Among the various provisions of the D&O insurance policy, one of the most litigated provisions is the Insured vs. Insured exclusion, which, in simple terms, precludes coverage for claims brought by one insured against another insured. However, the exclusion typically has several carve-back provisions preserving coverage for various kinds of claims that otherwise would be excluded. One of these carve-back provisions came into play in a court’s recent determination, applying Kentucky law, that coverage for a claim brought by a group of plaintiffs that included both insured and non-insured persons was precluded, because the claim had not been brought independently of the participation of an insured person.
A copy of Southern District of New York Judge Valerie Caproni’s December 9, 2022, opinion in the case can be found here. A January 18, 2023 post on the Wiley law firm’s Executive Summary blog about the decision can be found here.