Insurance and Reinsurance

As disputes affecting the insurance and reinsurance industry have grown more varied and complex, so too have the legal skills and industry knowledge base required to serve clients effectively. We are immersed not just in the intricacies of reinsurance custom and practice—we also bring a deep understanding of the commercial relationships upon which industry participants depend.

Smith, Gambrell & Russell, LLP has successfully represented a broad cross-section of participants in the insurance industry at almost every level. Whether the client is an insurer, reinsurer, agent or broker, and whether the matter is transactional, regulatory or litigation-oriented, our attorneys have the experience to provide sophisticated and commercially savvy counsel.

Our practice group is recommended in the 2022 Legal 500 United States Guide for Insurance (for advice to insurers) and has been ranked for several years by Chambers & Partners. We received a Tier 1 National Ranking for Insurance Law in the 2023 edition of the U.S. News – Best Lawyers “Best Law Firms” guide.

Regulatory/Corporate. Because the business of insurance is highly regulated, insurers require attorneys who understand how state regulators think. We have represented insurance companies in obtaining licenses to transact insurance business, and we have defended licenses under adverse circumstances. We have represented insurance holding companies in the acquisition of insurance companies and obtained regulatory approval for the attendant change of control. We also bring significant experience in matters involving insurance company solvency, including public and private regulatory agreements and orders.

Surplus Lines. We have advised surplus lines insurers, alien and domestic, in connection with regulatory requirements concerning their operations. We have represented surplus lines insurers in a variety of claims and litigation, as well as in M&A transactions, including the sale of a book of business. We also have considerable experience with London Market transactions.

Insurers and Agents. We have significant experience representing insurers in connection with their relationships with agents and brokers. We have prepared agreements concerning the insurer’s relationship with producers, surplus lines brokers, third-party administrators, and vendors. Because of our extensive experience in arbitrating, mediating and litigating such matters, our agreements are tailor-made to fit the issues that arise from such disputes.

Defense and Coverage. We have advised insurers in connection with all manners of coverage issues, and we have provided defense to insureds in the following major areas: Product Liability; General Liability; D&O and E&O; Environmental Liability; Employment Practices Liability; Construction Surety; and Insurance Company class action defense. Our insurance class action team has been lead counsel in over 70 insurance company class actions over the past decade. We are currently, and have recently, litigated insurance class actions in federal and state courts in more than 20 jurisdictions, including Arizona, Delaware, Florida, New York, Ohio, Pennsylvania, and Texas.

Agents and Brokers. We have represented retail agents and brokers, wholesale brokers, and surplus lines brokers in connection with their licensing and regulatory compliance issues.

Title Insurance. We have represented national title insurers with respect to regulatory applications in New York and Florida, as well as holding companies seeking to change control of title insurers. We have represented national title insurers and their insureds in all types of litigation involving coverage and claims. In addition, we have defended title insurers in class action litigation.

Policy Creation and Analysis. We have drafted insurance policies and reinsurance treaties for insurers and reinsurers. We have also interpreted insurance policies for insurers and insureds and advised them with respect to coverage.

Reinsurance. We regularly handle disputes between insurers and reinsurers in both litigation and arbitration. We actively participate in the main reinsurance arbitration organization, ARIAS, and we are familiar with the other arbitration organizations governing reinsurance disputes. We have also represented both the Buyers and Sellers in several different reinsurance company M&A transactions.

Captives. We have experience in the formation of captive insurers, and in advising protected cell captive managers in connection with their business agreements. We have also represented protected cell captive managers in their disputes with their preferred shareholders.

Alternative Risk Transfer. We have advised reinsurers with respect to alternative risk transfer arrangements. In connection with those arrangements, we have drafted reinsurance agreements, retrocessional contracts, general agency agreements, insurance policies, Regulation 114 trust agreements, and various other documents.

Capital Raising/Financing. We have represented a number of insurance companies in both public and private financings, including the use of surplus notes, as well as in capital raising through the sale of equity shares; and in the divestiture of insurance and non-insurance company assets.

Select examples of our past successes include:

  • Serving as lead trial counsel to AXA in a S.D.N.Y. jury trial against AIG, resulting in a jury verdict in AXA’s favor for $35 million in fraud and recission damages as well as punitive damages.
  • Representing a significant disability insurer of the most valued NBA and NHL players with regard to dozens of claims, including the successful resolution of a $20 million claim against a prominent NHL team.
  • Representing a surety in a major financial fraud litigation arising out of more than a billion dollars in performance bonds for Enron “round-trip” energy transactions; after closing arguments, the case settled for a substantial discount on the bonds.
  • Winning a reinsurance arbitration award for a cedent, where the panel awarded our client $26 million in claims, and winning on appeal to the Second Circuit an award reinstating 100% of the client’s attorney fees for opponent’s bad faith conduct.
  • Securing a victory after a four-day bench trial in federal court in a restrictive covenant case brought by a large national insurance brokerage client against a former executive, with the court, among other things, awarding $1.9 million in attorneys’ fees, imposing a permanent injunction, and referring the defendant to the Office of the United States Attorney for investigation into possible perjury charges.
  • Representing a German reinsurer in an arbitration against a U.S. insurer where the client raised breach of contract claims as well as breaches of the duty of utmost good faith; a unanimous panel awarded over $15 million in compensatory damages plus 6.5% compound interest and $1 million in punitive damages.
  • Representing a major Japanese reinsurer, recovering hundreds of millions of dollars from a rogue managing agent who had defrauded the client and a large international accounting firm that audited the account but failed to alert the client to the agent’s fraud
  • Representing a D&O insurer in an arbitration following the insurer’s denial of coverage for an investment fund’s regulatory settlement of alleged securities manipulation.
  • Representing reinsurers challenging the fraudulent re-domestication from Massachusetts to Bermuda of a captive insurer of one of the largest U.S. corporations, where the captive declared bankruptcy shortly after arrival.
  • Representing insurers against putative class alleging antitrust and RICO violations based on alleged “big rigging” and the normal underwriting practices of Lloyd’s of London.
  • Winning dismissal of a $6 million claim brought under an insurance policy issued by its subsidiary insurance company.
  • Representing an excess CGL insurer in a multimillion-dollar allocation lawsuit against the CGL insurers of the indemnitor of the client’s policyholder, arising from an engine fire that burned down a tugboat for oil rigs.
  • Representing a leading life, health and disability insurance company with respect to over 100 coverage disputes across the U.S., as well as prosecuting claims against its third-party administrator.
  • Prevailing in a declaratory judgment action in which the insurer refused to defend a board member for a breach of fiduciary duty claim, which was upheld on appeal, resulting in the insurer being ordered to provide a full defense and reimburse the board member for its attorneys’ fees and costs spent in the underlying claim.
  • Successfully representing a pool of reinsurers whose fellow pool member fronted a risk for the pool and later entered into a fraudulent commutation with the underlying cedent using a grossly inflated IBNR figure (more than $100 million more than the IBNR carried on the underlying cedent’s books at the time). The fronting pool member did not pay the commutation price but instead assigned to the underlying cedent its rights under its retrocession contract with the other pool members. Our clients arbitrated the dispute with the underlying cedent/assignee and the case settled very favorably just before the evidentiary hearing was scheduled to begin.
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