Our Insurance & Risk practice provides legal advice on insurance law and risk management to corporate Australia, government and the insurance industry on both contentious and non-contentious matters. We cover all areas of complex insurance, risk and dispute resolution providing a holistic approach with national coverage across Australia.
The team is highly regarded nationally and internationally both by its peers and the insurance industry and our partners are considered to be amongst Australia's leading experts on insurance law. They are at the forefront of developments in the industry, meaning that we provide proactive, forward-thinking advice that deals not only with current risks but helps clients prepare and adapt to changes in the market and economic climate.
We provide solutions on both contentious and non contentious issues in the following areas:
Clients who have difficult insurance and liability risk issues look to us for practical solutions and we are the team of choice for many blue chip corporations and leading financial institutions when faced with insurance and risk concerns. We understand the challenges and the complex legal environment confronting our corporate clients. We advise on:
- placement and policy response over a broad range of insurance covers
- Directors' & Officers' (D&O) insurance issues
- risk management and due diligence advice
- policy interpretation and placement issues
- contractual issues
- complex claims litigation and dispute resolution
We undertake commercial work for the insurance industry (insurers and reinsurers) that includes:
- product development
- distribution including MGA agreements
- policy building and vetting
- contracts of insurance and reinsurance
- product disclosure statements
- solvent schemes of arrangement and portfolio transfers
- regulatory and compliance requirements
In addition to working with government agencies and corporations on insurance and indemnity coverage, contractual liability and risk allocation, defence of liability litigation, advice on civil liability reform and conduct of prosecutions and insurance and reinsurance claims, our team has advised on a wide range of insurance law reform and policy implementation issues. These include the HIH policy holder relief scheme, the Commonwealth's Terrorism Insurance Act and the establishment of the Australian Reinsurance Pool Corporation, the implementation of the Financial Services Reform provisions of the Corporations Act and the review of the Insurance Contracts Act.
Reinsurance solvent scheme: We advised on the first ever reinsurance solvent scheme of arrangement in Australia in 2002. We pioneered the Australian introduction of solvent schemes for reinsurers. This required drafting complex, detailed and novel schemes that also had to pass court and stakeholder scrutiny. We have subsequently acted on an additional two solvent schemes of arrangements - the first to involve Australian liabilities and the only others to have taken place in Australia to date.
Major investment bank: We represented a major investment bank in relation to disputes with a large number of Australian investors arising from the fall in value of collateralized debt obligations (CDOs) associated with the subprime fallout in the United States. In particular, we provided strategic advice to maximise recovery under the client's insurance policies in Australia and in the United States.
Multinational chemicals and explosives manufacturer: We represents an Australian multinational chemicals and explosives manufacturer, in connection with insurance, reinsurance, liability and claims management issues arising from an accident in Mexico involving the transportation of its products, resulting in a fire and explosion in which 28 people died and over 300 were injured, with substantial property damage. This matter was significant in that there were major claim protocols and settlement issues to manage. The instruction and coordination of local lawyers, loss adjusters and others was also required and there were underlying local insurance and international excess insurance and reinsurance recoveries to secure.
ANZ Bank: We represented the ANZ Bank in proceedings involving a A$130 million insurance claim arising under a professional indemnity and banker's bond policy against its captive insurer and over 40 overseas reinsurers. This case involved policy wording advice, advice on strategy to preserve the Bank's rights against its insurer and reinsurers in its divestiture of a major business unit, preparing detailed claim submissions for insurer/reinsurers, and alternative dispute resolution procedures in tandem with formal litigation. The case has been concluded, with a recovery to ANZ of over A$114 million out of a net policy limit of approximately A$126 million.
A large bank: We are advising the financial planning arm of a large bank on a claim to recover in excess of $20m from its professional indemnity insurers. The insurance issues involved in the case are many and varied, from non-disclosure/avoidance, to issues arising under several sections of the Insurance Contracts Act 1984. It will also involve questions of the reasonableness of the settlements effective with 200 claimants against financial planners and the extent to which proof of an actual underlying liability is required in order to establish a relevant liability for the purposes of the professional indemnity insurance (following on from the decision of the High Court in AMP v CGU). The case is likely also to include issues concerning the nature and extent of the duties of the insurance broker concerned.
A major Australian Financial Institution: We represent a major Australian Financial Institution, in connection with Comprehensive Crime and Civil Liability Insurance issues arising out of a class action in an overseas jurisdiction by a number of investors, alleging losses caused by inappropriate selling of complex financial products derived from emerging market indices. This involves cross-jurisdictional management of financial liability insurance issues, claims aggregation and allocation to policy years, and management of fence-sitting reinsurers.
Treasury: We represented and advised Treasury in relation to the establishment, implementation and ongoing administration of the HIH Claims Support Scheme which was established by the Federal Government in May 2001 following the collapse of the HIH Group. In the early stages that included negotiating on behalf of the Treasury with relevant stakeholders (the Insurance Council of Australia, the liquidator of HIH and various insurers who acted as claims managers), the terms of agreements underpinning the Scheme. Since that time, Clayton Utz has provided ongoing advice to Treasury in relation to the operation of the Scheme.
AssetInsure: We represented AssetInsure in relation to the well known New Cap Re test case litigation. The issues concerned the proper interpretation of and interaction between a number of legislative provisions creating statutory priorities in the distribution of funds in the winding up of insurance and reinsurance companies. The High Court clarified the meaning of "liabilities in Australia" and the decision will continue to have implications for the insurance industry and insurance regulators.