Kristopher Marsh

Directors and officers liability insurance is an essential coverage for organisations of all shapes and sizes, however, it is not always well understood. It aims to protect an organisation and its management from claims made against them in the performance of their duties. Without such coverage in place, they may be exposed to significant financial loss.

In this article, we will explore the concept of directors and officers liability insurance, and understand why it is an important part of any comprehensive insurance programme.

Contents
1 Directors and officers liability insurance: A definition
2 How does it fit within an insurance programme?
3 What are the key managerial risks?
4 Common claim examples
5 How do managerial risks arise?
6 What types of protection are available?
7 Core policy coverages
8 Optional entity coverages
9 Variations of directors and officers liability insurance
10 Who is insured by a policy?
11 What type of acts are insured?
12 What type of losses are insured?
13 How is a policy wording structured?
14 How does coverage operate through time?
15 How does an organisation acquire coverage?
16 Selecting a limit of liability and self-insured retention
17 How can a changes to an organisation effect its coverage?
18 How to notify and handle claims
19 Conclusion

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An organisation’s management must satisfy a range of directors duties in the performance of their role. These duties represent management’s responsibility to act in the best interest of an organisation, while also considering the interests of its stakeholders. A failure to appropriately consider directors duties can have significant personal consequences.

In this article, we will explore the concept of directors duties, and understand how they contribute to the risks faced by an organisation and its management.

Contents
1 Directors duties: A definition
2 What is the role of management?
3 What is a director?
4 The responsibilities of the board
5 What is a corporate officer?
6 The importance of effective corporate governance
7 How does board of directors liability arise?
8 The common types of liability
9 What are the consequences of a claim?
10 Protecting individuals with a directors indemnification agreement
11 Insurance as a last line of defence
12 Conclusion

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Board of directors liability is an ongoing concern for an organisation and its management. It can arise from a failure to satisfy a range of duties that determine how an organisation is to be governed. If these duties are not complied with, it may result in a claim that needs to be defended, often at great cost.

In this article, we will explore the concept of board of directors liability, and understand how it contributes to the risk faced by an organisation and its management.

Contents
1 Board of directors liability: A definition
2 The role of management
3 What is a director?
4 The duties of directors
5 What are the responsibilities of the board?
6 What is an officer?
7 The importance of effective corporate governance
8 The common types of liability
9 What are the consequences of a claim?
10 Protecting individuals with a directors indemnification agreement
11 Insurance: The last line of defence
12 Conclusion

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A directors indemnification agreement is an essential component of protecting an organisation’s management from liability. It provides individuals with the comfort of knowing that they will be supported in times of difficulty. That way, they can concentrate on performing their duties instead of worrying that their personal assets are at risk.

In this article, we explore the concept of a directors indemnification agreement and understand how it can be used to mitigate the risk faced by an organisation’s management.

Contents
1 What is a directors indemnification agreement?
2 The role of management
3 What is a director?
4 The duties of directors
5 What are the responsibilities of the board?
6 What is an officer?
7 The importance of corporate governance
8 How does board of directors liability arise?
9 The common types liability
10 What are the consequences of a claim?
11 Insurance: The last line of defence
12 Conclusion

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Side A coverage is an important component of directors and officers liability insurance. It provides individual managers with protection in the event that the organisation that they represent cannot indemnify them from a claim. Instances of non-indemnification can occur for a variety of reasons and can have serious consequences if not considered in advance.

In this article, we will explore Side A coverage to understand why it is an essential protection for an organisation’s management.

Contents
1 Side A coverage: A definition
2 An overview of managerial-related risk
3 Why does non-indemnification occur?
4 The key attributes of Side A coverage
5 The role of presumptive indemnification
6 The implications of entity coverage
7 Stand-alone Side A coverage: A solution
8 Emergency provision: An additional limit
9 Claim examples: Side A coverage
10 Conclusion

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Side C coverage is an important component of directors and officers liability insurance. It provides an organisation with protection in the event that it is named in a securities-related claim. This coverage can be a great benefit, but may also have unintended consequences for a policy otherwise intended for an organisation’s management.

In this article, we will explore Side C coverage and understand why an organisation may want to consider purchasing it.

Contents
1 Side C coverage: A definition
2 The risk of shareholder litigation
3 Types of securities-related claims
4 The key attributes of Side C coverage
5 How to acquire Side C coverage
6 The benefits of Side C coverage
7 The drawbacks of Side C coverage
8 Side C coverage: Addressing the challenges
9 Claim examples
10 Conclusion

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Employment practices liability insurance is an essential coverage for organisations of all shapes and sizes, however, it is not always well understood. It aims to protect an organisation and its management from claims made against them in the performance of their duties. Without such coverage in place, they may be exposed to significant financial loss.

In this article, we will explore employment practices liability insurance, and understand why it is an important part of any comprehensive insurance programme.

Contents
1 Employment practices liability insurance: A definition
2 How does it fit within an insurance programme?
3 What are the key employment risks?
4 Common claim examples
5 How do employment risks arise?
6 What types of protection are available?
7 Core policy coverages
8 Variations of employment practices liability insurance
9 Who is insured by a policy?
10 What type of acts are insured?
11 What type of losses are insured?
12 How is a policy wording structured?
13 How does coverage operate through time?
14 How does an organisation acquire coverage?
15 Selecting a limit of liability and self-insured retention
16 How can a changes to an organisation effect its coverage?
17 How to notify and handle claims
18 Conclusion

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Management liability insurance is an essential coverage for organisations of all shapes and sizes, however, it is not always well understood. It aims to protect an organisation and its management from claims made against them in the performance of their duties. Without such coverage in place, they may be exposed to significant financial loss.

In this article, we will explore management liability insurance and understand why it is an important part of any comprehensive insurance programme.

Contents
1 Management liability insurance: A definition
2 How does it fit within an insurance programme?
3 What are the key managerial risks?
4 Common claim examples
5 How do managerial risks arise?
6 What types of protection are available?
7 Core policy coverages
8 Optional entity coverages
9 Who is insured by a policy?
10 What type of acts are insured?
11 What type of losses are insured?
12 How is a policy wording structured?
13 How does coverage operate through time?
14 How does an organisation acquire coverage?
15 Selecting a limit of liability and self-insured retention
16 How can a changes to an organisation effect its coverage?
17 How to notify and handle claims
18 Conclusion

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D&O insurance for nonprofits is an essential coverage for organisations of all shapes and sizes, however, it is not always well understood. It aims to protect an organisation and its management from claims made against them in the performance of their duties. Without such coverage in place, they may be exposed to significant financial loss.

In this article, we will explore D&O insurance for nonprofits, and understand why it is an important part of any comprehensive insurance programme.

D&O insurance for nonprofits: A definition

D&O insurance for nonprofits is a type of coverage purchased by an organisation to protect its management, and to some extent itself, from the consequences of managerial-related claims. In other words, it protects an organisation and its management from claims arising in the performance of managerial-related activities.

It is held by a wide variety of organisations, such as:

• Nonprofit organisations
• Charities
• Religious organisations
• Hospitals
• Universities and other academic institutions
• Government departments

By purchasing D&O insurance for nonprofits, an organisation can not only protect its own financial interests but also that of individual managers. When combined with appropriate risk management strategies, it can provide an organisation with the best possible opportunities for attracting talented individuals into the ranks of leadership.

How does it fit within an insurance programme?

D&O insurance for nonprofits typically forms part of a comprehensive insurance programme.

General insurance

A policy will often be purchased alongside a range of general insurance coverages, such as:

• Property damage and business interruption insurance
• General liability insurance
• Marine transit insurance
• Motor vehicle insurance
• Corporate travel insurance
• Workers compensation insurance

Financial lines insurance

And it will complement any other financial lines insurance coverages that an organisation may purchase, such as:

• Cyber insurance
• Professional indemnity insurance

Within a broader programme, D&O insurance for nonprofits is often considered an auxiliary type of coverage. Its premiums can be relatively small when compared with other classes of insurance. However, from the perspective of an organisation’s management, it is arguably one of the most important, as it ultimately protects their personal assets from loss.

What are the key managerial risks?

The directors and officers of an organisation, known collectively as management, play an important role in governing its activities. But with this managerial responsibility comes many risks.

Common sources of claims

An organisation’s management have a fiduciary responsibility to place an organisation’s interests ahead of their own. However, while doing so they must also consider the consequences of their actions on others; specifically, an organisation’s stakeholders.

Common stakeholders of an organisation include:

• Shareholders and/or members
• Government and regulatory authorities
• Creditors
• Competitors
• Suppliers
• Employees

Common claims

If a stakeholder becomes disgruntled with an organisation’s management they may wish to hold them accountable for their actions. To do so, any grievance may be formalised in a claim.

Common claims against management include:

• Negligent management of an organisation’s operations
• Inadequate disclosure in financial reports
• Misuse of an organisation’s funds
• False and misleading representation during fundraising activities
• Failure to comply with employment laws
• Theft of intellectual property and poaching of a competitor’s donors
• Breach of fiduciary duty resulting in financial loss or insolvency
• Inadequate or insufficient corporate governance
• Regulatory non-compliance

When a claim is made against an organisation or its management, it must be defended, no matter its merits. In this respect, a frivolous claim carries just as much weight as a genuine one and must be addressed with the same seriousness. With a little luck, a claim may be resolved through mediation. But if not, it may need to be defended before a court of law.

Common claim examples

To better understand what a directors and officers liability insurance claim might look like in practice, let’s take a look at a few claim examples.

Example 1 – Infringement of bylaws

An amateur sporting association disqualifies a competitor for suspected cheating in a race. At the tribunal hearing, the committee hands down a one-month suspension. In response, the competitor launches a legal claim against the committee, alleging that it did not act in accordance with its own bylaws, while also seeking reinstatement to active competition.

Legal counsel is appointed and defence costs of $10,000 are incurred – $5,000 of which exceeding the self-insured retention. Halfway through the claim, the competitor stops replying to all correspondence. No further update is received and the matter is eventually closed.

Example 2 – Breach of fiduciary duty

The director of a charity fails to disclose to the board that his family member has a financial interest in the building contractor who has been appointed to refurbish the charity’s new office. When this information comes to the attention of a key donor, they sue for a breach of fiduciary duty, demanding that he resign from his position.

The director makes a claim notification to the insurer, requesting indemnification under the terms of the policy. Panel counsel is appointed to prepare a defence on his behalf. Legal costs of $15,000 are incurred, and after some discussion, the director tenders his resignation.

Example 3 – Misleading and deceptive conduct

The chief executive of a social club is sued by a group of members after he made public comments that certain high-profile celebrities had joined the club. When this information was discovered to be false, the members that joined the club relying on his statements alleged that his behaviour was misleading and conducted in a deceptive way.

The insurer is notified of the claim, and legal counsel is appointed to defend the chief executive officer. Defence costs of $5,000 are incurred, and the chief executive officer is replaced shortly thereafter. The club agrees to refund the fees of the affected members.

How do managerial risks arise?

An organisation’s management is responsible for overseeing its operations and monitoring its ongoing performance. There are clear obligations imposed on them, and also potential consequences should these obligations not be fulfilled as expected.

Directors duties

The management of an organisation is required to satisfy a range of directors duties in the performance of their role. Directors duties vary between jurisdictions, but are typically articulated in statutory law (enacted by government), regulatory law (enacted by regulatory authorities), and case law (established by court precedent). These laws cover not only an individual’s behaviour, but also an organisation’s.

Board of directors liability

If directors duties are not performed as expected, it can result in board of directors liability. When a stakeholder believes that they have been adversely affected by the actions of organisation and its management, they may attempt to hold them accountable. By doing so, they will often seek compensation or some other remedy for the financial injury that they claim to have suffered.

What types of protection are available?

There are two common methods of protecting an organisation and its management from managerial-related claims.

Directors indemnification agreement

A directors indemnification agreement, also known as a deed of indemnity, is the first line of protection against board of directors liability. It is essentially a contract between an organisation and its management, whereby an organisation promises to protect them from any personal liability arising in the performance of their managerial duties.

D&O insurance for nonprofits

D&O insurance for nonprofits is the second (and final) line of defence for an organisation and its management. It can protect an organisation from the costs of indemnifying management, and in certain situations protect an organisation from its own liability. Importantly, it will also protect individuals in the event that an organisation cannot indemnify them.

Core policy coverages

Now that we understand the responsibilities of management and the types of risks they face, we can explore the insurance coverage designed to protect them.

A policy will typically include two core coverages:

Directors and officers liability coverage (Side A)

Side A coverage, also known as directors and officers liability coverage, protects management when a claim is made against them personally and the organisation which they represent cannot or will not indemnify them. In these situations, without insurance coverage, an individual would be responsible for financing their own defence, often at a great cost.

Organisation reimbursement coverage (Side B)

Side B coverage, also known as organisation reimbursement coverage, reimburses an organisation for the costs incurred when indemnifying management from a claim in accordance with its indemnification obligations. In these situations, without insurance coverage, an organisation would be responsible for financing a legal defence from its own balance sheet.

Optional entity coverages

In addition to its core coverages, a policy may also allow an organisation to insure its own liability in certain situations. This is generally known as entity coverage.

Organisation liability coverage

Organisation liability coverage protects an organisation from a broad range of civil liability claims. This coverage is often available to nonprofit organisations due to the fact that many are member-operated, and therefore the financial consequences of a claim against the organisation can be just as devastating as a claim made against an individual.

While this coverage is typically not economical for larger organisations, exceptions can be made for nonprofit organisations. An insurer’s intent is to provide protection for managerial-related claims against the entity, while excluding claims that may be considered commercial in nature or more appropriately covered under another class of insurance.

Employment practices liability insurance

Employment practices liability insurance protects an organisation from its own liability in employment-related claims. While directors and officers liability insurance typically includes coverage for claims made against an individual, employment practices liability insurance extends this coverage to include claims made against an organisation itself.

Commercial crime coverage

Commercial crime insurance, also known as fidelity insurance, protects an organisation from first-party losses incurred as a result of theft, fraud and misappropriation. More specifically, it provides coverage for the theft of its money, securities and property, as a result of misappropriation by its employees and also external parties.

Statutory liability coverage

Statutory liability insurance protects an organisation from claims made by government and regulatory authorities. While directors and officers liability insurance typically includes coverage for claims made against an individual, statutory liability insurance extends this coverage to include claims made against an organisation itself.

Superannuation trustee liability coverage

Superannuation trustee liability coverage, also known as fiduciary liability coverage, protects an organisation and its management from claims arising from the administration of retirement, superannuation or 401k schemes. In other words, it covers the liabilities that may arise when managing a pension plan on behalf of an organisation’s employees.

Who is insured by a policy?

A policy will be constructed to protect an organisation and its management in a deliberate manner, defining those who are considered to be an insured.

Insured organisation

A policy will typically cover a principal insured organisation and any subsidiary of this entity. Collectively, these entities will often be referred to as the policyholder. The principal insured organisation will typically be listed on the policy schedule, and the definition of subsidiary will be located in the policy wording.

A subsidiary will typically be defined as any entity which the principal insured organisation owns or controls more than 50% of its shares or voting rights, directly or indirectly. If an organisation wishes to insure an entity that does not fulfil the definition of a subsidiary, it may be considered for inclusion as an additional insured organisation by endorsement.

A policy is likely to include a provision for automatically covering an organisation’s new and acquired subsidiaries throughout a policy period. The coverage for new and acquired subsidiaries often aligns closely with cessation of subsidiaries coverage, which will maintain coverage for any subsidiary that is wound up or divested during a policy period.

Insured person

A policy will typically cover any insured person of the policyholder. The definition of insured person will be listed in the policy wording, and will be broadly defined to capture the types of individuals that are exposed to managerial-related risk.

An insured person is typically defined as any:

• Director, officer, or managing partner
• Chairman, secretary, or committee member
• Employee acting in a managerial capacity

Any past, present or future insured person will be covered as long as an organisation continues to purchase a current policy. This is certainly a great benefit, however, retiring individuals may be anxious that their ongoing coverage relies on an organisation continuing to purchase a policy. To address this risk, many policies will include some form of retired directors and officers coverage.

What type of acts are insured?

A policy intends to cover an organisation and its management for specific types of behaviour.

Insured capacity

A policy will cover an organisation’s management in their insured capacity as directors, officers, and managers more broadly. This means that an insurer’s intent is to only cover managerial-related risks and not those arising in another capacity. As a result, an insured will not be covered for acting in a personal or professional capacity; other insurances are required to cover these risks.

Wrongful act

A policy will cover an organisation’s management for any actual or alleged wrongful act while acting in their insured capacity.

The definition of a wrongful act will typically include any:

• Act, error, or omission that others perceive to be wrongful
• Misstatement or misleading statement
• Breach of directors duties
• Breach of fiduciary duty
• Breach of trust
• Neglect

Employment-related wrongful act

A policy will also provide coverage for any actual or alleged employment-related wrongful act, such as:

• Unfair dismissal
• Failure to employ or promote
• Harassment, discrimination, or humiliation
• Defamation, including libel (written) and slander (verbal)
• Retaliation

Management liability insurance will typically include entity coverage for employment-related claims as long as the employment practices liability coverage section of a policy has been selected.

What type of losses are insured?

A policy will define what types of loss incurred by an insured will be covered in the event of a claim.

Insured loss

The definition of loss will typically include:

• Defence costs, for legal representation by a solicitor or barrister
• Settlement costs, such as a negotiated claim payment or court-awarded judgement
• Formal investigation costs, incurred while preparing for an official inquiry
• Prosecution costs, for overturning undesirable judgements handed down in the course of a covered claim
• Fines and penalties, issued by regulatory authorities (where insurable by law)

Uninsured loss

However, not all types of loss that an organisation and its management may incur will be covered.

The definition of loss will not typically include:

• Fines and penalties that are not insurable by law
• Taxes
• The cost of complying with a court order or injunction
• Employment-related costs, such as wages, salaries, commissions, and other benefits

How is a policy wording structured?

A policy consists in its entirety of a policy schedule, policy wording, and endorsements. Of these, the policy wording plays a central role in defining the terms of coverage.

Insuring clauses

Insuring clauses, also known as operating agreements, are responsible for articulating the coverage afforded by a policy. They outline the promise of an insurer to pay for, or on behalf of, an insured for a covered loss. It is not unusual for a policy to include more than one insuring clause, each addressing a distinct risk that an insurer intends to provide coverage for.

Key term definitions

Key term definitions are contained throughout a policy wording and aim to facilitate a clear interpretation of its coverage. They are relied upon by all parties to reduce the ambiguity of important terms and are an essential link between a policy’s schedule, wording and endorsements. To aid identification, defined terms are often highlighted by bold, italic, underlined or capitalised text.

Extensions

Extensions broaden a policy’s coverage from its insuring clauses and provide additional protection and/or benefits to the policyholder and any insured person. Many extensions will be automatically included, while some may be optional. An insurer will often use extensions to differentiate its product offering in the marketplace from that of its competitors.

Exclusions

Exclusions aim to eliminate an insurer’s exposure to undesirable risks faced by an organisation and its management. They are applied for many reasons; the risk of certain hazards may be too great for an insurer to bear, or be against the intention of coverage. Many exclusions will be included as standard, while some will be context-specific and applied by endorsement.

Conditions

Conditions outline the various subjectivities that attach to a policy’s coverage. They explain how a policy is to be interpreted and what the obligations are of both an insured and insurer. Conditions will also carefully explain important processes that are essential to a policy’s operation; such as applying for coverage, notifying claims, and maintaining adequate disclosure.

How does coverage operate through time?

D&O insurance for nonprofits has a number of unique features that determines how a policy functions through time.

Claims made policy

A claims made policy requires that a claim be made against an insured and be notified to an insurer during the policy period, for any subsequent loss to be covered. For this reason, it is best to refer to such coverage as claims made and notified, to adequately account for the second condition of notification. Additionally, a policy will require the notification of any circumstance that may reasonably lead to a claim.

Prior acts coverage

The natural language of a claims made policy allows it to provide prior acts coverage. By prior acts, we mean any act or decision that has taken place at some time in the past, even before the commencement of a policy period. Insuring behaviour that occurred prior to the inception of coverage, as long as any subsequent claim is made in a policy period, is a unique aspect of a claims made policy.

Retroactive date

A retroactive date, also known as a prior acts date, can be used to restrict a policy’s prior acts coverage. It is typically listed on the policy schedule and attaches to a retroactive exclusion. A retroactive exclusion will state that no claim will be covered if it arises as a result of an act that occurred prior to the retroactive date. Alternatively, it may state that only acts occurring after a retroactive date are covered.

Pending and prior litigation date

A policy may also include a pending and prior litigation date, which attaches to a pending and prior litigation exclusion. It aims to exclude claims that have commenced in any way prior to the date specified. It is an insurer’s way of excluding claims and circumstances that should have been most appropriately notified to, or covered by, a previous insurer.

How does an organisation acquire coverage?

To acquire coverage, an organisation and its management will need to follow a number of standardised procedures.

Application process

During the application process, an organisation is required to make a submission to a prospective insurer. A submission will typically include the following information:

• A proposal form
• Any supporting documents
• Its most recent financial statements
• An ownership structure diagram

Any financial statements should be audited, or third-party prepared at the very least. An internal accounting report is generally not sufficient because it is difficult to determine its integrity. For larger and more complex organisations, financial statements will be mandatory. For small and medium enterprises, however, there may be some flexibility to this requirement.

Duty of disclosure

An organisation is required to satisfy a duty of disclosure throughout the lifecycle of a policy. In practical terms, this means that it is under a strict duty to deal fully and frankly with an insurer, disclosing any material fact that is relevant to an insurer’s decision making. A failure to do so can result in severe consequences for all those who will rely on coverage.

Underwriting process

An insurer will complete an underwriting process to analyse the risks faced by an organisation and consider its suitability for insurance. This aims to determine an adequate premium for accepting a risk and setting the terms of coverage. Once a quote is issued, it will typically remain valid for 30 days, subject to there being no material change to the underlying information.

Mid-term alterations to coverage

Once a policy in place, its terms will be set for the duration of a policy period. If an organisation would like to make alterations to its coverage mid-term, this will need to be completed by endorsement. Any changes to an organisation’s risk will need to be re-underwritten, and a signed no known loss letter will be required before any alterations are confirmed.

Expiry and replacement

As a policy period approaches expiry, a replacement policy will need to be arranged. In most situations, an organisation will need to complete a new proposal form and provide its most recent financial statements. Sometimes, an express or fast-track replacement process may be available; however, this is typically reserved for smaller and less risky organisations.

Selecting a limit of liability and self-insured retention

When an organisation and its management purchases D&O insurance for nonprofits, there are a couple of important points to consider.

Limit of liability

A limit of liability, also known as a limit of indemnity, is the maximum amount that an insurer is liable to an insured for covered claims in a policy period. It is typically separated into three key components; an any one loss limit, an aggregate limit, and sublimits. Selecting an adequate limit of liability plays an important role in protecting an organisation from large and significant claims.

Self-insured retention

A self-insured retention, also known as a deductible or excess, is the amount of loss that an insured must incur for a covered claim before a policy will respond. Once a self-insured retention has been paid or eroded, an insurer will commence its payments to an insured. Selecting an adequate self-insured retention ensures that a policy is reserved for claims that would otherwise impact an organisation.

How can a changes to an organisation effect its coverage?

Once a policy is in place, there are a number of situations that can effect the coverage of an organisation and its management.

Change in control

If an organisation is subject to a change in control during a policy period it will result in a conversion of coverage. When this occurs, a policy will no longer cover an organisation and its management for their future acts. Rather, only acts that occurred prior to a change in control will be covered. This phenomenon is generally described as coverage being in run off.

Run off insurance

Run off insurance is a term often used to describe the practice of purchasing insurance coverage for an organisation that has incurred a material change to its ownership or corporate structure, such as a change in control or winding up. It attempts to address the long-tail exposure of managerial-related claims, which remain long after individual managers have moved on.

Extended reporting period

An extended reporting period is a type of run off insurance made available to an organisation after a change in control. If an organisation and its management would like to maintain coverage for the notification of claims and circumstances arising from prior acts, an extended reporting period will allow them to do so; provided that it is willing to pay an additional premium for the privilege.

Discovery period

A discovery period may be made available to an organisation in the event that it decides not replace an expiring policy. This can provide an organisation and its management with the ability to notify claims and circumstances that materialise after a policy’s expiry date, but only for acts that occurred prior to the commencement of the discovery period.

How to notify and handle claims

D&O insurance for nonprofits is often purchased with the hope that it will never be required. However, for many organisations, it is only a matter of time before a claim arises requiring notification to an insurer.

Claim notification process

A claim notification describes the process that an organisation and its management must undertake to advise an insurer of a new claim or circumstance. It is an important aspect of protecting management, as it involves identifying any situation that is likely to trigger a policy’s coverage and then reporting this to an insurer according to its relevant procedures.

Who has the duty to defend?

A policy will include a duty to defend provision that outlines which party – an insured or insurer – has the right and obligation to defend an underlying claim. A policy with duty to defend language places this responsibility on an insurer, while non-duty to defend language (also known as duty to indemnify) places this responsibility on an insured.

Claim settlement process

An opportunity for claim settlement may arise throughout the defence of a claim. Claim settlement can describe the process of entering into negotiations with a claimant to bring a matter to conclusion, but also the process of an insurer discharging its obligation to an insured; by arranging payment to an organisation and its management for any covered loss.

Conclusion

D&O insurance for nonprofits is an essential coverage for organisations of all shapes and sizes, however, it is not always well understood. It aims to protect an organisation and its management from claims made against them in the performance of their duties. They may be exposed to significant financial loss without such coverage in place.

Featured image by antenna / CC0

A claims made policy has a range of characteristics that make it stand apart from its somewhat better-understood alternative, a loss occurring policy. At times it can be challenging to differentiate between them, however, failing to understand the differences can have a significant impact on the coverage available for an organisation and its management.

In this article, we will explore the concept of a claims made policy in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Claims made policy: A definition

A claims made policy requires that a claim be made against an insured and be notified to an insurer during a policy period, for any subsequent loss to be covered. For this reason, it is best to refer to such coverage as claims made and notified, to adequately account for the second condition of notification.

A claim represents any grievance that an organisation’s stakeholders may have towards its management. A policy will define what exactly is meant by the term, however, it can be generally described as notice of an actual or intended legal proceeding against an insured, alleging a wrongful act. Any claim will often be received in formal correspondence, so it should be easily recognised.

Common examples of a claim include:

• A letter of demand
• The service of a writ
• An invitation to a proceeding

The key difference between a claims made policy and a policy written on any other basis, is that it relies less on when an actual or alleged act took place, and rather when an insured first becomes aware of any arising claim or intention to claim. Then, provided that a claim is made against an insured and notified to an insurer in a policy period, coverage should attach as intended.

What is a circumstance?

Importantly, it is not only claims that must be notified to an insurer, but also any circumstance that may reasonably lead to a claim. In essence, this aims to capture any grievance which has not yet materialised into a claim but may do so in the future. This is a critical distinction, as it significantly broadens the scope of what should be notified to an insurer.

A circumstance is less obvious than a formal claim and requires a more nuanced understanding. A circumstance can be broadly defined as any knowledge of an incident that could reasonably lead to a claim. This could include information disclosed in a conversation, correspondence between parties, or even the knowledge of an act that could eventually result in a claim.

As an example, consider an organisation that releases a financial report to its stakeholders, who in turn will rely upon its accuracy for making important decisions. If a material error is discovered following its release, it would be prudent to notify an insurer of this instance as a circumstance that may reasonably lead to a claim, at least as a precautionary measure.

The nature of prior acts coverage

The natural language of a claims made policy allows it to provide prior acts coverage. By prior acts, we mean any act or decision that has taken place at some time in the past, even prior to the commencement of a policy period. Insuring behaviour that occurred prior to the inception of coverage is a unique aspect of a claims made policy.

In a liability context, prior acts coverage aims to capture what is commonly referred to as long-tail exposure. Long-tail exposure is the liability that remains long after the act that caused it. In a practical sense, this means that an act could have occurred long ago, but for whatever reason, any subsequent claim may not arise until a date sometime in the future.

Of course, there’s no such thing as a free lunch. The prior acts coverage of a policy only intends to insure to unknown claims and circumstances. Any claim or circumstance that is known prior to the inception of a policy will automatically be excluded. If an insured is already aware of a claim or circumstance and wishes to insure it after the fact, no coverage will be available.

Excluding prior acts with a retroactive date

A retroactive date, also known as a prior acts date, can be used to restrict a policy’s prior acts coverage. A retroactive date is typically listed on a policy schedule and is directly related to a retroactive exclusion. A retroactive exclusion will typically state that no claim will be covered if it arises as a result of an act that occurred prior to the retroactive date.

An insurer will impose a retroactive date if it wishes to exclude the acts of an organisation and its management occurring prior to a particular date. Alternatively, if an insurer has no concern about providing coverage for prior acts, a retroactive date may be set as unlimited; in other words, no retroactive limitation will apply to prior acts.

Sometimes a policy wording may not mention a retroactive date at all, essentially remaining silent on prior acts coverage. In such instances, the absence of a retroactive date may presume unlimited retroactive coverage for prior acts unless restricted by a prior acts exclusion; which attaches to a prior acts date and functions similar to that of a retroactive exclusion.

Continuity and a pending and prior litigation date

A policy may also include a pending and prior litigation date, which is related directly to a pending and prior litigation exclusion. A pending and prior litigation date aims to eliminate coverage for any claim that has, in any way, commenced prior to the date specified. It is an insurer’s way of excluding claims and circumstances that should have been most appropriately notified to a previous insurer.

A pending and prior litigation date is very closely tied to one of a policy’s extensions; continuity of coverage. Continuity of coverage allows a claim notification that should have been notified in a prior policy period, to be accepted late, as long as an organisation has held continuous, uninterrupted coverage with the same insurer over time. Alternatively, it may be attached to a continuity date, listed on a policy schedule

A pending and prior litigation date doesn’t always get as much attention as it should. If an organisation decides to change insurer at the expiry of a policy and during the replacement process, this date will typically be reset to the date in which a new insurer’s coverage commenced. It usually isn’t something that can be negotiated, however, it is an important concept to understand nonetheless.

The purpose of a claims made policy

A claims made policy offers a number of benefits to an organisation, such as the ability to insure prior acts, and automatically cover any new and acquired subsidiaries throughout a policy period. However, from an insurer’s perspective, the long-tail exposure attached to managerial-related claims can place pressure on its capital requirements, making it difficult to reserve for future liabilities.

An insurer’s underwriting appetite is guided by its claims experience of a given policy class, the risk profile of its policyholders, as well as insurance market conditions more broadly. The risks facing an organisation’s management can change quickly and requires constant monitoring. As a result, an insurer’s underwriting strategy can vary significantly from one year to the next.

A claims made policy, importantly, allows an insurer to come on and off risk for a particular policy period with relative ease, except when binding multi-year run off insurance. It allows an insurer to deploy capital into favourable conditions and adjust its strategy as required; protecting itself somewhat from the long-term uncertainty of a more traditional loss occurring policy.

Claims made vs occurring policy: What is the difference?

A claims made policy is often contrasted with its somewhat better-understood alternative, a loss occurring policy. Below, we explore the difference between the two.

Loss occurring policy

A loss occurring policy covers an insured for any loss that arises from an incident occurring in a policy period, no matter when the subsequent claim is made. This basis of coverage does not rely on when an insured first becomes aware of an incident, but rather when an incident actually occurs. It is often observed in general insurance, which is predominately associated with short-tail liability exposure.

Claims made policy

A claims made policy, by comparison, requires that a claim be made against an insured and be notified to an insurer during a policy period, for any subsequent loss to be covered. This basis of coverage relies on when an insured first becomes aware of a claim, rather than when an incident may have occurred. It is often observed in financial lines insurance, which is predominately associated with long-tail liability exposure.

Claims made policy: An example

Now that we have explored the concept of a claims made policy and the various factors that influence coverage, we can tie it all together.

An organisation purchases an insurance policy to protect its management from board of directors liability. The policy period is twelve months, from 31 December last year to 31 December this year. The retroactive date is unlimited, and the pending and prior litigation date is set as 31 December five years ago.

The organisation has been operating for many years in the manufacturing industry. Last year, the managing director made a declaration to a national statutory tax authority on behalf of the organisation. This year, he receives notice that there will be an investigation into an alleged misrepresentation; constituting a breach in directors duties.

The director makes a notification to his insurer. Because the claim is made and notified in the current policy period, is it this year’s policy that will respond. The claim is not excluded by either the retroactive date or pending or prior litigation date. Legal counsel is appointed and defence costs are incurred in the amount of $25,000, however, no claim settlement is made.

Conclusion

A claims made policy has a range of characteristics that make it stand apart from its somewhat better-understood alternative, a loss occurring policy. Failing to understand their differences can have a significant impact on the coverage available for an organisation and its management. However, at times it can be challenging to differentiate between them.

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Prior acts coverage is an interesting and unique feature of a claims made policy. It provides a number of benefits to an organisation and its management, but can cause almost as many issues if not implemented correctly. For this reason, it is essential to be aware of the various factors that influence how a policy’s coverage will respond to a prior act of an insured.

In this article, we will explore the concept of prior acts coverage within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Prior acts coverage: A definition
2 Its relationship to a claims made policy
3 Why any circumstance should also be notified
4 Excluding prior acts with a retroactive date
5 Continuity and a pending and prior litigation date
6 The purpose of prior acts coverage
7 Prior acts coverage: An example
8 Conclusion

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A retroactive date is an essential component of a claims made policy, and has significant implications for the scope of its protection. The prior acts coverage of a policy provides an organisation and its management with many benefits, but failing to understand how and when it can be restricted can leave those relying on coverage unexpectedly exposed.

In this article, we will explore the concept of a retroactive date within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Retroactive date: A definition
2 How is it related to prior acts coverage?
3 Why a retroactive date is unique to a claims made policy
4 Pending and prior litigation date: Similar but different
5 When is a retroactive date applied?
6 Retroactive date vs continuity date: What is the difference?
7 Retroactive date: An example
8 Conclusion

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A pending and prior litigation date is an important aspect of a policy that is often overlooked. It not only represents an organisation’s loyalty to an insurer over time, but may also allow coverage for certain claims that would otherwise be excluded. If unintentionally neglected, however, management are likely to be exposed to significant uninsured risk.

In this article, we will explore the concept of a pending and prior litigation date within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Pending and prior litigation date: A definition
2 Its relationship to a claims made policy
3 Why any circumstance should also be notified
4 The nature of prior acts coverage
5 Excluding prior acts with a retroactive date
6 The purpose of a pending and prior litigation date
7 Pending and prior litigation date vs continuity date: What is the difference?
8 Pending and prior litigation date: An example
9 Conclusion

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A wrongful act describes the types of behaviour an organisation and its management are covered for by insurance. It provides an insight into the allegations that may arise from managerial activities, and how a policy is structured to protect individuals. Importantly, it also highlights the risks that are not likely to be covered, and instead must be insured elsewhere.

In this article, we will explore the concept of a wrongful act within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Wrongful act: A definition
2 What types of acts are considered wrongful?
3 The insured capacity of management
4 Allegations are wrongful too
5 The claim notification process
6 Wrongful act: An example
7 Conclusion

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Extensions provide an organisation and its management with additional coverage over and above a policy’s insuring clauses. They provide a flexible method of updating coverage to address new managerial-related risks and are often used by an insurer to differentiate its product offering from that of its competitors.

In this article, we will explore common extensions within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Extensions: A definition

Extensions provide an organisation and its management with protection over and above a policy’s insuring clauses. They exist because, despite the broad coverage of insuring clauses, it is not possible for them to include all the protection required. Extensions aim to bridge this gap by covering situations that would otherwise not be sufficient to trigger a policy’s response.

In addition to their practical nature, extensions are included by an insurer to strengthen its product offering. They are developed to solve a wide range of problems and are continually being revised to address the changing landscape of managerial-related risks. If an insurer is going to offer “bells and whistles” as part of a policy, these will often be implemented as extensions.

Extensions work together with a policy’s insuring clauses, key term definitions, exclusions, and conditions, to construct its overall coverage. They can operate independently, or in conjunction with other sections of a policy. For example, if an exclusion is used to address a particular hazard, an extension can be used to write-back certain aspects of coverage, such as defence costs.

Advancement of defence costs

Advancement of defence costs compels an insurer to pay for an insured’s defence costs as they are incurred throughout a claim, even if an insurer is yet to arrive at its coverage position. Such an extension requires an insurer to settle an invoice in a defined period of time, typically within thirty to sixty days of its receipt.

Without this coverage, an insured would be required to fund their own defence costs until an insurer could evaluate their loss, determine its validity, and arrange for reimbursement at a later date. This process can be time-consuming, and legal costs can accumulate quickly. The reality is that many organisations would have difficulty funding these costs in the short term.

The advancement of defence costs is conditional on a claim being eventually covered. If at a later date a claim is declined, or part of its claim settlement is subject to cost allocation, an insured will be required to repay any costs advanced. And despite what the end result may be, an insured is obliged to cooperate with an insurer throughout this process.

Retired directors and officers coverage

Retired directors and officers coverage protects individuals for a specific length of time, typically seven years, following their retirement from an organisation. It acts as a form of automatic run off insurance, to ensure that individuals remain protected from any claims that may arise against them in the future, as a result of any wrongful act that occurred prior to their departure.

This type of coverage is a unique feature of a claims made policy, which requires that a claim be made against an insured and be notified to the insurer during the policy period, for any resulting loss to be covered. It aims to address the concerns of retiring individuals, whose coverage would otherwise depend on an organisation continuing to purchase a policy.

Retired and directors and officers coverage allows individuals to make a claim notification to an insurer, even if an organisation no longer purchases insurance coverage on their behalf. This can provide management with peace of mind that they will remain protected, should they retire from their role during a policy period.

Outside directorship coverage

Outside directorship coverage protects the management of an organisation when they also participate in the management of an external nonprofit organisation. This coverage enhancement has evolved out of the common practice of experienced individuals occupying positions of leadership in nonprofit and community-based initiatives, often as volunteers.

When individuals engage in this practice, they are required to satisfy the directors duties of these external roles. Outside directorship coverage aims to provide individuals with an additional layer of protection, over and above any directors indemnification agreement and D&O insurance for nonprofits carried by a nonprofit organisation itself.

Should a nonprofit’s protection mechanisms become exhausted, individuals may be covered by a policy on the condition that an organisation is aware of the outside directorship and that it consents to indemnify such a matter. An insurer may also consider expanding this coverage to include for-profit outside directorships, upon request.

New and acquired subsidiaries coverage

New and acquired subsidiaries coverage protects any subsidiary created or acquired by an organisation during a policy period. This extension ensures that any subsidiary receives the same protection as its parent, providing automatic forward-looking coverage from the date of creation or acquisition – with this date also effectively acting as a quasi retroactive date.

The automatic coverage for a new or acquired subsidiary is often conditional on the relative size and complexity of an entity. Any subsidiary exceeding 10-20% of the parent’s total revenue or assets, or with exposure to high-risk jurisdictions such as the United States and Canada, will generally need to be agreed by an insurer separately and included by endorsement.

The coverage for new and acquired subsidiaries often aligns closely with cessation of subsidiaries coverage, which maintains prior acts coverage for any subsidiary that is wound up or divested during a policy period. As a claims made policy, this coverage is dependent on an organisation continuing to purchase a current policy into the future.

Estates, heirs, and legal representatives coverage

Estates, heirs, and legal representatives coverage protects any legal representative of an insured in the event they are drawn into a covered claim, but only with respect to the insured’s actions, not their own. This benefit also typically extends to include any spouse of an insured, as they are often indirectly exposed to such claims.

When confronted with impending litigation, some individuals consider transferring ownership of their assets to a trusted third party, such as a husband, wife, or legal guardian. By doing so, their assets may be placed out of reach from a claimant’s demands. While this may be a sensible legal strategy, it can also result in a trusted party being implicated in the matter.

Estates, heirs, and legal representatives coverage ensures that any related party who may be dragged into a claim, due to their ownership or control of an insured individual’s assets, is protected. The cover provided by this extension is helpful, but importantly, its scope is limited. It will protect them from the consequences of an insured’s actions, but not their own.

Continuity of coverage

Continuity of coverage allows a claim notification that should have been notified in a prior policy period, to be accepted late, as long as an organisation has held continuous, uninterrupted coverage with the same insurer over time. This benefit is generally included automatically and creates a strong incentive for an organisation to remain loyal to an insurer.

A late notification is one that should have been made in a previous policy period, but for some reason wasn’t. Perhaps something was overlooked, or perhaps it was mistakenly believed that a claim notification was not warranted. In any case, an insurer may be forgiving as long as the late notification was not deliberate and that a duty of disclosure has been satisfied over this time.

Continuity of coverage is often related directly to a continuity date or pending and prior litigation date, listed on a policy schedule. While continuity of coverage is important, it shouldn’t be relied on as a substitute for a prudent claim notification process. If an insurer determines that its position has been prejudiced, there can be serious implications.

Other common extensions

There are a range of common extensions that can assist management while defending a covered claim, and also some that will operate on their own accord.

Bail bond expenses

Bail bond expenses covers the reasonable cost of a bail bondsman or other similar service. This extension is not likely to cover the cost of the bond, just the bond service provider.

Public relations expenses

Public relations expenses covers the reasonable costs of engaging a communications consultant to mitigate the negative effects of publicity.

Deprivation of assets

Deprivation of asset expenses includes an allowance for certain personal expenses when individuals are deprived of access to their personal assets. Common expenses include schooling, housing, utilities, and personal insurance.

Extradition expenses

Extradition expenses include the reasonable costs of preparing a defence for an extradition proceeding, bail bond process, and subsequent trial. It may also include the costs of seeking expert advice from a crisis counsellor and accountant.

Court attendance expenses

Court attendance expenses usually consist of a daily fee paid to individuals, when they are required to appear before a court of law or other formal hearing.

Discovery period

A discovery period may be made available to an organisation in the event that it does not intend to replace an expiring policy. This will typically consist of either an automatic discovery period or a paid discovery period.

How do extensions interact with other policy sections?

Discussing what is covered by extensions can be tricky because every policy is slightly different, not only with respect to what is covered but how it is covered. Many policies share a similar format, including insuring clauses, extensions, exclusions, and conditions. However, the way in which coverage is constructed will vary from one insurer to the next.

Many aspects of what a policy covers will be captured by the definition of loss, i.e. what types of loss an insurer will pay for as a result of a covered claim. Often this definition will be quite broad to cover much of what is expected, such as defence costs etc. If an insurer would like to expand its coverage further, this will often be done with extensions, conditions, and endorsements.

The key to understanding a policy’s coverage is to keep an open mind as to how its protection can be crafted. In one policy, a particular coverage will be over here, while in another it will be over there. A policy will need to be interpreted on its own merits. There are few shortcuts, however, a general overview of what to expect can certainly be helpful.

Extensions: An example

Now that we have explored common extensions and the various factors that influence coverage, we can tie it all together.

An organisation purchases an insurance policy to protect its management from board of directors liability. The policy period is twelve months, from 31 December last year to 31 December this year. The policy includes a retired directors and officers coverage extension, providing seven years of automatic run off insurance to individuals post-retirement.

The organisation operates in the shipping industry. During the policy period, a director decides to retire after a long career. At the end of the policy period, the organisation decides not to replace its expiring policy and does not proceed with a discovery period. Two years later, the retired director receives notice of a pending claim, alleging a breach in duties during his final year of employment.

The director speaks with his broker, who in turn makes a claim notification to the insurer who was on-risk during the policy period in which he retired. The organisation cannot be contacted (for indemnification), and the notification is subsequently accepted by the insurer under the relevant extension. Legal counsel is appointed and defence costs are incurred in the amount of $50,000.

Conclusion

Extensions provide an organisation and its management with additional coverage over and above a policy’s insuring clauses. They are often used by an insurer to differentiate its product offering from that of its competitors and provide a flexible method of updating coverage to address new managerial-related risks.

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Exclusions can have serious implications for an organisation and its management, as they eliminate coverage for certain types of claims. They are applied for a variety of reasons, but by understanding the rationale for their inclusion, the consequences of exclusions can be better prepared for and often mitigated.

In this article, we will explore the concept of exclusions in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Exclusions: A definition
2 Common standard exclusions
3 Common context-specific exclusions
4 When do exclusions come into play?
5 The imputation and severability of exclusions
6 Exclusions: An example
7 Conclusion

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A policy’s conditions play an important role in determining the coverage of an organisation and its management. They are located within a dedicated section of a policy but are also inherent throughout its schedule, wording and endorsements. In the event of a claim, conditions may be open to interpretation, which can also mark the beginning of a dispute.

In this article, we will explore common conditions within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Conditions: A definition
2 A policy’s core operating conditions
3 Geographical conditions to coverage
4 Key conditions throughout a policy’s lifecycle
5 Conditions of the claims handling process
6 Navigating conflict: Policy interpretation and dispute resolution
7 Conditions: An example
8 Conclusion

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A limit of liability is a central component of a policy and an important consideration for an organisation and its management. Having enough coverage when it’s required can mean the difference between effective protection and potential ruin. Despite its significance, the process of selecting an adequate limit of liability remains part art, part science.

In this article, we will explore the concept of a limit of liability within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Limit of liability: A definition
2 Components of a limit of liability
3 The challenges of a shared limit of liability
4 Selecting a limit of liability
5 How much coverage is enough?
6 Constructing a large limit of liability
7 How do defence costs interact with the limit of liability?
8 Policy lifecycle and the limit of liability
9 Emergency provision: An additional limit of liability
10 Limit of liability: An example
11 Conclusion

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A self-insured retention is an important and often misunderstood component of a policy. An organisation and an insurer both have an interest that it is set in an appropriate amount so that coverage can function as intended. If implemented correctly, it will encourage them to participate in what is a mutually beneficial relationship.

In this article, we will explore the concept of a self-insured retention within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Self-insured retention: A definition
2 When does a self-insured retention apply?
3 The purpose of a self-insured retention
4 Applying a self-insured retention to claims
5 Selecting a self-insured retention
6 What type of self-insured retention can be expected?
7 How do defence costs interact with a self-insured retention?
8 Benefits of a correctly implemented self-insured retention
9 Self-insured retention: An example
10 Conclusion

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An application process is undertaken by an organisation and its management to establish a policy for the year ahead. While the process is somewhat similar to that of other insurance classes, there are important differences. By understanding in advance what is involved, not only can any frustration be minimised, but also the best possible terms be achieved.

In this article, we will explore the application process within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Application process: A definition
2 The components of a submission
3 Satisfying a duty of disclosure
4 The role of an application in the policy lifecycle
5 Who can represent an organisation in insurance matters?
6 Imputation and severability of knowledge
7 The importance of checking policy documents
8 Application process: An example
9 Conclusion

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A duty of disclosure is at the foundation of what is required to establish a policy. An organisation and its management must fulfil this requirement to secure the coverage they seek from an insurer. Any subsequent agreement between the two parties will only be as strong as the trust imputed by satisfying this mutual contractual obligation.

In this article, we will explore the duty of disclosure within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Duty of disclosure: A definition
2 When must a duty of disclosure be satisfied?
3 The importance of continuous disclosure
4 What are the consequences of non-disclosure and misrepresentation?
5 Who can represent an organisation in insurance matters?
6 Imputation and severability of knowledge
7 To disclose or not to disclose, that is the question
8 Duty of disclosure: An example
9 Conclusion

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An underwriting process aims to understand the risks faced by an organisation and its management. It is undertaken by an insurer to help it decide whether coverage should be offered, and if so, on what terms. Best described as part art, part science, it is a process that is essential for establishing an insurance contract that benefits all parties involved.

In this article, we will explore the underwriting process within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Underwriting process: A definition
2 The role of underwriting in a policy’s lifecycle
3 What are the common underwriting considerations?
4 Assessing an organisation’s risk control environment
5 How are the terms of a policy crafted?
6 How are optional coverages considered?
7 Accounting for recent claims and circumstances
8 How is a premium calculated?
9 Underwriting process: An example
10 Conclusion

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A no known loss letter is an important but not always well-understood document. It aims to help an organisation and its management satisfy its duty of disclosure. This obligation must be fulfilled while negotiating the terms of policy at any stage of its lifecycle. Without one, an insurer is not likely to agree to any requested changes.

In this article, we will explore the concept of a no known loss letter within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 No known loss letter: A definition
2 The role of a no known loss letter in the policy lifecycle
3 What is the purpose of a no known loss letter?
4 Who can sign a no known loss letter?
5 Imputation and severability of knowledge
6 A no known loss letter sample
7 No known loss letter: An example
8 Conclusion

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When an organisation is subject to a change in control, there are significant consequences for its insurance coverage. There are important decisions to be made, not only by an organisation’s existing management but also by its future leaders. If they fail to adequately prepare in advance, everyone involved may be exposed to unnecessary risk.

In this article, we will explore the concept of change in control in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Change in control: A definition
2 Its relationship to a claims made policy
3 The significance of prior acts coverage
4 Why is a change in control clause necessary?
5 How a policy’s conversion effects coverage
6 Why should an extended reporting period be considered?
7 How to establish new coverage for future acts
8 Change in control: An example
9 Conclusion

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Run off insurance is an important consideration for an organisation and its management when considering long-tail exposures. A claims made policy requires that a current policy be in place if any claim is to be accepted by an insurer. Without prudent deliberation following a change in control or policy non-replacement, individuals may be unnecessarily at risk.

In this article, we will explore the concept of run off insurance in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Run off insurance: A definition
2 Relationship to a claims made policy
3 The significance of prior acts coverage
4 The consequences of a change in control
5 Why does a policy convert into run off?
6 How a policy’s conversion affects coverage
7 What is an extended reporting period?
8 Why a discovery period is a solution to non-replacement
9 Run off insurance: An example
10 Conclusion

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An extended reporting period is an important consideration for an organisation following a material change to its ownership or corporate structure. Merger and acquisition activity can certainly be exciting, however, it will also have an effect on a policy’s coverage. Without prudent deliberation, management can be exposed to claims arising well into the future.

In this article, we will explore the concept of an extended reporting period in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Extended reporting period: A definition
2 Its relationship to a claims made policy
3 The consequences of prior acts coverage
4 What is a change in control?
5 Why does a policy convert into run off?
6 How a policy’s conversion affects coverage
7 How is an extended reporting period implemented?
8 Calculating the price of an extended reporting period
9 Extended reporting period: An example
10 Conclusion

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A discovery period is an important consideration when an organisation does not, or cannot, replace a policy at expiry. Without a current policy in place, an organisation and its management may be exposed to claims without support. In such situations, a discovery period can allow the notification of claims and circumstances for a certain period of time.

In this article, we will explore the concept of a discovery period in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Discovery period: A definition
2 Its relationship to a claims made policy
3 The consequences of prior acts coverage
4 The importance of maintaining a current policy
5 Types of discovery period in the event of non-replacement
6 Discovery period: An example
7 Conclusion

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The claim notification process is an important aspect of securing protection for an organisation and its management. An insurance policy is often purchased with the hope that its coverage will never need to be relied upon. However, for many organisations, it is likely to be only a matter of time before a claim arises requiring notification to an insurer.

In this article, we will explore the claim notification process in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Claim notification: A definition
2 The significance of a claims made policy
3 Why should any circumstance also be notified?
4 How to make a claim notification
5 Coordinating a claim response
6 What is a reservation of rights letter?
7 How to navigate a late notification
8 The claim settlement process
9 Claim notification: An example
10 Conclusion

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A policy’s language surrounding the duty to defend will have a significant influence on how a claim will be handled. It is an important consideration for an organisation and its management, as it will determine how much control they have over their own defence. For some, exerting influence over this process will be a high priority, while for others less so.

In this article, we will explore the duty to defend within the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Duty to defend: A definition
2 How do managerial risks arise?
3 How is a claim addressed by its subject?
4 Providing an insurer with a claim notification
5 Coordinating a claim response
6 Conflicts of interest and the duty to defend
7 The claims settlement process
8 When will an insurer assume the duty to defend?
9 Duty to defend: An example
10 Conclusion

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Claim settlement is the reason why an organisation and its management ultimately purchases insurance. It describes the process that is required to bring a claim to its conclusion. Many of the costs incurred along the way are likely to be covered, however, some may not. In either situation, it is helpful to understand what can be expected.

In this article, we will explore the claim settlement process in the context of the following coverages:

• Directors and officers liability insurance
• Employment practices liability insurance
• Management liability insurance
• D&O insurance for nonprofits

You may also find that similar concepts apply to a broad range of financial lines insurances, such as professional indemnity insurance, cyber insurance, and even crime insurance to a certain extent. Keep in mind, however, that each policy is strictly interpreted according to its own terms and conditions.

Contents
1 Claim settlement: A definition
2 Making a claim notification
3 Coordinating a claim response
4 Navigating the claim settlement process
5 How is an insured’s loss settled by an insurer?
6 Sharing the costs of a claim
7 Prioritising payments and recoveries
8 Under what circumstances will an insurer reserve its rights?
9 Dealing with claim declinature and dispute resolution
10 Claim settlement: An example
11 Conclusion

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Claim examples are helpful for understanding the types of issues faced by an organisation and its management. They provide insight into the general nature of claims, as well as the financial consequences arising from their defence and settlement. It is also is helpful for understanding how an insured and insurer can seek a resolution that is mutually beneficial.

In this article, we will explore a number of claim examples for directors and officers liability insurance and other related coverages.

Contents
1 Claim examples – Directors and officers liability insurance
2 Claim examples – Employment practices liability insurance
3 Claim examples – Management liability insurance
4 Claim examples – D&O insurance for nonprofits
5 Claim examples – Side A coverage
6 Claim examples – Side C coverage
7 Conclusion

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Coming soon.

The renewal of a directors and officers liability insurance policy is an interesting and challenging process. It requires working closely with an organisation and its management to secure coverage for another year. There are many insurers that can offer such coverage, but market conditions are often uncertain.

In this post, we explore seventeen helpful tips for achieving a better renewal outcome.

Start the process early

When it comes to renewing a policy, it is important to start early. In this process, time is precious. When you have it on your side, you have options. When you don’t, panic can creep in quickly. No one likes being caught out by the unexpected, so getting an early start is the easiest way to get ahead. 

This obviously means that you need to formulate a plan in advance. Planning takes time but it is helpful for mitigating unforeseen challenges. With a bit of luck, your renewal will be smooth sailing. But as anyone who has been in this industry for long enough can tell you, anything that can go wrong often does.

By commencing the renewal process a few months ahead of expiry, you will improve your chances of obtaining the best terms available. For package policies such as management liability insurance and D&O insurance for nonprofits, two months should be enough. If you are managing a larger programme, three months is probably better.

Set clear milestones

Much of what you do as an insurance professional is set expectations. Not only are you considered the subject matter expert, but also the driver of the process. Your client will listen to what you say, but you have to provide clear instructions. It’s your job to chart the waters ahead and make them comfortable with what comes next.

Let your client know what documents you need to be completed and when you need them. Also, let your client know when they can expect to hear from you, so the timeframes are clear from the beginning. Once deadlines are set, implement a follow-up procedure to ensure everything runs on time.

Sometimes, you may need to whip your client into gear if they are not coming back to you. It’s not unusual to have to send a reminder for the return of important documents, such as a no known loss letter. Do it kindly, and let them know that these deadlines aren’t just for your benefit – their coverage relies on it.

Review limits and retentions

Speak to your client about their existing coverage and evaluate its suitability moving forward. Not all organisations take the time to review what they have in place, and even if they do, their operations can change quickly. This means that it is a conversation that should be raised annually.

A few questions to consider:

• Is the limit of liability adequate for defending multiple individuals?
• Is the limit of liability adequate for defending multiple claims?
• Can the self-insured retention be comfortably afforded?
• Can the self-insured retention be comfortably afforded in the event of multiple claims?

In addition to reviewing the limit of liability and self-insured retention, it may be helpful to review the policy structure more broadly. For example, many large organisations consider improving coverage for management by purchasing stand-alone Side A coverage in excess of their primary policy.

Get organised in advance

Being organised is the key to a successful renewal. In the lead-up to expiry, the holding insurer’s proposal form should be completed as part of the application process. Additionally, a range of supporting documents should be included for an underwriter’s consideration.

Common supporting documents include:

• Audited financial statements
• Corporate structure diagram
• Employee handbooks
• Leadership profiles
• Constitutional documents
• Corporate communication policies

The more relevant information you can provide to an insurer, the better. These details will be carefully analysed throughout the underwriting process, so it’s worth taking care. By supplying clear and concise information, you can present an organisation’s risk profile in the best possible light.

Disclose prior losses

A claims made policy requires that all prior losses be disclosed in the proposal form. That way, not only are underwriters completely aware of an organisation’s loss history but also it is clear to management that each of these claims and circumstances will be excluded from the new policy moving forward. 

To minimise the possibility of not satisfying a duty of disclosure, the board of directors should be surveyed prior to renewal, along with any other senior officers. When disclosing past losses, the description should include what corrective action has been taken to ensure that similar incidents are less likely to occur in the future.

Finally, it’s important not to assume that underwriting and claim departments are communicating with each other. Insurance companies are busy environments, and information is occasionally overlooked. Should a non-disclosure occur during renewal, it will be your client that suffers the consequences.

Devise a remarketing strategy

When developing a renewal strategy, sourcing alternative quotes should be thought about in a big picture context. An organisation’s relationship with its insurer plays an important role in protecting its management from any wrongful act. Therefore, the choice of insurer should be considered with long-term goals in mind.

There is typically little benefit of changing insurers just to save a few dollars. A cheap premium is all well and good, but there is often a trade-off involved. As the old adage goes; if something sounds goods to be true, it probably is. Any remarketing activities should be undertaken with purpose.

While it is important that your client pays a competitive premium, continuity and the quality of coverage should be of utmost importance. Changing insurers is likely to affect the pending and prior litigation date. With this in mind, remarket carefully or you may discourage insurers to put forward their best terms.

Deal with the right people

The insurance industry is built on relationships. Brokers and underwriters develop trust over years, and it can have a profound effect on the terms available.  Sometimes who you know is just as important as your ability. Make sure you are dealing with people who can help you obtain the best possible terms for your client.

If you are a broker, does your servicing underwriter have the necessary authority to get the terms you need? If not, it might be worthwhile asking the matter to be escalated to a senior underwriter. This goes with speaking with clients as well. Are you speaking with a decision-maker? If not, it might be difficult to get the deal done.

If you are on the client-side, does your broker have the experience to understand the level of complexity faced by your organisation? If not, you might need a more experienced person to support them. The right kind of person should be able to provide you with a range of renewal options, as well as relevant claim examples.

Pick up the phone

Email provides a quick and effective way of doing business. But the ease with which email is used also means that it can quickly become impersonal. To offset this, try to pick up the telephone from time to time and speak with your clients and underwriters. It will strengthen your relationships and improve your renewal results.

From a broker and client-side perspective, speaking with your counter-parties is one of the simplest things you can do to break down barriers and open up lines of communication. For example, it may be easier to explain the difference between an extended reporting period and discovery period over the phone, rather than by email.

Raising discussions with underwriters about their risk appetite or coverage offering is a win-win for both parties. You will arrive at a better outcome for your clients while at the same time growing your book of business. It is also likely to minimise any miscommunication that can easily occur when negotiating terms.

Respond promptly to queries

In the renewal process, a comprehensive submission will get you a long way but it’s inevitable that an underwriter will come back with queries. A proposal form and supplementary documents can only tell them so much, so they will sift through this information and highlight any curiosity they have before offering terms.

Common queries include:

• Additional information on the organisation’s business activities
• Management experience of directors and officers
• Clarification of entity ownership
• Clarification of employment structure (including the use of subcontractors)
• Clarification of an organisation’s revenue, assets, and liabilities
• The nature and amount of any past claim settlement

By responding promptly to these queries, it displays attentiveness to the underwriter’s request and maintains a degree of quoting momentum. This will help to improve the chances of receiving attractive terms within your required timeframe, so these can be presented to your client well in advance of the due date.

Remember that terms are negotiable

Once a policy has been in place for a few years, it is easy to forget that the terms of coverage are negotiable each and every renewal. In the marketplace, standard coverages evolve and terms that were once competitive, with respect to coverage or pricing, can gradually fall behind the offerings of other insurers.

During the renewal process, it is good practice to review the coverages in place and compare this to what is available in the current environment. Even without going to the trouble of seeking alternative quotations, upgrades and improvements can be requested from the holding insurer in good faith.

Underwriters are open to having these types of conversations and are often willing to update policies if asked nicely. Examples of such changes include increased sublimits, discounted premiums, or where appropriate, changes to the retroactive date in softer market conditions.

Explore risk management ideas

As a diligent and attentive advisor, you can set yourself apart by exploring risk management ideas in the broader sense. Instead of just advising on board of directors liability, expand the scope of your role and open up discussions about risk across the entire spectrum of an organisation’s operations.

This is particularly relevant for many small and medium enterprises, who may not have a formal directors indemnification agreement or be aware of industry best practices. Owner-operators are often busy working in their businesses and can always use an extra set of eyes to point out where risk management can be improved.

You don’t necessarily need to have all the answers, just an interest in developing your client’s business. It starts by asking the right questions and listening to the response. If points are raised where further improvement can be made and you are unable to assist directly, refer them to someone who can.

Educate your client

Directors and officers liability insurance can be complex. For your clients, who are busy people in their own right, the intricacies of directors duties may not always be front of mind. Take a moment to help educate them about the risks they face and how their insurance programme is designed to protect them.

Important topics include:

• A policy’s insuring clauses, extensions, exclusions, and conditions
• The process involved in making a claim notification
• Common claims, by oganisation size and industry sector
• How a change in control can affect coverage, and the need for run off insurance

By opening up a discussion and listening to your client’s concerns, you will be better equipped to understand their challenges. Additionally, a better-educated client will be in a stronger position to identify their own risk exposures and work together with you to develop an adequate solution.

Double-check documents

Throughout the renewal process, it is essential to double-check documents. Everything that you send and receive, from emails to quotations, and especially the schedule and wording, should be carefully inspected. That way you and your client are getting what you ask for, and avoid any chance of future embarrassment.

Because these types of insurances are technically non-renewable (and instead must be replaced), holding insurers will often revise their terms from one year to the next. To ensure you don’t get caught out, make sure you double-check the terms issued. If at any stage you spot something out of the ordinary, flag it for discussion.

Underwriters should be available to clarify the intent of a particular clause or endorsement. For example, which party – the insurer or insured – has the duty to defend an underlying claim? It can be helpful to have a broader understanding of coverage history to ensure that any documents issued are an accurate reflection of the agreed terms.

Gently upsell products and services

As an advisor, the reality is that sometimes you need to sell – sell yourself, your firm’s services, and an insurer’s products. This may seem like a bit of a drag at first, but it doesn’t need to be. Because with the right attitude, friendly customer service and competent product advisory are often all it takes to grow your book of business.

Start with providing alternative options at renewal – such as an increased limit of liability, variations of the self-insured retention, and other coverage enhancements. Next, consider using the information already contained within the proposal form to provide indicative quotations on policy classes that are not yet in place.

Additional coverages for consideration can include employment practices liability insurance and Side C coverage, to name a few. While insurers may not necessarily be prepared to provide binding quotes, they should be able to offer an indication of what limits are available and at what price, subject to the receipt of further information.

Put conversations in writing

When advising a client, it is important to recognise that they may not always take up your suggestions. Try to be patient and don’t take it personally, but be sure to document the conversation. Clients are often well-intended, however, it’s not unusual for the details of a discussion to fade long after its occurrence.

It is only human for the memory of a conversation to change over time. By documenting its details immediately after its conclusion, you can protect all parties by recording an accurate representation. These notes should outline what was discussed and when, so it can be referred to again in the future if need be.

From a professional standpoint, taking a written record after a meeting or phone call is very important. It is one of the simplest things that can be done to reduce your own risk of liability. In the event of a dispute with a client (often after an unexpected loss), many advisors have relied on such records to justify their account of what was actually discussed.

Time of year matters (for renewal)

When arranging cover for the next policy period, think about what time of year is best to have the programme renew. Most larger organisations already have their various policies renew together. But what should also be considered is at what time of year this occurs – as it can have a material effect on the terms received.

Insurance markets become crowded at certain periods of the year, particularly around the end of each quarter, calendar year, and financial year. During these times, underwriters’ inboxes fill with quotation requests from brokers. It also marks the time that many insurers renew their own reinsurance treaties – so things are especially busy.

By deciding to renew a programme away from these peak times, insurers are more likely to be available to quote. Additionally, less activity in the market can lead to increased competition to win business. This means that it might be possible to acquire more attractive terms than would otherwise be possible.

Provide clear payment instructions

Once a renewal is bound and closed for another year, it is important to ensure that payment is received in a timely manner. Many organisations, particularly those with larger programmes, may not have the budget to pay their premium immediately. In these instances, try to have an alternative payment method at hand.

This is particularly important for any policy that includes prior acts coverage, which may be cancelled by an insurer if left unpaid, with little hope for backdating its reinstatement. Instead of leaving things to chance, consider offering your client access to a premium funding facility; which is available from many banking institutions.

Premium funding is an effective way of staggering insurance payments throughout the policy period. The financier, who effectively pays the premium up-front, does so for an interest payment on top of each monthly installment. For many organisations, this additional cost is worthwhile for the flexibility it provides.

Conclusion

The renewal of a directors and officers liability insurance policy is an interesting and challenging process. Securing coverage for another year is essential for protecting an organisation and its management, but market conditions are often uncertain. Hopefully, this post has provided you with a number of helpful tips for achieving a better renewal outcome.

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