The existence of insurance is often key to a lawsuit and one of the first orders of business in discovery. There are statutory provisions allowing for discovery of the existence and contents of insurance agreements—as well as limits on it.
Parties negotiating a business transaction don’t have to accept the risks or duties imposed by law on the proposed arrangement. For example, just because a property owner is generally liable for damage caused by hazardous materials on his or her property (42 USC §9607) doesn’t mean that a potential buyer can’t negotiate that the seller be financially responsible for cleaning up materials that were on the property before the closing date. Here’s how to (re)allocate risk in your next transaction.