The term "insurance law" encompasses a very broad range of services that law firms provide to clients in connection with insurance coverage disputes and other insurance-related matters. Clients include individual and corporate policyholders, insurance companies, reinsurers, and brokers. Due to potential conflicts, firms with substantial insurance law practices often represent either the insurer side or the policyholder side, but not both.
Insurance policies sold to corporate policyholders protect against a wide variety of risks, including liability or loss resulting from: (i) allegedly defective products (including medical devices and pharmaceuticals), (ii) data breaches and other internet-related claims, (iii) mass torts, including exposure to harmful substances such as asbestos and silica, (iv) property damage and business interruption, (v) man-made and natural disasters, (vi) securities and business torts (often involving shareholder class actions and/or SEC investigations and enforcement actions), (vii) environmental damage, (viii) employment claims (including worker’s compensation and discrimination claims), (ix) professional liability, and (x) and crime/fraud. The major types of insurance policies purchased by corporate policyholders include general liability policies, directors and officers liability policies, fiduciary liability policies, employment practices liability policies, errors and omissions and professional liability policies, first-party property and business interruption policies, marine insurance, crime/fraud policies, workers compensation policies, environmental impairment policies, and a wide variety of specialty products (e.g., media policies, satellite launch and in-orbit insurance, product recall policies, cargo policies, product tampering policies, event cancellation coverage). Major markets for buying and selling insurance include the United States, London, Bermuda, and Europe.
Insurance programs sold to and purchased by corporate policyholders typically include several layers of insurance, with a primary insurance policy that often sits above a deductible (or self-insured retention) and with multiple layers of excess policies sitting above the primary policy. Large claims can often implicate coverage under dozens of policies sometimes spanning years or decades. In contrast, individual policyholders typically purchase life insurance, health insurance, disability and/or long-term care insurance, homeowners or renters insurance, automobile insurance, and sometimes specialty insurance, such as coverage for jewelry or works of art, travel insurance, etc.
Law firms provide clients with insurance coverage counseling and advice on a wide array of issues, ranging from assessments of coverage for particular losses and representation in coverage disputes to providing help with assembling a coverage portfolio and formulating favorable policy language when insurance is being purchased or renewed. Firms also advise clients regarding the insurance assets being transferred in corporate transactions, with tax planning in connection with insurance payments or recoveries, and with alternative underwriting programs, such as captive insurance entities.
Policyholders and insurers dealing with significant losses often call on outside coverage counsel for advice and assistance in pursuing coverage or responding to claims for coverage, as the case may be. In the event of a dispute over coverage for a particular claim, the insurer and insured may resort to litigation, arbitration, or mediation to resolve their differences. If the parties proceed to litigation, the case may proceed in either federal or state court, even though the substantive insurance law issues are decided as a matter of state law. Some insurance policies require the parties to resolve coverage disputes through either domestic or international arbitration. In recent years, an increasing number of large disputes have been resolved through international arbitration, often in London or Bermuda. In many cases, experienced coverage counsel can facilitate resolution of a coverage dispute without having to resort to the courts (or to arbitration). In other cases, settlement negotiations proceed on a parallel track while the litigation (or arbitration) moves forward.
Benedict Lenhart, Elliott Schulder, and Deanna Wilcox