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You are here: Home / Archives for Directors & Officers Liability

Directors & Officers Liability

Greed is Not Good: The Personal Profit Exclusion

August 19, 2016 by Meredith Whigham Caiafa

As this blog has frequently discussed, many limitations and exclusions in liability policies address “moral hazard” situations by declining to provide insurance for bad behavior. One such exclusion is the “personal profit exclusion” contained in most D&O policies, which bars coverage for claims where an insured gains a profit or other advantage to which it is not legally entitled. This exclusion was recently addressed by a Massachusetts appellate court in Winbrook ... Keep Reading »

Ninth Circuit Leaves it to Policyholder to Pay Eddie Haskell’s Attorneys’ Fees

April 15, 2016 by Meredith Whigham Caiafa and Robert D. Helfand

Eddie: Well, look, there's nothin' to be so shook about. Lumpy's insurance'll take care of it. Moral hazard lurks around the edges of many disputes about liability coverage. Everyone agrees in principle that insurance shouldn’t help bad actors benefit from their wrongdoing, but parties often clash over where the principle applies.  Some courts have addressed the problem by asking if the insured has suffered an insurable “loss.”  E.g., Ryerson Inc. v. Federal Ins. Co., ... Keep Reading »

Arise and Exclude: Artful Pleading Fails to Circumvent Contractual Liability Exclusion

December 18, 2015 by Stephen J. Bagge

Smokey Sam simulated anti-aircraft missile

Awake, arise or be forever fall'n. - John Milton It's not uncommon for plaintiffs to couch their pleadings in terms that attempt to avoid exclusions in defendants' liability coverage. The plaintiffs in Bond Safeguard Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. 14-15233 (11th Cir. Oct. 5, 2015), appear to have had this goal in mind when they sought to recover payments it had made under certain surety bonds. The plaintiffs sued for negligence, but ... Keep Reading »

As TCPA Class Actions Soar, Issues Emerge in TCPA Coverage for Claims

December 7, 2015 by Elizabeth M. Bohn and John C. Pitblado

Picture of Postcard for Candlestick Telephones

Both the number of cases under the Telephone Consumer Protection Act (TCPA) and the types of practices that those cases challenge have mushroomed within the last several years. Yet a dedicated form of insurance against TCPA claims has not yet developed. Instead, businesses seeking defense and indemnification of TCPA suits have resorted to traditional policy provisions dealing with property damage, personal and advertising injury, and (more recently) the language of ... Keep Reading »

Eleventh Circuit Affirms Summary Judgment for Insurer on Basis of “Other Capacity” Exclusion

July 2, 2015 by Christopher B. Freeman

Picture of National Canadian Liberation Monument

On June 22, 2015, the Eleventh Circuit affirmed the grant of summary judgment in favor of National Union Fire Insurance Company of Pittsburgh, Pa., in an action where the insured sought coverage under a D&O policy.  The court found that the claim was excluded under a provision barring coverage for claims “arising out of” alleged misconduct in a capacity other than as a corporate officer and director, and that, accordingly, there was no bad faith as a matter of ... Keep Reading »

Seeing the Finish Line: Courts Increasingly Exempt Claims-Made Policies from the Notice Prejudice Rule

May 11, 2015 by Whitney Fore

Picture of U.S. Navy Race

In a majority of jurisdictions, the "notice-prejudice rule" provides that an insurer may not deny a claim on grounds of late notice without demonstrating prejudice. The rule is statutory in some states and judicially crafted in others.  Most courts, however, also hold that the rule does not apply to late notice under a claims-made-and-reported policy, as opposed to an occurrence policy.  In 2015, several cases have solidified this trend, and some of them actually extend ... Keep Reading »

Cut! Eighth Circuit Excludes Non-Board Member from CGL Coverage for “Directors”

October 9, 2014 by Patricia H. Thompson

Picture of Bert Glennon and John Ford on the set of Stagecoach

Directors and Officers liability policies are typically precise in defining the job descriptions of the individuals to whom they offer coverage.  Recently, in United Fire & Cas. Ins. Co. v. Thompson, No. 13-2352 (8th Cir. July 11, 2014), the U.S. Court of Appeals for the Eighth Circuit had to decide whether the term "director," which was left undefined in a corporation's Commercial General Liability policy, could apply to a supervisory employee, whom one party ... Keep Reading »

“So What?”: Montana’s Supreme Court Turns a Deaf Ear to Insurers Charged With Breaching the Duty to Defend

September 11, 2014 by Meredith Whigham Caiafa and Robert D. Helfand

Picture of Miles Davis

Earlier this year, in K2 Investment Group v. American Guaranty & Liability Ins. Co., 983 N.Y.S.2d 761 (N.Y. 2014), New York’s highest court adopted—but then decided against—a rule under which a liability insurer that has breached its duty to defend would be prevented from asserting coverage defenses in connection with the duty to indemnify.  That rule is settled law in Montana, however, and last month, in Tidyman’s Management Services, Inc. v. Davis, 330 P.3d 1139 ... Keep Reading »

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