Essential Insurance Considerations for Architecture, Engineering and Survey Firms During a Merger or Acquisition

By: Eric M. Alderson, MLIS, CRIS, Risk Manager

Mergers and acquisitions (M&A) are complex undertakings that require meticulous planning and a thorough understanding of various aspects to ensure a smooth transition and long-term success. Among the many critical areas to consider—such as legal, accounting, and personnel matters—insurance considerations often play a pivotal yet sometimes overlooked role. For architecture, engineer and survey firms, insurance is particularly crucial due to the nature of their work, which involves significant liability risks. This article outlines the important insurance considerations that should be factored into the M&A process.

Understanding the Insurance Landscape

Types of Insurance Coverage

1. Professional Liability Insurance (Errors and Omissions)

   • Protects against claims of negligence, errors, or omissions in professional services.
   • Essential for architecture and engineering firms due to the high risk of project-related disputes.

2. General Liability Insurance

   • Covers third-party bodily injury and property damage.
   • Important for protecting the firm against everyday operational risks.
   • Any other specialty general liability lines of coverage may include, Railroad Protective (RRP), and Contractors / Owners Protective (OCP) liability policies.

3. Workers’ Compensation Insurance

   • Provides benefits to employees who suffer work-related injuries or illnesses.
   • Required by law in most jurisdictions and crucial for employee protection.

4. Commercial Property Insurance

   • Covers damage to physical assets such as office buildings, equipment, and supplies.
   • Necessary to safeguard the firm’s tangible assets.

5. Cyber Liability Insurance

   • Protects against data breaches and cyberattacks.
   • Increasingly important as firms rely more on digital technologies and handle sensitive client information.

Many firms will also carry additional lines of coverage that may include; Employment Practices Liability (EPLI), Management Liability, and Directors and Officers Liability (D&O) policies.  Carefully revew these policies, along with any applicable umbrella or excess liability policies, especially those that provide client or contract specific excess coverage limits.

Key Insurance Considerations in M&A

Due Diligence

1. Review Existing Policies

   • Conduct a thorough review of the target firm’s existing insurance policies.
   • Identify any coverage gaps, exclusions, and policy limits.
   • Ensure that policies are in force and premiums are up to date.

2. Assess Claims History

   • Evaluate the target firm’s claims history to identify any patterns of frequent or severe claims.
   • Consider the potential impact of past claims on future insurance costs and coverage availability.

3. Policy Compatibility

   • Determine whether the target firm’s insurance policies are compatible with those of the acquiring firm.
   • Identify any discrepancies in coverage terms, limits, and deductibles.

Post-Merger Integration

1. Consolidate Insurance Programs

   • Integrate the insurance programs of both firms to create a unified and efficient coverage strategy.
   • Negotiate with insurers to optimize coverage terms and leverage economies of scale.

2. Update Coverage

   • Adjust coverage limits and terms to reflect the combined entity’s risk profile and operational scope.
   • Ensure that new projects and expanded operations are adequately covered.

3. Tail Coverage

   • Consider purchasing tail coverage (extended reporting period) for claims-made policies to cover incidents that occurred before the merger but are reported afterward.
   • This is particularly important for professional liability insurance.

Legal and Regulatory Compliance

1. Regulatory Requirements

   • Ensure compliance with all relevant regulatory requirements regarding insurance coverage.
   • Verify that the combined entity meets the insurance obligations imposed by clients, contracts, and industry standards.

2. Indemnification Provisions

   • Review and update indemnification provisions in contracts to reflect the new entity’s structure and insurance coverage.
   • Clearly define the responsibilities and liabilities of each party involved in the merger.

Impact on Professional Services Agreements

Review Existing Agreements

1. Assess Current Contracts

   • Review all existing professional services agreements (PSAs) held by both firms.
   • Identify clauses related to insurance requirements, indemnification, liability limits, and dispute resolution.

2. Client Obligations

   • Ensure that both firms’ obligations to clients are understood and can be fulfilled post-merger.
   • Address any potential conflicts or overlaps in client commitments.

Align Contractual Terms

1. Standardize Agreements

   • Develop standardized PSAs for the merged entity that incorporate best practices from both firms.
   • Ensure consistency in terms, conditions, and insurance requirements.

2. Update Insurance Provisions

   • Adjust insurance provisions in PSAs to reflect the combined entity’s new insurance programs.
   • Clearly communicate any changes in coverage to clients.

3. Indemnification and Liability

   • Harmonize indemnification and liability clauses to ensure they are consistent across all contracts.
   • Define the merged entity’s approach to risk management and client protection.

Communicate with Clients

1. Client Notification

   • Proactively communicate with clients about the merger or acquisition and its impact on existing PSAs.
   • Reassure clients about the continuity of services and the enhanced capabilities of the combined firm.

2. Negotiation and Revisions

   • Be prepared to negotiate and revise PSAs with key clients to address any concerns or specific requirements.
   • Ensure that revised agreements are mutually beneficial and legally sound.

Integrating Insurance with Other Considerations

Legal Considerations

• Coordinate with legal advisors to ensure that insurance considerations are aligned with the overall legal strategy.
• Address any potential legal liabilities and ensure that they are adequately covered by insurance.

Accounting Considerations

• Work with accounting professionals to assess the financial impact of insurance costs on the merged entity.
• Incorporate insurance expenses into financial projections and budgets.

Personnel Considerations

• Communicate changes in insurance coverage to employees and address any concerns they may have.
• Ensure that employees understand their benefits and the claims process under the new insurance programs.

Conclusion

In the intricate process of mergers and acquisitions, particularly for architecture, engineering and survey firms, insurance considerations should be given significant attention alongside legal, accounting, and personnel matters. Properly addressing insurance issues can help mitigate risks, protect assets, and ensure a smoother transition. By conducting thorough due diligence, integrating insurance programs effectively, updating professional services agreements, and ensuring compliance with legal and regulatory requirements, firms can navigate the complexities of M&A with greater confidence and security.