February 20, 2018

February 20, 2018

Subscribe to Latest Legal News and Analysis

February 19, 2018

Subscribe to Latest Legal News and Analysis

Hurricane Harvey Alert: Insurance Considerations

Amid the immediate concerns of public safety and restoring business operations, companies can take certain steps to protect their insurance assets.

For business owners affected by Hurricane Harvey and its aftermath, it will be important to protect insurance rights by taking immediate steps. Most businesses have property insurance as well as liability insurance. Many commercial property insurance policies (or the property portion of a business owners policy or package policy) provide coverage for business interruption and loss of use of property. While the most immediate concerns are public safety and restoring business operations to normalcy, certain steps may be necessary in the near term to protect insurance assets.

Analyze Your Insurance Policies

It is crucial to evaluate all potentially applicable insurance policies for coverage. Property insurance is the first type of coverage to look to, but there may also be auto policies, “package” policies, marine policies, and general liability policies that are responsive.

In addition to providing coverage for physical damage to an insured’s property, many commercial property insurance policies also include coverage for losses due to the interruption of the insured’s normal business activity, including losses due to damage to utilities, customers, suppliers, infrastructure, and other critical, or dependent, properties. These extended coverages may apply even if the insured’s own property is not physically damaged. Policies typically cover loss of business income “during the period of restoration,” from when physical loss or damage takes place through the period of rebuilding, repairing, or replacing damaged property. Such coverage is particularly valuable where businesses are grappling with catastrophic months-long disruptions to their operations. Depending on policy wording, damage to suppliers or customers may result in covered “contingent business interruption” losses. This coverage may be critical to businesses where supply chains are disrupted.

Keep Records of Your Losses, Including Your Business Interruption and Contingent Business Interruption Expenses

Carefully documenting losses is important. Documentation for property loss includes not only property that was damaged but also any property rendered unusable. There may also be an obligation to preserve and protect the property from further losses, including mitigating damage. Business interruption coverage reimburses insureds for lost income during the time that the business was interrupted because of a hurricane. Contingent business interruption provides coverage for business interruption losses due to damage to customers or suppliers. These coverages require valuing and documenting the losses.

Provide Notice and Follow Policy Terms to Preserve Rights

Insurance policies require various kinds of notice, including notice of accident or occurrence and notice of claims. Notice requirements in policies variously use the terms “prompt,” “immediate,” and “as soon as practicable.” There is no such thing as too much notice—and such notice needs to be in writing—so erring on the side of more notice rather than less is recommended. As of September 1, 2017, there will be a new Texas statute on notice impacting insurance claims noticed after that date, including the timing and the form that notice must take under a contract of insurance.[1]

After notice of loss, property policies also usually require that the insured later submit a sworn “proof of loss” to catalogue the damages. Policies sometimes require the insured to submit this proof of loss within a fairly short time after the hurricane. In addition, insureds must also preserve and protect the property from further losses, including taking steps necessary to mitigate (or minimize) additional damage, including business interruption.

[1] See Texas Insurance Code §§ 542.051 (4), 542.055, and 542.056.

Copyright © 2018 by Morgan, Lewis & Bockius LLP. All Rights Reserved.


About this Author


Paul A. Zevnik is a partner in Morgan Lewis's Litigation Practice, resident in the Washington, D.C. and Los Angeles offices. Mr. Zevnik's principal area of practice is insurance coverage advice and litigation, with an emphasis on environmental, asbestos, toxic tort, and product liability coverage disputes. Mr. Zevnik also has experience in transactions in the insurance, broadcasting, and media businesses, including tax-driven transactions involving IRC §468B trusts...

Gerald P. Konkel, Litigation attorney, Morgan Lewis, Washington DC, insurance coverage lawyer, antitrust law

Gerald P. Konkel is an associate in Morgan Lewis's Litigation Practice. Mr. Konkel has represented and advised clients in litigation, arbitration, and mediation involving insurance coverage, antitrust, and intellectual property disputes in state and federal courts at both the trial and appellate levels. He has represented corporate plaintiffs in class action insurance recovery litigation and defendants in class action antitrust litigation and has counseled clients and third party consultants concerning the valuation of insurance assets. Mr. Konkel has also represented and advised clients involved in government antitrust investigations.   

Mr. Konkel's practice focuses on the representation of corporate policyholders in the preservation, protection, and recovery of insurance assets. In his practice, Mr. Konkel has represented companies involved in a broad range of industries including energy, manufacturing, medical device, and construction.

Jay recovers insurance assets by being trial-ready and trying or arbitrating high stakes cases when necessary.

Jay was recently a trial team leader for ITT in a successful bench trial seeking declaratory relief on the issues of trigger of coverage, all sums v. pro rata allocation, vertical v. horizontal exhaustion, and the impact of an allowed claim in insurer liquidation proceedings on accessing excess coverage.  ITT prevailed on all of the issues. The resulting decision included a well-supported extension of the 2016 landmark New York Court of Appeals Viking Pump “all sums” decision finding support for all sums based not only on prior insurance and non-cumulation of liability conditions in the policies but the standard “death at any time resulting therefrom” policy language, drafting history, and testimony of London ’71 umbrella form drafter Peter S. Wilson.

Jay was also a key trial team member in a declaratory judgment asbestos coverage action for Goulds Pumps against a holdout insurer involving $50 million in coverage resulting in a successful judgment affirmed on appeal. Goulds Pumps, Inc. v. Travelers Cas. & Sur. Co., No. B255439, 2016 3564244 (Cal.Ct.App., June 22, 2016). Trial followed successful litigation and motion practice against multiple other insurers and negotiations for favorable settlements.

Jay served as lead trial attorney for an electric utility seeking insurance coverage for thousands of asbestos-related bodily injury suits that alleged injury during construction of the utility’s power plants. The trial court rulings provided the client access to tens of millions of dollars of coverage. Jay preserved the favorable trial judgment by presenting successful oral argument through two levels of appellate review, including his November 4, 2013, argument (case No. 31) to Maryland Court of Appeals that resulted in a 7-0 favorable decision.

In addition to preserving and recovering insurance assets through trials and by being trial-ready, Jay works closely with our product liability and mass tort teams as well as business and finance attorneys to provide cross-disciplinary solutions to address our clients’ liabilities and other business losses.

David Luttinger, Morgan Lewis Law Firm, New York, Insurance Litigation Attorney

David A. Luttinger, Jr., advises clients involved with litigation, arbitration, and mediation over insurance coverage, toxic torts, environmental liabilities, commercial disputes, product liability, and criminal and regulatory investigations and prosecutions. He has handled disputes related to underlying securities, environmental matters, asbestos and silica, toxic tort, product liability, directors and officers, errors and omissions claims, and employment practices. His clients include Fortune 500 companies in the energy, chemical, manufacturing, retail, banking, and...

Leah Houghton, Morgan Lewis Law Firm, Boston, Business Litigation Attorney

Leah M. Houghton represents clients in complex commercial and business litigation matters in US federal and state court and in mediation and arbitration proceedings. She advises policyholders in insurance coverage disputes involving product liability, toxic torts, environmental matters, and financial losses. Her clients include manufacturing, energy, and financial services companies. Leah’s practice includes financial services litigation as well as counseling financial institutions on compliance issues when they face examinations by the Office of the Comptroller of the...


Michel Y. Horton is a partner in Morgan Lewis's Litigation Practice, concentrating on policyholder insurance recovery counseling and litigation.Mr. Horton has represented numerous Fortune 500 companies in a variety of complex litigation matters, including coverage disputes involving toxic torts, environmental property damage and personal injury, medical devices, product recall, and financial losses. He also assists clients in drafting specialty market insurance policies, particularly in connection with future...