Insurance Coverage Litigation
Haynes and Boone's Insurance Coverage Litigation Practice Group represents clients in all facets of their dealings with insurance carriers. Business Insurance magazine listed Haynes and Boone as a top insurance recovery law firm in its 2008 Market Sourcebook based on the number of attorneys in the recovery practice.
Our services principally include:
Insurance Coverage Litigation
- Pursuing Coverage Claims for Litigation and Claims Resolution Costs
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Pursuing Coverage Claims for Settlements and Judgments
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Pursuing Coverage Claims for Business Risks such as Property Damage, Business Interruption and other Direct Business Losses
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Pursuing Unfair Claims Handling, Extracontractual and Bad Faith Claims Against Insurers
Insurance Coverage Counseling
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Analyzing Insurance and Risk Management Programs
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Negotiating Policy Coverages
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Auditing Existing Insurance Coverage
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Advising on Duty to Defend and Reservation of Rights Issues
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Advising Clients in Responding to Catastrophic Losses
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Advising Clients on Transferring Business Risks Through Insurance and other Contractual Methods
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Advising Insureds in Dealing With All Aspects of Insurer Insolvencies
We offer a depth of experience and a wealth of expertise in helping policyholders take on major insurance companies. We have assisted clients in obtaining substantial recoveries from their insurers. Haynes and Boone announced in January 2008 that its Insurance Coverage Practice Group has assisted its policyholder clients in recovering more than $100 million in the last 18 months. The figure represents numerous successes through both litigation and settlement efforts on behalf of various clients involved in complex insurance coverage disputes in matters closed between June 2006 and December 2007, including:
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a multi-million-dollar settlement on behalf of the owner of a 703-unit multifamily residential complex in hurricane-ravaged New Orleans;
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a multi-million dollar recovery for a bakery following the biggest explosion in England since World War II;
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a summary judgment for an insured client that required the insurer to pay millions in defense costs in several class action lawsuits filed throughout the U.S. by wireless handheld telephone users seeking damages after alleged exposure to radio frequency radiation; and
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a multi-million-dollar settlement arising out of one of Texas' largest natural disasters.
Experience and Expertise
Our Insurance Coverage practice group is highly respected for its extensive experience in handling sophisticated insurance coverage and risk management matters for businesses and individuals. In 1998, our attorneys pioneered the formation of the Insurance Law Section of the State Bar of Texas - a statewide organization of insurance coverage attorneys and industry representatives - helping them stay on the cutting edge of insurance law and industry trends for the benefit of our clients. Our policyholder practice is complimented by being part of a major business law firm. We work in all major areas of insurance recovery, including:
Making New Law for Policyholders
Our Insurance Coverage Practice Group has handled several noteworthy cases that have resulted in the making of new law in the area of insurance coverage. Selected examples of this are the following cases:
"Property Damage" Not Contingent on Ownership - Found that an insurer’s duty to defend allegations of property damage caused by the blow-out of a natural gas well under a commercial general liability policy did not depend on who owned the underlying damaged property. Mid-Continent Casualty Company v. Hollimon Oil Corporation, et al., No. SA-05-CA-1165-WWJ (W.D. Tex. Jun. 25, 2007).
Insurer Required to Defend Allegations of Cellular Injury - Held that commercial general liability policies’ coverage for “bodily injury” included obligation to defend allegations of biological and cellular injury. Ericsson Inc. v. St. Paul Fire & Marine Ins. Co., 423 F. Supp. 2d 587 (N.D. Tex. 2006).
Coverage for “Clean-up Costs” Under Oil and Gas Endorsement Includes Costs for Prevention of Pollution Incidents - Held that provision insuring reimbursement of “clean-up costs” under an Oil & Gas Endorsement to a commercial liability policy included coverage for costs incurred to prevent a “pollution incident” that poses an imminent and substantial danger of “bodily injury,” “property damage” or “environmental damage.” Western Gulf Oil & Gas, L.L.C. v. Mid-Continent Cas. Co., No. 3:05-CV-1995-B (N.D. Tex. Dec. 5, 2006).
Reservation of Rights Letter Triggers Insured's Right to Choose Counsel - Held that a liability insurer's tender of a defense subject to a reservation of rights letter created a disqualifying conflict of interest that triggered the insured's right to select counsel, in Housing Authority of Dallas, Tex. v. Northland Ins. Co., 333 F. Supp 2d. 595 (N.D. Tex. 2004)
Insured Entitled to Statutory Interest Under Prompt Pay Statute - Held that the insured's demand for a defense was a "first party" claim within the meaning of Texas Insurance Code Article 21.55, thus entitling the insured to statutory interest for the late payment of claims, in Travelers Indemnity Co. of Connecticut v. Presbyterian Healthcare Resources, 313 F. Supp. 2d. 648 (N.D. Tex. 2004); and Housing Authority of Dallas, Tex. v. Northland Ins. Co., 333 F. Supp 2d. 595 (N.D. Tex. 2004)
Breach of Duty to Defend Can Be Unfair or Deceptive Practice - Held that the breach of the duty to defend can give rise to a statutory claim under the unfair or deceptive insurance practice statute in Travelers Indemnity Co. of Connecticut v. Presbyterian Healthcare Resources, 313 F. Supp. 2d. 648 (N.D. Tex. 2004)
Costs for Replacing Defective Product Covered by E&O Policy - Held that insured printing company's costs incurred in correcting a mistake in payment coupon books were within exception to exclusion in printer's errors and omissions (E&O) policy which covered expenses incurred due to the withdrawal or inspection of named insured's products or work because of any known or suspected defects or deficiency, in Venture Encoding Service, Inc. v. Atlantic Mutual Insurance Company, 107 S.W.3d 729 (Tex. App. --Ft. Worth 2003, pet. denied)
Anti-Suit Injunction Granted Against Insurer - Held that, under "service of suit" clause in insurance policy, anti-suit injunction is appropriate to prevent insurer from filing suit after insured had filed coverage suit first, in American International Specialty Lines Ins. Co. v. Triton Energy Limited, et. al, 52 S.W.3d 337 (Tex. App -- Dallas 2001, writ denied)
Duty to Defend Established through Extrinsic Evidence - Held that extrinsic evidence may be used to establish the duty to defend in favor of the policyholder in Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466 (5th Cir. 2001).
Pollution Exclusion Found Ambiguous - Obtained coverage for insured oil exploration company for saline contamination resulting from drilling operations, in that saline coverage renders the absolute pollution exclusion ambiguous, in Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466 (5th Cir. 2001).
Anti-Suit Injunction Granted Against Insurer - Held that, under “service of suit” clause in insurance policy, anti-suit injunction is appropriate to prevent insurer from filing suit after insured has filed coverage suit first; in American International Specialty Lines Ins. Co. v. Triton Energy Limited, et al., 52 S.W.3d 337 (Tex. App. --Dallas 2001).
Attorney’s Fees Are Recoverable - Established that a policyholder is entitled under Texas law to recover its attorneys fees incurred in enforcing the policy after the insurer’s breach in Grapevine Excavation v. Maryland Lloyds, 35 S.W.3d 1 (Tex. 2000).
Breach of Contract is an “Occurrence” - Held that a breach of a construction contract can constitute an occurrence under a standard CGL policy in Grapevine Excavation v. Federated Mutual, 197 F.3d 720 (5th Cir. 1999), and McKinney Builders v. Nationwide, 1999 WL 608851 (N.D.Tex. 1999)
Pollution Exclusion Not “Absolute” - Established that the standard pollution exclusion in the CGL policy is not “absolute” under Texas law, in Kelley-Coppedge v. Highlands, 980 S.W.2d 462 (Tex. 1998).
Insurer Prevented from Drawing Down on Insured's Letter of Credit - Established that insured entitled to injunctive relief prohibiting its insurer from drawing down on letters of credit securing the insured's indemnification obligations under a largely self-insured insurance program, in AIG Risk Management, Inc. v. Motel 6 Operating L.P., 960 S.W.2d 301 (Tex. App.--Corpus Christi 1997, no pet.)
Insurer's Suit Stayed in Deference to Insured's Suit - Held that insurer's declaratory judgment action against its insured was properly stayed in deference to a parallel state court proceeding brought by the insured in Wilton v. Seven Falls Co., 115 S.Ct. 2137, 515 U.S. 277 (1995).