is not privileged. For any acquirer or investor, it is critical to understand the amounts, terms, quality and types of insurance. Our experience helps identify whether or not the policies are adequate, and confirm they are at a level that protects any potential veil‐piercing.
We focus on legal issues such as:
- ensuring the benefits of insurance policies can be properly transferred
- designing runoff or tail coverage
- structuring coverage to match the terms of the transaction documents
- assessing potential and pending claims
- evaluating whether these claims have been properly reported
We also help clients place reps and warranties policies in transactions, along with submitting claims and pursuing recoveries when those policies are triggered.
Recent Notable Matters
Huntsman Corporation — represented Huntsman in the prosecution of claims against its former insurance broker, Marsh, alleging federal antitrust and RICO claims and state law claims of breach of contract and breach of fiduciary duty. The case was resolved through a confidential settlement in late 2017.
International security company — helping one of the pre-TSA airport security companies seek coverage for billions of dollars in liability claims from the 9/11 terrorist attacks*
Healthcare, energy, retail, hospitality, manufacturing, communications, education and professional sports organizations — helping insureds across a host of industries recover billions of dollars in insurance proceeds and governmental assistance from virtually every US and Carribean weather disaster in the past 20 years, such as Tropical Storm Allison, Hurricane Katrina, Hurricane Ike, Superstorm Sandy and Hurricane Harvey*
International energy company — represented one of the three owners of the Macondo well concerning insurance claims covering billions of dollars in liabilities arising from the 2010 Gulf of Mexico oil spill involving the Deepwater Horizon*
International utility contractors — represented utility contractors facing enormous liabilities in wildfire cases in Texas and California resulting in multiple nine-figure recoveries*
Leading shale exploration and production company — represented oil producer facing claims from the Lac-Mégantic rail disaster in Canada*
International shipping and staffing companies — represented international shippers and professional staffing companies concerning coverage for piracy and terrorist incidents in Asia and Africa*
Owners and contractors — aided several owners and contractors on catastrophic construction defect claims, resulting in multiple eight- and nine-figure recoveries*
* Work completed prior to Bracewell