On Demand
Audio
Transfer And Division of Risk in Commercial Contracts
Produced on May 21, 2019
Course Information
Course Description
In the context of commercial contracts, the parties may use a variety of devices to limit their risk of liability, either by sharing or transferring that risk to other parties involved in the contractual relationship. These complex commercial transactions often give rise to complex insurance coverage issues. This program will discuss some of the common risk transfer mechanisms used in commercial contracts and highlight the important considerations to keep in mind when pursuing insurance coverage.
The presenters will focus specifically on joint ventures: how to ensure that a joint venture has proper insurance coverage, and how to avoid falling victim to common policy exclusions for joint venture liabilities.
The course will cover indemnity clauses and insurance requirements commonly used in contractor agreements, and how to navigate potential roadblocks to coverage such as anti-indemnity statutes and exclusions for liability assumed in contracts. It will also discuss additional insured status and the limitations to consider when seeking coverage as an additional insured under the insurance of another. The program will highlight several examples from the case law as well as sample insurance policy language.
Learning Objectives:
- Consider how a joint venture can be insured, and whether defense costs are within or outside of joint venture liability limits
- Discuss the question of whether indemnity provisions in commercial contracts can be invalidated by statute
- Analyze how “Insured Contracts” are treated under commercial general liability policies
- Review the benefits of additional insured coverage
- Avoid pitfalls when seeking indemnity, insured contract coverage, and additional insured coverage
Credit Information
Faculty
Michael S. Levine
Hunton Andrews Kurth
Mike has more than 20 years of experience litigating insurance disputes and advising clients on insurance coverage matters.
Mike represents and counsels policyholders in insurance recovery and business disputes. He also assists clients regarding claim evaluation and strategy, policy placement and endorsement and broker liability issues.
In recent years, Mike has recovered hundreds of millions of dollars for clients in matters involving virtually every type of insurance policy, including property, directors and officers, errors/omissions, general liability, employment, environmental, and representations and warranties coverages. Mike has extensive experience with property damage, business interruption and extra expense claims in the US and abroad, as well as reinsurance claims. He has drafted insurance policy forms and endorsements and has litigated or arbitrated against most major US and non-US insurers.
Mike frequently serves as a faculty member and lecturer on issues concerning maximizing insurance recovery, insurer bad faith and unfair claims practices and assessing new and emerging risks, such as cyber and disruptive technologies, to help clients ensure that proper insurance is in place before a loss occurs. Mike also serves as an editor of the ABA’s insurance coverage journal, Coverage as well as manager and editor of the firm’s insurance client alerts and the firm’s Insurance Recovery Blog.
Mike is admitted to practice in Virginia, New York, Massachusetts and the District of Columbia, and before numerous federal district and appellate courts.
Relevant Experience
- Coverage counsel to private equity firm and its portfolio companies, advising on directors and officers (D&O) liability insurance, professional liability insurance, and cyber insurance matters.
- Advising major petroleum pipeline company about insurance coverage issues arising out of recent accidents and environmental incidents. Also advising the client about potential recoveries from contractors’ insurers and additional insured coverage.
- Advising luxury resort concerning property damage, business interruption and extra expense loss resulting from 1000-year flood event.
- Advising major energy infrastructure company concerning third-party liability, property damage and business income losses arising out of peotrochemical plant explosion. Recovered more than $200 million from liability insurers.Litigating claims of insurer and broker negligence concerning fire loss and under-insurance of smoked meat producer.
- Advising clients on potential D&O and cyber insurance coverage for data breach claims.
- Litigated claim to recover defense costs and amounts paid to settle class claims concerning allegedly improper bank fees and assessments.
- Represented municipality to recover $13.7 million under commercial property policy for flood-related property damage and extra expense.
- Successfully resolved insurance dispute over the duty to defend a public entity’s tort liabilities and resulting $32 million dollar jury verdict.
- Successfully resolved dispute concerning claims of tortious interference and business conspiracy against a major auto manufacturer’s liability insurer.
- Successfully resolved dispute concerning availability of insurance for mass claims alleging civil rights violations, wrongful imprisonment and unlawful prosecution.
- Lead trial counsel in lawsuit by auto dealer involving claims for property damage, loss of business income and insurer bad faith; obtained favorable jury verdict on all claims.
- National coordinating counsel for welding fume exposure claims.
- Successfully litigated a lawsuit involving a major US airline’s 9/11-related business interruption claim.
- Trial and appellate counsel in the World Trade Center Properties property coverage litigation; obtained summary judgment and a favorable decision from the US Court of Appeals for the Second Circuit regarding the number of “occurrences” arising from the 9/11 terrorist attack.
- Appraisal counsel for the World Trade Center property valuation appraisal.
- Successfully litigated coverage dispute concerning third-party “bodily injury” and “property damage” claims arising out of the 9/11 terrorist attack on the World Trade Center.
- Successfully litigated individual and class claims involving property and liability coverage for claims involving toxic mold.
- Successfully litigated numerous coverage actions concerning the availability of liability coverage for lawsuits alleging industry-wide negligence and intentional conduct in the manufacturing, marketing and sale of handguns.
Sergio F. Oehninger
Hunter Andrews Kurth
Sergio counsels multinational corporations on insurance coverage and risk management issues arising in various industries — including financial services, retail, manufacturing, energy, technology, and real estate.
His insurance coverage advice focuses on risks such as: cyber and data breach; commercial general liability; directors and officers; professional liability/errors and omissions; employment practices; property and casualty; business interruption; excess, umbrella and integrated risks; and other insured and reinsured risks under occurrence based or claims-made policies. As part of his Latin America practice, Sergio frequently advises Spanish-speaking corporate clients on cross-border exposures in connection with transactions, projects, operations, products and services.
Sergio’s experience includes matters cumulatively exceeding one billion dollars in losses or exposures before federal and state courts throughout the United States and ADR tribunals. He is admitted to practice before the Supreme Court of the United States, the US Court of Appeals for the Fifth Circuit, and US District Courts in Virginia, Colorado and Washington, DC.
Sergio frequently makes presentations and writes alerts, articles and contributions to the the firm’s Insurance Recovery Blog.
A strong advocate of public service, Sergio has served on the boards of several non-profit organizations and his pro bono work includes advice to a 501(c)(3) charity dedicated to combating gang violence and raising funds benefitting children living in poverty.
Relevant Experience
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Advised European biotechnology and pharmaceutical company on cross-border insurance issues in connection with commercialization of new drug in the U.S. market and insurance coverage for clinical claims.
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Advise global technology, internet, and communications company in connection with renewal of complex global insurance program comprising of D&O, CGL, Professional Liability and Network Security/Privacy Liability, Cyber, Aircraft, Employment Practices Liability, Fiduciary, Crime, Kidnap & Ransom, International and Business Travel, Commercial Auto, and Workers Compensation, Excess and Umbrella insurance coverages.
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Advise multilateral investment bank on borrower's compliance with property and casualty insurance requirements in loan documents.
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Advise Latin American lending client on key man insurance issues in connection with loan to Latin American Company.
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Litigated multimillion dollar claims by multinational chemical company for declaratory relief, breach of contract and bad faith regarding defense and indemnity insurance coverage for environmental class action and dozens of suits alleging bodily injury from exposure to contaminated air and groundwater.
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Arbitrated multimillion dollar dispute in New York concerning global insurance and reinsurance pool manager’s breach of contractual and fiduciary obligations and failure to properly manage portfolio of risks, set loss reserves and comply with applicable accounting principles.
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Litigated billion dollar dispute under professional liability/E&O policy arising from allegations of insurer bad faith failure to settle class action brought under Telephone Consumer Protection Act.
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Advised major electric utility regarding insurance coverage under claims-made-and-reported policies for class actions asserting environmental claims.
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Counseled manufacturers on coverage for class actions alleging property damage from products and facility emissions.
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Advised global manufacturer on “personal and advertising injury” coverage for claims by competitor alleging disparagement of goods.
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Represented policyholder in multimillion dollar dispute concerning additional insured coverage for claims arising out of major construction site accident.
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Counseled policyholder concerning rules applicable to determining defense obligations under legal professional errors and omissions insurance policy.
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Advised joint venture participant on coverage under directors and officers and professional liability policies for claims of aiding and abetting breach of fiduciary duty, defamation and other claims.
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Analyzed coverage for losses arising out of undetected theft of University funds under entity’s crime and dishonesty insurance policy and auditor’s professional liability policy.
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Arbitrated and litigated multimillion dollar claims for breach of contract and fiduciary duties relating to management of long-tail environmental, mass tort and asbestos claims under marine and casualty occurrence-based umbrella and high excess liability risks for Fortune 500 policyholders, as well as reinsurance collections and commutations.
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Counseled real estate developer on coverage for property damage and business income loss resulting from explosion during construction.
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Litigated and appraised multimillion dollar first-party insurance dispute arising from fire damage concerning property and extra expense coverage and bad faith.
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Litigated claims against Lloyds of London entities for coverage under event cancellation insurance policy for multimillion dollar business income losses associated with US government shutdown.
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Counseled multinational consumer goods manufacturer on insurance coverage for environmental class actions brought in United Kingdom, the United States and its territories.
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Advised multinational bank on insurance coverage issues in connection with corporate transaction.
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Confirmed commercial arbitration award in New York state court in multimillion dollar dispute between insurers and pool manager.
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Counseled global retailer concerning recovery of insurance proceeds for class action covered under fiduciary liability policy.
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Litigated claims of specialty chemicals manufacturer for insurance coverage for bodily injury claims arising out of asbestos exposure and for remediation of industrial sites.
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Litigated coverage dispute over multimillion dollar business interruption loss arising out of terrorist attack on World Trade Center.
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Counseled global retailer on recovery of insurance proceeds as additional insured for wrongful death and product liability claims.
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Advised contractor on coverage under cyber risk and liability policies for claims arising out of event on US Government property.
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Counseled creditor’s committee on coverage under debtor’s directors and officers insurance for claims against European-based parent and its directors and officers arising out of operations in Asia.
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Advised Spanish-based commercial vehicle technology company on cross-border insurance coverage for its US subsidiary.
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Advised reinsurer on coverage under professional liability policy for claims for claims of bad faith denial of coverage and refusal to approve settlement within policy limits.
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Litigated and arbitrated bet-the-company litigation and arbitration between government contractors involving allegations of trade secret theft, civil conspiracy, corporate raiding, tortious interference with Department of Defense contracts governed by FARs and DFARs and other business torts.
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Litigated multimillion dollar dispute involving claims of fraud in sale of real estate securities and negligence in design and construction of luxury residential property in New York City.
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Protected rights of ceding company in dispute with reinsurer regarding payment of balances and securities for reserves under applicable reinsurance treaties and facultative certificates.
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Provided counsel to interstate compact entity concerning indemnity issues under its bylaws.
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Advised policyholder on common interest doctrine.
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Counseled financial services policyholders on insurance coverage issues.
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Represented multinational corporation against mass toxic torts putative class action by citizens of Ecuador in US federal court.
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Represented global investor in international arbitration alleging Argentina’s breach of bilateral investment treaty with US and analyzed contracts and court opinions written in Spanish.
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Advised South American real estate holdings company on authentication of foreign public documents pursuant to The Hague (Apostille) Convention for use in transaction with affiliate of US-based apparel company.
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Coordinated legal advice to global private equity fund, including drafting and negotiation of commercial leases and construction agreements and insurance provisions for same.
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Drafted insurance provisions for subcontract between international professional services firm and service providers in connection with US government efforts to shelter and care for unaccompanied children crossing US border from Central America.
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Drafted provisions concerning cybersecurity and insurance for agreement between global investment and advisory firm and compliance software service provider.
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Served as local counsel to financial guaranty insurer in case against federal savings bank under FDIC receivership arising out of disallowance of proof of claim for breach of indemnity contract in connection with securitization of home equity mortgage loan asset-backed notes and mortgage pass-through certificates.
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Represented executives in high-stakes compensation disputes with software companies.
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Participated in internal investigation of allegations against county school board in employment dispute by conducting confidential interviews of Spanish-speaking employee witnesses.
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Tried and obtained favorable jury verdict in case involving claims of negligence and gross misconduct.
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Prepared or argued hundreds of dispositive, discovery, in limine or other motions in disputes before state and federal courts or arbitration tribunals; conducted dozens of fact and expert depositions, including of directors and officers of publicly and privately held companies.
Reviews
A little more basic than I would have thought.
very good
Very Informative!