Corporate America is in a constant state of flux. Mergers, acquisitions and spin-offs continue unabated. As a consequence, virtually every major insurance coverage case involves an examination of the corporate policyholder’s history and its rights to insurance for liabilities caused by predecessors and after-acquired entities.
While great care is devoted to documenting and perfecting these sophisticated corporate transactions, all too often, not enough attention is paid to the transfer of insurance assets. For example, to the extent that insurance assets are addressed, transferring documents often deal only with the disposition of currently in force insurance policies and are silent with respect historic insurance policies. As we now know, however, long tail liabilities arising out of asbestos, environmental and other exposures often trigger coverage under insurance policies dating back decades.
Equally troublesome is the virtually universal inclusion of so-called “anti-assignment” clauses in insurance policies that purport to require the insurer’s consent before rights under an insurance policy are transferred. A typical “anti-assignment” clause provides as follows: “Assignment of the interest under this policy shall not bind the company until its consent is endorsed thereon.” Insurers argue that these clauses are designed to prevent policyholders from saddling insurers with risks they never anticipated nor underwrote.
Courts throughout the country have been grappling with these and other issues. Although holdings vary from jurisdiction to jurisdiction, some general legal principles have emerged:
After a merger, the insurance assets of the predecessor entity typically transfer, along with any liabilities, to the successor entity.
The transfer of insurance assets pursuant to other corporate transactions, such as asset purchase agreements, is largely dependent on the wording of the agreement.
“Anti-assignment” clauses typically do not bar the transfer of insurance assets and rights after a merger or for losses that occur before the transfer.
A successor entity is generally not entitled to insurance coverage under its own insurance policies for liabilities of after-acquired subsidiaries that are based on events that occurred prior to the transfer.
All of this suggests that great care should be devoted to the treatment of insurance assets in any corporate transaction.