Environmental Insurance Recovery

We assist clients in negotiating and structuring long-term insurance solutions, becoming involved at the outset of a policy’s development in order to help guide critical decisions regarding the ultimate content of coverage. Our early involvement in coverage procurement often proves invaluable in reaching resolution of coverage disputes that may arise later. Working in conjunction with brokers, consultants, and in-house risk managers, we help clients navigate the intricate matrix of coverage and economic matters that arise in complex insurance transactions. We often advise on form and manuscripted policies, tailored endorsements, appropriate coverage limits, premium financing arrangements, tax considerations, securities laws, use of captive insurers, and other issues that need to be addressed to ensure maximum protection at a reasonable premium.

Our involvement at the procurement stage has proven critical to the successful sales and purchases of especially challenging properties, such as brownfields redevelopments, properties subject to existing government investigations and cleanup orders, and facilities with long-term operations that may have resulted in environmental damage. We also assist clients in analyzing and structuring mergers, asset sales, acquisitions, and other corporate restructuring efforts in order to ensure that insurance considerations are properly assessed and the potential for future recovery preserved.

Morgan Lewis attorneys are also nationally and internationally known for their litigation capabilities. Our insurance recovery lawyers have the experience and capabilities to adjudicate disputed insurance claims through trial and appeal. On behalf of our clients, we have won access to billions of dollars of insurance under historic general liability insurance programs and more current specialty environmental policies in cases stemming from state and federal regulatory proceedings, including Superfund and private litigation. Our experience has involved such products as pesticides, petroleum, volatile organic compounds, polychlorinated biphenyl, lead, asbestos, silica, and the gasoline additive MtBE, to name a few.

Our attorneys are especially skilled at creative approaches to insurance recovery through the application of historical environmental statutes and common law doctrines, as well as liabilities sought to be imposed under more recent codifications such as the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and state and federal Superfund statutes. Most environmental enforcement proceedings (including private party and governmental actions) derived from historical operations have the potential for insurance recovery. Regardless of how the proceedings are characterized, the forum involved, or the statutory or regulatory basis asserted for the proceedings, our attorneys are able to find a means of pursuing insurance recovery for these proceedings.

Our attorneys also are skilled in minimizing or deferring taxes from insurance recoveries. We advise clients on the insurance implications of bankruptcy and of using “private” asset protection and tax-efficient vehicles. Our familiarity with securities laws plays an important role in our representations in directors and officers and fiduciary liability coverage disputes that may be implicated in environmental matters.

We are pioneers in developing innovative fee arrangements—incorporating result-oriented or capped fees and contingency components, for example—in the insurance recovery context.