Grenzen der Auskunfts- und Belegpflicht in der D&O Versicherung

A large number of claims brought under German D&O insurance regard Insured vs. Insured cases, i.e. claims brought by the company against its own directors and officers (Executive Directors, Supervisory Board Members etc.). After notification of and examination by the insurer of such an insured event, the insurer will in most cases opt to grant the insured defence cover in order to fight off the claim. The insurer hereby expresses that it regards the claim of the company (= its own policyholder) against the board member (= the insured) to be without merit. This situation—where the policyholder is at the same time the damaged party—though typical under (German) D&O-policies is uncommon for liability insurance cover in general. It, thus, raises the issue as to the limits of the policyholder’s duty to disclose information. The scope of said obligation is not unlimited. It rather has to be ascertained pursuant to Sect. 31 VVG (German Insurance Contract Act), by taking into account the policyholder’s interests in commercial and industrial confidentiality and the burden of poof as provided by Sect. 93 para. 2 AktG (German Stock Companies Act). In case legal proceedings ensue between the company and the insured, and, as a consequence, the insurer exercises its obligation to conduct the case for the insured or the insurer joins the lawsuit on the side of the insured (by declaring a Third Party Notice Streiverkündung]), the insurer clearly becomes an adversary to the company. Under such circumstances, the company is irrevocably released from its duty to disclose information.