Insurance – Policy Negotiation and Claims Litigation Experience

Negotiation of Policy Terms

Negotiation of environmental insurance policies to facilitate transactions. Too many deals fall apart because no one wants to accept the risk of potential environmental costs at sites with known or suspect contamination. Insurance carriers, however, are in the business of trading risk for premium, and environmental liability insurance is a valuable tool for closing deals with environmental complications.

Unlike typical insurance policies, environmental liability policies are negotiable. Quarles & Brady attorneys have negotiated environmental insurance policies benefiting buyers, sellers, lenders, borrowers, landlords and tenants. We maximize the value of these policies for insureds – expanding coverage and limiting exclusions – leaving a viable third party to accept the environmental risks and creating the conditions for a deal to close.

Negotiation of environmental insurance policies to protect ongoing operations. In addition to insuring against loss stemming from historic pollution, environmental liability insurance can protect insureds from risks associated with future releases of pollutants. Entities looking to protect themselves from environmental losses stemming from their current and future operations have added “new conditions” environmental liability insurance to their portfolios. We negotiate the terms of these policies to maximize our clients’ protection from pollutant releases of all kinds.

Claims against historic CGL and claims-made environmental insurance policies. Our knowledge of claims informs our negotiation of policy terms and vice versa. We frequently represent insureds, as described further below, in environmental coverage claims and litigation.

High-Profile Transactions

As a condition precedent to closing the sale, negotiated the terms of pollution legal liability insurance protecting the seller of industrial property from claims arising from known soil, groundwater, and surface water (a river) contamination. The policy covers remediation triggered by the discovery of off-site contamination, third party cleanup claims, and third party bodily injury and property damage claims.

  • Negotiated environmental liability insurance for two sites, each of which has been in active metals manufacturing for over 75 years. The policy covers all governmental remediation claims and all third party bodily injury and property damage claims. Despite known and potential releases and, for one site, inclusion within a Superfund site, the policy does not have a known conditions exclusion.
  • Negotiated numerous new conditions environmental liability policies for jet fuel consortiums protecting the consortiums, their members, and municipal airport authorities from environmental liabilities arising from the discovery of contamination and third party cleanup, bodily injury, and property damage claims.
  • Negotiated environmental liability policy protecting the seller and the purchaser of a former manufactured gas plant site from remediation, bodily injury, and property damage claims, including all claims that fall outside of, or for whatever reason are not covered by, the indemnity provided by the utility that operated the manufactured gas plant site (commonly referred to as “excess of indemnity coverage”).
  • Negotiated environmental liability policy protecting the purchaser of multiple brownfield sites from remediation costs arising from the discovery of contaminants, as well as third party claims for remediation, bodily injury, and property damage.
  • Negotiated environmental insurance policy protecting a jet fuel consortium, its members and the municipal airport authority from new and pre-existing environmental conditions, and to serve in lieu of traditional financial assurance against environmental losses required by airport lease.
  • Negotiated three pollution liability policies under extreme time pressure in order to protect a prospective lender from environmental liability and avoid the need for corporate and person indemnities on the part of the borrower.

Claims and Litigation

Comprehensive Representation. Quarles & Brady’s Insurance Recovery team is a highly specialized group of lawyers who represent policyholders across the country in disputes against insurers. We provide analysis and advice, formulate strategies, and present cases to judges and juries with the goal of maximizing coverage and securing insurance proceeds for policyholders. Our attorneys have extensive experience representing clients across numerous industries in disputes involving a broad range of policies and claims, from long-tailed claims triggering historical property and casualty coverages, such as one finds with asbestos and environment liability, to cutting-edge issues involving the latest permutation of directors & officers liability coverage. We successfully represent clients in pre-suit disputes as well as litigation at all phases, from trial through appeal. We also analyze coverage and provide advice outside of the litigation context, including the tendering of claims, negotiating with insurers in their handling of claims, monitoring policies and coverage, and assistance with policy renewals and coverage audits. We pride ourselves on providing cost-effective, practical solutions to our clients in all manner of proceedings, including negotiation, litigation, arbitration, and mediation.

Quarles & Brady’s Insurance Recovery Team routinely handles insurance coverage disputes involving a broad range of matters, including:

  • Asbestos and other toxic tort claims
  • Environmental coverage and pollution claims
  • Product liability claims
  • Property damage and business interruption losses
  • Directors & officers liability coverage
  • Professional liability and errors & omissions
  • Construction-related claims
  • Business torts and intellectual property claims

Service is Key. The results we have achieved are no accident. We have spent years accumulating the experience and knowledge base necessary for a successful insurance recovery practice — and we have done so with a focus on what clients look for when hiring an insurance recovery lawyer. In a recent third-party survey of our service strengths, conducted by The BTI Consulting Group, our clients rated us above the national average of BTI’s industry-leading “Client Service Top 30” law firms in the category of “Commitment to Help,” which BTI reports is the single most important characteristic clients value.

High-Profile Claims and Litigation

Our experience inventory includes landmark, law-altering successes such as Plastics Engineering v. Liberty Mutual, 2009 WI 113, 315 Wis. 2d 556, 759 N.W.2d 613, in which the Wisconsin Supreme Court established an “all sums” allocation method for determining insurance coverage in long-tail claims that encompass multiple policy periods; and Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108, 264 Wis. 2d 60, 665 N.W.2d 257, in which the Wisconsin Supreme Court overruled a decade of pro-insurer case law and established coverage for environmental claims. While these cases have helped establish our brand, they are only two in a long string of success stories we can cite as examples of our ability to achieve strong results for clients. In the past year alone, we prevailed on all counts in a highly complex property damage coverage case that we tried to a Florida jury; convinced a Wisconsin federal judge to award our client damages of 12% interest and attorneys fees for what the court determined was the insurer’s bad faith refusal to cover a stop-loss insurance claim; and, following a massive discovery effort and motion practice, successfully negotiated a favorable resolution of coverage issues for a potentially responsible party involved in one of the most costly environmental cleanups in United States history.