Three weeks ago, as part of a Professional Liability Underwriting Society (PLUS) series of recorded discussions on the professional liability insurance implications of the COVID-19 Coronavirus outbreak, I participated in a short recorded conversation on the viral outbreak’s D&O insurance implications with my good friends Carl Metzger of the Goodwin Procter law firm and Rob

David Topol

Private investments funds (hedge funds, PE firms, venture capital funds and the like) are a significant part of the U.S. economy. From a management liability insurance perspective, private investment funds present unique underwriting and claims issues. In the following guest post, David Topol, takes a detailed look at these kinds of enterprises, and considers the relevant claims and insurance issues. David is a partner in the insurance practice at Wiley.  He has substantial experience over the past fifteen years representing insurers as monitoring counsel and in coverage litigation on policies issued to investment advisers, private funds and broker-dealers.  A version of this article will be published in a forthcoming issue of the Wiley law firm’s Executive Summary blog. I would like to thanks David for allowing me to publish his 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 David’s article.
Continue Reading Guest Post: Private Investment Fund Claims from an Insurance Perspective

John F. McCarrick

As I have noted in prior posts, among the many implications from the current coronavirus outbreak is the possibility that the pandemic might result in D&O claims. This possibility in turn has a number of D&O insurance underwriting implications. In the following guest post, John F. McCarrick, a partner in the White & Williams law firm, takes a look at these possible underwriting implications. A version of this article previously was published as a White & Williams client alert. I would like to thank John for allowing me to publish his 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.
Continue Reading Guest Post: Underwriting D&O Risks for Coronavirus (COVID-19)-Related Exposures

On March 10, 2020, as part of a Professional Liability Underwriting Society (PLUS) series of recorded discussions on the possible professional liability insurance implications of the COVID-19 Coronavirus outbreak, I participated in a short conversation on the viral outbreak’s D&O insurance implications. Joining me for the conversation were my good friends Carl Metzger of the

A deceased small business owner’s widow sued the business’s two other co-owners for breach of fiduciary duty for failing to apply a life insurance payout to the company to buy out her deceased husband’s shares. The two co-owners submitted the claim to their company’s management liability insurer, which denied coverage for the claim, relying in part on the policy’s contractual liability exclusion. The two co-owners sued the insurer seeking coverage. The district court granted summary judgment for the insurer. On February 19, 2020, the Eighth Circuit, applying Kansas law, affirmed the district court in an opinion that, as discussed below, raises some interesting issues. The Eighth Circuit’s opinion can be found here.
Continue Reading No Contract Claims Asserted, Yet Contractual Liability Exclusion Precludes D&O Insurance Coverage

Gregg Glick
Erin Ringbloom

As regular readers know, I have written frequently in the past about late notice issues. In the following guest post, Gregg Glick, Senior Vice President, Private Company/Not-For-Profit Practice Lead at Allied World, and Erin M. Ringbloom, Esq. Vice President, North American Claims Group at Allied World, provide an insurer perspective, both from an underwriter and claims advisor point of view, on the issue of late notice. I would like to thank Gregg and Erin for allowing me to publish their article on my 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 Gregg and Erin’s article.
Continue Reading Guest Post: Late Notice:  Misinformation, Mistake or Missed Opportunity?

Jeff Hirsch

As I have noted in prior posts, and as a result of a number of factors, the current marketplace for D&O insurance marketplace is disrupted, with many buyers experiencing significant price increases. In the following guest post, Jeff Hirsch, Head of Product at Scale Underwriting, takes a detailed look at current D&O insurance pricing trends. A version of this article previously was published on the Foundershield blog. I would like to thank Jeff and Foundershield for allowing me to publish this article. 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 Jeff’s article.
Continue Reading Guest Post: D&O Insurance Pricing Trends

In the following guest post, Paul Ferrillo, a partner in the McDermott, Will & Emery law firm, takes a look at Excess Side A insurance and discusses its importance as part of a well-structured D&O insurance program. I would like to thank Paul for his willingness to allow me to publish his 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 Paul’s article.
Continue Reading Guest Post: Side A Excess D&O Insurance: Why Directors Need a Lot of It — Now!

Before the ice age, before the flood, before some of the people reading this were even born, the big D&O insurance coverage issue was allocation – that is, the division of loss between covered and non-covered claims or between covered and non-covered parties. After a flurry of judicial decisions in the mid-‘90s, after the addition of entity coverage to the standard D&O insurance policy (also in the mid-‘90s), and after policy allocation language became more or less standardized, litigated allocation disputes became much less frequent. Indeed, the last time I had occasion to write about an allocation coverage decision on this blog was in 2007. (Although, to be sure, allocation is still very much an issue in many D&O insurance claims.) It was with some surprise and interest that I read a recent Delaware Superior Court decision in the long-running Dole Foods insurance coverage dispute dealing with the question of allocating the underlying settlements between covered and non-covered amounts. The decision itself contains some surprises, as discussed below.
Continue Reading Delaware Court Rules “Larger Settlement Rule” Governs D&O Insurance Allocation

If you have not yet seen it, you will want to be sure to read the January 29, 2020 Harvard Law School Forum on Corporate Governance post entitled “Challenging Times: The Hardening D&O Insurance Market” by Carl Metzger and Brian Mukherjee of the Godwin Proctor law firm (here).
Continue Reading The Current D&O Insurance Market Turmoil: Causes, Effects, and What to Do