In a closely watched insurance coverage dispute, the Delaware Supreme Court reversed a lower court rulings and held that an appraisal proceeding is not a “Securities Claim” within the meaning of the defendant company’s D&O insurance policy and therefore that the proceeding is not a covered claim under the policy. Because it ruled there is no coverage, the Court did not address the other more controversial aspects of the lower court’s ruling. The Supreme Court’s October 23, 2020 opinion in In re Solera Insurance Coverage Appeals can be found here.
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“Bump-Up” Exclusion Blocks Coverage for Inadequate Consideration Paid for Insured Company’s Acquisition
In a recent decision following a bench trial, a California state court judge held that a D&O insurance policy’s “bump up” exclusion applies to preclude coverage for the settlement of claims by shareholders of the acquired company who claimed they had received inadequate consideration for their acquired shares. The judge’s decision, which reflected her reading of the specific exclusionary language involved as well as the testimony of several witnesses about the meaning of the provision, is interesting in that the “bump up” exclusion fights usually involve claims against the acquirer for paying inadequate consideration, not claims that the acquired company’s investors received inadequate consideration.
The court’s opinion is detailed but merits a full reading. The Court’s October 1, 2020 decision can be found here. (It should be noted that, under applicable procedural rules, the court’s decision is “tentative,” meaning that the parties have 15 days in which to file objections.)
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Guest Post: Bankruptcy and D&O Insurance: Top Tips and Reminders
In the current economic turmoil, bankruptcy is a big concern. In the following guest post, Andrew Solyntjes, Markel Bermuda Limited, and Andrew G. Lipton, of the White & Williams law firm, take review some of the key bankruptcy-related D&O insurance issues. A version of this article previously was published as a White & Williams client alert. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Here is the authors’ article.
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Mandating D&O Insurer Rotation? A Critique
Having observed and commented on the D&O insurance industry for many years, I am accustomed to periodic proclamations from non-industry-based observers about how the D&O insurance industry ought to work, based on various social, behavioral, or economic notions. These periodic declarations usually start with a series of vexed observations that the D&O industry does or does not do things that economic or behavioral models suggest the industry should or should not do, and then the declarations move on to a series of proposed prescriptions that would mandate how the D&O insurance business ought to work, for the supposed greater good of all.
The latest example of this literary genre is the academic paper “Changing the Guard: Improving Corporate Governance with D&O Insurer Rotations” written by UCLA Law Professor Andrew Verstein. Based on his construct of the way D&O insurance business works and his belief that D&O insurance business ought to work differently, Professor Verstein proposes that corporations ought to be forced to rotate D&O insurers every five years. I discuss my concerns with Professor Verstein’s proposal below. Professor Verstein’s paper can be found here. His August 19, 2020 summary of the paper on the CLS Blue Sky Blog can be found here.
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Guest Post: Thinking About D&O Coverage Exclusions
In the following guest post, Francis Kean and John McCarrick take a look at the state of play with respect to D&O insurance policy exclusions in light of the current market conditions, as well as the different approach to policy exclusions under U.S. and U.K. law. Francis is a Partner, Financial Lines, at McGill and Partners. John is a partner in the White & Williams law firm. I would like to thank Francis and John for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Francis and John’s guest post.
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Guest Post: The Impending Bankruptcy Surge and Insured vs. Insured Exclusion Considerations
Among the looming economic consequences of the pandemic is the likelihood of a huge surge in bankruptcy filings. A rise in bankruptcies will in turn likely lead to an increase in the number of bankruptcy-related litigation claims against directors and officers of the bankrupt companies, which in turn could lead to insurance coverage issues under the companies’ D&O insurance policies. In the following guest post, Alicia Garcia and Kate Hausmann, Complex Claim Specialists with Hiscox USA, and James Talbert and Elan Kandel of the Bailey Cavalieri law firm take a look at the issues that could arise in the bankruptcy context with respect to the policies’ Insured vs. Insured Exclusion. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article.
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No Coverage for Legal Expenses Incurred in Declaratory Judgment Action
In an interesting decision that touches on a number of basic D&O insurance coverage issues, a federal district court judge applying Oklahoma law has ruled that a company’s management liability insurance policy does not provide coverage for legal expenses a former company executive incurred in a declaratory judgment action that had been filed by another company executive to determine the parties’ rights under a profit sharing agreement. The court concluded that there was no coverage because the individual seeking coverage had not been named as a defendant in the lawsuit by reason of his status as an insured person. Even more interestingly, the court concluded further that, even though the individual had been named as a defendant in the declaratory judgment lawsuit, he had not incurred “Defense Expenses” in the lawsuit, and therefore suffered no “Loss.” Western District of Oklahoma Judge David Russell’s June 30, 2020 redacted opinion in the insurance coverage action can be found here.
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D&O Insurer’s Duty to Advance Defense Costs Applies to Covered Claims, Not Potentially Covered Claims
Many traditional liability insurance policies contain provisions specifying that in the event of a claim the insurer has the duty to defend the insured. However, many management liability insurance policies do not impose a duty on the insurer to defend the insured; rather, these policies usually provide that insureds will defend themselves, with the obligation on the insurer to advance defense costs as they are incurred, subject to all of the policy’s terms and conditions. However, because defense obligations under the more traditional duty to defend arrangement are well established and more familiar to many courts, courts sometimes attempt to resolve issues arising under duty to advance policies by referring to principles established with regard to duty to defend policies.
In a recent decision, the Ninth Circuit declined to apply duty to defend principles to interpret a D&O insurer’s duty to advance, holding that the insurer’s duty to advance extended only to actually covered claim and not to potentially covered claims as would be the case under a duty to defend policy. The appellate court also affirmed the district court’s rulings with respect to the applicability of the policy’s wage and hour claims exclusion; the policy’s definition of “loss,” precluding coverage for amounts deemed “penalties” in the applicable statute; and the insured vs. insured exclusion. A copy of Ninth Circuit’s June 17, 2020 opinion can be found here.
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The Insured vs. Insured Exclusion’s Bankruptcy Claim Coverage Carve-Back
As I noted in yesterday’s post, there could be a significant number of bankruptcies in coming months, and D&O claims in the bankruptcy context could give rise to insurance coverage disputes. In addition to the possible coverage issues I noted in yesterday’s post (pertaining bankruptcy exclusions, in particular), another issue that could arise is whether or not coverage for claims brought on behalf of the bankrupt debtor’s estate or on behalf of unsecured creditors is precluded by the insured vs. insured exclusion found in most policies.
Most insured vs. insured exclusions include a carve-back preserving coverage for claims brought by trustees and other estate representatives. In a recent ruling that broadly considered the scope and purpose of the insured vs. insured exclusion’s bankruptcy claim coverage carve-back, a New York intermediate appellate court concluded that the carve-back applied to preserve coverage for a claim brought by a Creditor Trust formed to pursue post-confirmation legal actions on behalf of unsecured creditors. The May 14, 2020 opinion in Westchester Fire Insurance Company v. Schorsch can be found here.
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A Current Hot D&O Insurance Question: Are Bankruptcy Exclusions Enforceable?
As a result of the economic fallout from the coronavirus outbreak, a number of businesses will struggle to survive. Some may wind up in bankruptcy. Indeed, a May 28, 2020 Harvard Business Review article (here), suggests that there could even be a “bankruptcy pandemic” – an “explosion” of bankruptcy proceedings that could “overwhelm” the bankruptcy courts. A number of companies have already filed for bankruptcy, and there undoubtedly will be more to come.
D&O insurance underwriters are well aware of these concerns, and are taking these possibilities into account, both with respect to the financial underwriting they are requiring, and with respect to the terms and conditions they are offering. In some instances, the D&O underwriters are including bankruptcy exclusions or creditors’ claims exclusions among the terms offered. These exclusionary provisions potentially represent a significant diminution of coverage. However, a recent law firm memo raises the question whether or not the type of bankruptcy exclusion that some carriers are offering are, in fact, even enforceable.
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