For years, your company paid insurance premiums. You rarely, if ever, submitted an insurance claim. But then an economic disaster hits.
Perhaps, due to the COVID-19 pandemic, the government prevented your business from opening its doors to your customers, or your company lost its supply chain.
Or perhaps your production plant was destroyed by a fire or flood.
When you submit a claim to your insurance company, they deny coverage. To justify their decision, they narrowly interpret the scope of coverage and broadly interpret exclusions.
The policy language involves complex contract-interpretation issues. Under one interpretation, your company would be made whole. Under another, your company could end up on the brink of financial ruin.
You are going to have to fight the insurance company. And you will need lawyers who can persuade a judge to interpret the policy your way.
We are experts in presenting powerful arguments about the meaning of words, including language from insurance policies, such as the phrases “sudden and accidental” or “direct physical loss.”
And because we always work on a contingency fee basis, you will not have to invest additional money in a lawsuit to secure coverage.
Representation and Warranty Insurance (RWI) litigation
Your private equity team completed a major merger or acquisition. You invested money, effort, and time in closing the deal and now you will need to continue to invest additional resources to integrate the new business.
After the deal closes, you discover that the seller breached a representation and warranty that exposes your company to millions of dollars of losses for damages or indemnification.
Perhaps the seller’s financial statements were inaccurate, there was an undisclosed tax liability, or contractual obligations were not disclosed.
At first, you thought you would be covered by an insurance policy. But when you tender the claim, the insurance company denies your claim.
Pursuing a costly lawsuit or arbitration against the insurance company does not sound appealing. Do you just settle the case for pennies on the dollar?
Hire special counsel who can achieve extraordinary results on a contingency fee basis.
Dovel & Luner’s attorneys have a higher level of skill and experience than any firm in the country. And we have a track record of success.
In the past decade, representation and warranty insurance (RWI) has changed the landscape of merger and acquisition deals. RWI is a deal facilitator that offers benefits to both buyers and sellers by providing longer indemnity periods, avoiding post-closing adversarial proceedings between the parties, allowing buyers to differentiate themselves, and reducing or eliminating seller escrows.
- Traditionally, about 10 to 15 percent of sale proceeds were held in escrow for one to two years to cover breaches of representations and warranties.
- RWI allows private equity sellers to distribute sale proceeds back to investors without holding portions of them in escrow for months or even years.
- RWI also increases buyer security in distressed seller contexts, which are becoming more common in the COVID-19 pandemic economic environment.
RWI policies can be significant assets for companies—often with coverage limits up to 10% of the enterprise value. In return for this substantial coverage, buyers must pay hefty premiums that generally cost up to 4% of policy limits. As an example, for a $500 million deal, buyers could expect to see $50 million in insurance coverage with premiums of $2 million per year.
Premium payments of this magnitude can only be justified if the insurance company performs its end of the bargain. But insurance companies often try to evade coverage by manipulating the language of the policy agreements.
In today’s challenging times, it is more important than ever to hold insurance companies accountable.
Insurers have the right to protect themselves from risk by adding these exclusions, but they cannot manipulate existing policies to avoid coverage.
Dovel & Luner’s attorneys know how to hold insurers to their word.