Warranty & Indemnity
Gilchrist Connell’s national, multi-disciplinary W&I Insurance team incorporates our Corporate, Coverage and Defence teams to deliver a unified solution for the life cycle of W&I insurance, or tailored to any part of it – from policy formulation, through to notification, coverage assessment and claim resolution.
Our unified solution
Led by Principal Alex Haslam, Gilchrist Connell is ideally placed to advise on W&I insurance matters, with its proven track record advising on insurance coverage and defence matters, augmented by strong corporate and workplace capabilities, which are framed and informed by the firm’s extensive experience advising insurers and sitting on panels.
We offer a highly effective, multi-disciplinary capability, with specialisation in Corporate, Coverage and Defence. This expertise includes senior lawyers who overlap each of those teams and collaborate closely to deliver a unified strategy and solution for insurers.
Pre-claim | Corporate & Coverage
Our Corporate team manages this stage of the W&I life cycle, in consultation with the Coverage team.
We work with insurers and potential insureds (usually buyers, but also sellers on the rarer occasions that a seller-side policy is taken out) from term sheet issuance onwards, to assess a transaction, adapt continuously to evolving deal requirements and assist where asked with product and policy negotiations, to enable the policy to mirror the relevant transaction terms, where possible.
The risk of W&I insurance and the extent of coverage is proportionate to the quality of the transaction documents, as well as the due diligence that is undertaken.
Our Corporate team assists insurers by:
- monitoring the extent of the due diligence that is undertaken and disclosure that is given
- monitoring the Q&A process
- reviewing, amending and signing off on critical provisions within transaction documents, particularly warranty, indemnity, representations, disclosure, limitations, knowledge qualifier, security, recourse and liability clauses
- monitoring negotiations between the parties
- alerting the insurer early about potential issues, then liaising with, and briefing, the Defence team, in order to provide advice as to recommended scope of cover, attachment points, deductibles and exclusions based on those issues
- recommending additional due diligence reports which should be undertaken in order to address deal-specific complex or threshold issues (e.g. legal, intellectual property, engineering)
- advising as to whether due diligence reports should be accepted from a vendor on a reliance basis
- liaising with insured’s external advisers during the process and facilitating underwriting calls
Post-claim | Coverage & Defence
Our Coverage and Defence team mobilise on short notice once a notification comes in.
Key elements of our process include:
- initial policy assessment and high level overview of policy cover, attachment point, deductible and obvious de minimis
- liaison with our Corporate team to assess the transaction and the risk allocation in the agreement documents
- liaison with and interviewing of the insured
- investigation of all key issues, such as the insured’s knowledge and fraud, to make more formal assessment of policy response
- investigation and assessment of loss, and engagement of external service providers as necessary
- reporting on coverage and loss
- engaging in coverage and/or claim resolution discussions with the insured/third party
- where there is a dispute with the insured, defending the insurer’s position
- on the seller-side, where there is a dispute with the buyer, defending the seller/insurer’s position.
Contact us to learn more as to how we can assist you.