DIRECTORS & OFFICERS LIABILITY INSURANCE

Transcription

1 DIRECTORS & OFFICERS LIABILITY INSURANCE Top 10 Negotiating Strategies December 9, 2008 Beverly B. Godbey Gardere Wynne Sewell LLP 1601 Elm Street, Ste Dallas, TX Phone Fax

2 READ YOUR POLICIES! 1) Identify coverage restrictions exclusions definitions conditions insuring agreements 2) Be wary of new policy forms 3) Check endorsements carefully 2

3 OBTAIN COMPARATIVE QUOTES! 4) Compare policy forms (not just price!) 5) Play one carrier off another 3

4 FIGHT FOR YOUR COVERAGE! 6) Demand better language 7) Meet personally with the underwriter 8) Offer your own endorsements 9) Bargain with give-aways 10)Don t give up! 4

5 Top 5 Traps Agreed Rescission Reduced Final Adjudication Mandatory Arbitration/ Construction/ Choice of Law Global Exclusions Bankruptcy Limitations 5

6 Top 5 Enhancements Insured v. Insured Exceptions Extended Reporting Period Improvements Pre-set Allocation Percentage Defense Cost Options Coverage for Foreign Corrupt Practices Act 6

7 Agreed Rescission How can a Texas insurance contract be rescinded? not unilaterally by the insurers by court order by agreement with the insured 7

8 Texas rescission requirements: 1) a representation 2) that is false 3) that is material to the risk 4) that the insured made with the intent to deceive the insurer 5) upon which the insurer relied to issue coverage THE BURDEN OF PROOF IS ON THE INSURER! 8

9 Where are agreed rescission provisions found? 1) Severability of the Application 2) Representations and Severability 3) Representations and Warranties 4) Proposal Form 5) Application 9

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11 What is the application? 11

12 (A) The Insured Persons represent that the declarations, statements, and information in the Application are true, accurate and complete. This Policy is issued in reliance upon the Application. If the Application contains intentional misrepresentations or misrepresentations that materially affect the acceptance of the risk by the Insurer, no coverage shall be afforded under this Policy for any Insured Person who knew on the Inception Date of this Policy of the facts that were so misrepresented. For the purpose of determining coverage, knowledge possessed by any Insured Person shall not be imputed to any other Insured Person. 12

13 Personal Acts Exclusions (G) based upon, arising from, or in any way related to the gaining of any personal profit, remuneration or advantage to which any Insured Person is not legally entitled; or (H) based upon, arising from, or in any way related to any criminal or deliberately fraudulent act or omission or willful violation of law by any Insured Person. 13

14 Best Final Adjudication Language 14

15 Reduced Final Adjudication Language 1) judgment 2) settlement 3) admission 4) arbitration 5) adjudication in any judicial administrative, regulatory or ADR proceeding, regardless of whether such proceeding is the underlying proceeding or a separate proceeding 15

16 Mandatory Arbitration 16

17 Why remove an arbitration provision? 1. Many state law rules and statutes protect insureds: a. Common law duty of good faith and fair dealing; b. Texas Ins. Code , et seq. c. Texas Civ. Prac. & Remedies Code (8) 2. Arbitration is no easier or cheaper for resolution of insurance disputes 17

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19 Construction/Choice of Law 19

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21 Global Exclusions Comprehensive General Liability ERISA Contract Professional Services 21

22 For superior 22

23 Bankruptcy 23

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25 Insured v. Insured Exceptions 25

26 Extended Reporting Period Enhancements Absolute options for 1, 2, 3 up to 6 years Completely Bilateral Cancellation non-renewal Option extension from 30 to 60 days Transaction or change of control 26

27 Pre-Set Allocation Some covered and some non-covered claims Some covered executives and some non-covered employees Some covered executives and non-covered organization 100% covered defense costs best efforts to allocate indemnity 100% allocation while at least one covered Insured Person joined 27

28 Defense Cost Options Duty to Defend Policies (groundless, false and fraudulent) Dedicated Defense Cost Limits Finally established for reimbursement Delete Hammer Clause? 28

29 Coverage for Foreign Corrupt Practices Act Definition of Claim must include regulatory proceedings Definition of Loss must include FCPA fines and penalties 29

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