Since its inception about fifty years ago, D&O insurance has evolved into a family of products responding differently to the needs of publicly traded companies, privately held businesses and not-for-profit entities and their respective board members, officers and trustees.
Directors’ & Officers’ Liability, Executive Liability or Management Liability insurance are essentially interchangeable terms. However, insuring agreements, definitions, exclusions and coverage options vary materially depending upon the type of policyholder being insured and the insurer underwriting the risk. Executive Liability insurance, once considered a necessity solely for publicly traded companies, particularly due to their exposure to shareholder litigation, has become recognized as an essential part of a risk transfer program for privately held companies and not-for-profit organizations.
Optimization of protection is a common goal shared by all types of organizations. In our opinion, the best way to achieve that objective is through engagement of highly experienced insurance, legal and financial advisors who work collaboratively with management to continually assess and treat these specialized enterprise risk exposures.
Private Company D&O Exposures
In 2005, Chubb Insurance Group, one of the largest underwriters of D&O insurance, conducted a survey of the D&O insurance purchasing trends of 450 private companies. A significant percentage of respondents gave the following reasons for not purchasing D&O insurance:
• did not see the need for D&O insurance,
• their D&O liability risk was low,
• thought D&O risk is covered under other liability policies
The companies responding as non-purchasers of D&O insurance experienced at least one D&O claim in the five years preceding the survey. Results showed that private companies with 250 or more employees, were the subject of D&O litigation during the preceding five years and 20% of companies with 25 to 49 employees, experienced a D&O claim.
The survey revealed 43% of D&O litigation was brought by customers, 29% from regulatory agencies, and 11% from non-publicly traded equity securities holders. The average loss reported by the private companies was $380,000. Companies with D&O insurance experienced an average loss of $129,000. Companies without D&O insurance experienced an average loss of $480,000.
Some Common Examples of Private Company D&O Claims
• Major shareholder led buy-outs of minority shareholders alleging misrepresentations of the company’s fair market value
• purchaser of a company or its assets alleging insurancegui.com
• sale of company assets to entities controlled by the majority shareholder
• creditors’ committee or bankruptcy trustee claims
• private equity investors and lenders’ claims
• vendors alleging misrepresentation in connection with an extension of credit
• consumer protection and privacy claims
Private Company D&O Policy Considerations
Executive Liability insurance policies for privately held companies typically provide a combination or package of coverage that includes, but may not be limited to: Directors’ & Officers’ Liability, Employment Practices Liability, ERISA Fiduciary Liability and Commercial Crime/ Fidelity insurance.