The Second Circuit recently took up the insurance coverage dispute arising out of the high profile enforcement action the SEC pursued against hedge fund Patriarch Partners and its CEO, Lynn Tilton. The district court had ruled that coverage under the firm’s third level excess D&O insurance policy for the expenses the firm incurred in defending the SEC action was precluded because the agency’s investigation preceded the policy’s “prior and pending” litigation date. The Second Circuit affirmed the district court, but not on the grounds on which the lower court had relied. Rather, the appellate court affirmed the district court ruling based on its conclusion that coverage was precluded under language in the warranty statement the firm submitted for the excess insurance policy. The opinion includes interesting discussion of the issues surrounding the warranty statement. The Second Circuit’s December 6, 2018 Summary Order in the case can be found here.
Continue Reading Second Circuit: Excess D&O Policy’s Warranty Statement Exclusion Precludes Coverage

In the following guest post, Syed Ahmad, Brittany Davidson, and Andrea DeField of Hunton & Williams LLP take a look at a very interesting New York trial court decision relating to D&O insurers’ duty to advance defense costs. I would like to thank the authors for their willingness to allow me to publish their article as a guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ guest post.
Continue Reading Guest Post: Court Requires Insurers to Advance Insureds’ Defense Costs

KentuckyEveryone involved with D&O insurance knows that it is important to keep up with case law developments, in order to appreciate how courts are interpreting and applying various policy terms and conditions. But sometimes there is an additional reason why it is a good to keep up with court decisions – sometimes the cases provide practical lessons in the form of cautionary tales. That was certainly the case in a recent decision in which the Sixth Circuit, applying Kentucky law, affirmed a lower court ruling that late notice of claim precluded coverage under an excess D&O insurance policy. The policyholder had provided timely notice of claim to the primary carrier, but failed to provide notice to the excess carrier until six months after the policy had expired. The court’s conclusion that the late notice precluded coverage under the excess policy may not be surprising, but nevertheless the practical lesson – that is, that notice of claim should be provided to all of the carriers in the D&O insurance program – is an important one, as discussed further below. A copy of the Sixth Circuit’s February 29, 2016 opinion can be found here.
Continue Reading D&O Insurance: Late Notice and Excess Coverage

On September 7, 2012, the Delaware Supreme Court, applying California law, held that Intel’s excess insurer’s defense obligations were not triggered where Intel had settled with the underlying insurer for less than policy limits and had itself funded the defense fees above the settlement amount and below the underlying insurer’s policy limit. A copy of

One of the recurring D&O insurance coverage issues is the question of excess D&O insurers’ obligations when the underlying insurers have paid less than their full policy limits as a result of a compromise between the underlying insurers and the policyholder.

In the latest of a growing line of recent cases examining these issues

As I have noted in prior posts (most recently here), due to increasing average claims severity and escalating defense expense, excess D & O insurance is an increasingly important factor in the resolution of claims involving directors and officers of public companies. The greater involvement of excess D & O insurance has also meant