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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Insurance

Date & Time
  • event Date

    Tuesday, August 1, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss how a successor company acquires and enforces insurance coverage obtained by its predecessor for claims materializing after--perhaps years after--the transfer. The panel will begin by reviewing whether insurance claims or policies can be assigned to another party as part of a business deal (or in litigation) and the impact of no-assignment or change of control clauses. Then, the program will discuss when the rights to coverage are freely transferable or transferred automatically. Finally, the presenters will explore whether an insurance company's contention that coverage for a pre-transaction occurrence cannot be assigned might support a claim of bad faith.

Faculty

Joseph M. Englert
Partner
Mcguire Woods LLP

Mr. Englert is a partner in our Atlanta office and a member of the firm’s Commercial Litigation department. His practice primarily focuses on representing policyholders in complex commercial insurance coverage disputes.

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Michael H. Ginsberg
Partner
Jones Day

Mr. Ginsberg is a trial lawyer who represents policyholders in disputes with insurance companies regarding coverage for product and environmental liabilities, toxic torts, and bad faith. His practice also involves the trial of toxic tort, environmental claims, construction, and commercial disputes. In addition Mr. Ginsberg assists clients with the evaluation and management of asbestos liabilities.

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Eugene Killian
Partner
The Kullman Firm

Admitted to the Bar in New Jersey and New York, Mr. Killian has repeatedly been named one of New Jersey's "Super Lawyers" by New Jersey Monthly magazine, as well as one of the Best Lawyers in America. He is rated "AV"® by Martindale-Hubbell. U.S. News and World Report has named Mr. Killian one of the leading lawyers in New Jersey in the area of insurance law. He is a Senior Fellow and New Jersey Co-Chair of the LITIGATION COUNSEL OF AMERICA, an exclusive organization of elite trial attorneys. In addition to insurance law matters, Mr. Killian also helps clients facing employment law and complex commercial litigation issues.

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Charles W. Browning
Partner
Plunkett Cooney

Mr. Browning is a partner and Co-leader of the firm's Insurance Coverage Practice Group, overseeing the firm’s nationwide practice as coverage counsel for several major insurance companies. He is also an experienced commercial and tort litigator, with particular skill in the handling of high exposure tort claims and construction defect disputes.

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Description

Buying and selling companies, corporate assets, or subsidiaries often involves transferring liabilities. When an insurance claim arises after the sale, litigation often ensues over whether the general liability or D&O insurance coverage obtained by the seller follows the liability and allows the buyer to recover. These issues are particularly crucial in the context of SPAC and de-SPAC transactions.

Insurers may invoke no-assignment or change of control clauses to resist having to provide a defense, but they are subject to several exceptions. Insurers may also assert that the transfer increased their original risk and therefore releases their obligations. When both seller and buyer are sued, insurers may contend they are only obligated to defend one, not both. The form of the transaction--asset sale, stock purchase, merger, Bankruptcy Code Section 363 sale--can have a significant impact on these issues.

Policyholders often contend that they are being required to litigate settled coverage issues unfairly and have begun to question whether an insurance company's contention that coverage for a pre-transaction occurrence cannot be assigned might support a claim of bad faith.

Listen as this experienced panel guides counsel through how a successor company can preserve and enforce occurrence-based liability insurance coverage procured by its predecessor for claims materializing after--perhaps years after--the closing

Outline

  1. Overview
  2. Corporate transactions where issues arise
  3. Coverage for long-tail liabilities / occurrence-based claims
  4. Coverage for management liability claims / claims made
  5. Case law developments
  6. Questions

Benefits

The panel will discuss these and other key issues:

  • What are incurred but not yet reported losses?
  • Do long-tail benefits have to be expressly conveyed?
  • When is an insured's claim to coverage assignable without insurer consent?
  • If a successor company assumes the liability of a target, does the insurance coverage procured by the predecessor follow the liability, allowing the acquirer to recover?
  • Is the creation of a subsidiary from the assets of a corporation enough like a dissolution or distribution to shareholders that a court would conclude that insurance rights in such a transaction are transferred by operation of law?
  • If a corporation purchases the stock of a subsidiary that is one of the insureds under an insurance program, does that subsidiary bring with it the rights to that insurance?