Directors' and officers' insurance, also known as D&O insurance, is a liability policy that provides financial protection to the company's executives and board members against allegations of wrongful acts. It's important to understand that company directors have a personal liability when undertaking their statutory and fiduciary duties, such as those under the Companies Act 2006. Directors' and officers' insurance is commonly purchased by companies of all sizes to protect the senior individuals against compensation claims and regulatory investigations.
Not everyone appreciates directors and non-executive directors can be held personally liable while acting on behalf of the company. Regulation and legislation exist to make individuals responsible for their actions on behalf of companies. If these laws did not exist, then company directors could act recklessly in the pursuit of profits without any consequence. Read more
Director and officers liability coverage can provide protection against claims of breaches of trust, breaches of fiduciary duty, neglect, misrepresentation, misstatements, wrongful acts, and errors or omissions. A policy can therefore reduce the financial risks associated with taking up leadership positions, by offering insurance to safeguard the personal assets of management.
Directors' and officers liability is typically offered under a management liability insurance policy for small to medium sized corporations. Under these policies there may be the opportunity to include cover for corporate legal liability, employment practicies liability insurance, and employee theft cover.
Protects the company from claims - this could be anything from corporate manslaughter, copyright infringement or other intellectual property disputes.
Provides protection from claims arising from a range wide range of employment disputes, cover will extend to the company where most disputes arise.
Anyone that’s makes decisions on behalf of a company can be held accountable under any number of statute laws and regulations. Where individuals have acted in good faith and complied with their responsibilities, they can rely upon the corporate veil. This is a separation when a company is incorporated between the company, and its directors and shareholders for its debts and liabilities. However, if a court finds against an individual or a board for an alleged wrongful act, or neglect of their duties, they have the powers to make judgements against their personal assets.
Claims made against individual directors or the company can originate from a number of different sources, these can include: regulators, shareholders, customers, competitors, employees, administrators, and suppliers. The most common type of directors' and officers' insurance risk occurs from: 1) breach of law or regulation; 2) shareholder claims; 3) corporate manslaughter; 4) creditor claims; 5) breaches of fiduciary duties; 6) competitor claims; and 7) employment claims.
Directors' and officers' insurance can start from £345 annually for a £1 million limit for a small private company. For larger businesses, the premium costs can increase significantly depending upon which sector you work and importantly your financial stability. Insurers will calculate your insurance premiums on several factors, including: the company’s industry, financial solvency, company's revenue, total assets, whether the company has any publicly traded securities, and the company’s claims history.
Different industry sectors are more prone to claims. Very high D&O risk sectors include: biotechnology, telecommunications, oil exploration and professional sports clubs.
Do you have sufficient capital to meet your ongoing financial obligations. Insolvency represents a high risk, with numerous parties potentially seeking to recover losses.
A successful trading history is preferred. However, this is not always the case, and a load factor will be applied to start-up businesses when applying for cover.
Typically, all directors and officers of a company and its subsidiaries are covered under a D&O liability policy, whether current, future and past. The definition of Insured Person will also typically extend to employees whilst acting in a managerial capacity. Director's insurance is also typically afforded to any lawful spouse, estate, heirs, if named as co-defendant in circumstances allegations are made against a person who is deceased, insolvent, or bankrupt.
An error on the part of one board member can have financial consequences for the others, even though they had no knowledge of the wrongdoing. Director's insurance can protect against negligent failure to prevent, or neglect - which means there is no requirement for knowledge, merely the failure for the individual to act.
Question. Did the business make a profit and have a positive net worth in the last reporting period?
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If the business didn't make a profit and have a positive net worth in the last reporting period. Insurers will require you to complete a proposal form and submit either a monthly cash flow forecast for the next 12 months, or if you are an established business, a copy of your most recent management accounts (balance sheet and profit & loss) for the group.
Please download the above proposal form and follow the instructions. By clicking the Submit button and this will create and email to send the proposal form to ourselves, please include the relevant financial information detailed above in the email.
We work with a wide range of D&O insurance companies who specialise in financial lines to secure the necessary cover for our clients. All the insurance providers we work are governed by the Prudential Regulation Authority with have strong financial ratings (A) from AM Best and a good record of paying valid claims.
Founders of startups will often take risks in order for to be successful, unfortunately this can lead to disputes with regulators, shareholders, customers, competitors, employees, and suppliers. If you raise money, it can be a common request by investors to buy the cover. Shareholders may later seek to claim against the policy for several reasons, including misrepresentation, breaches of fiduciary duty, breaches of law, or maleficence.
If you have not submitted a monthly cash flow forecast for the first 12 months and a pitch deck or business plan, insurers will typically apply an insolvency exclusion. Which removes a significant amount of cover for stakeholder claims if the business has failed.
Small business are certainly not immune legal disputes. In fact, a lengthy legal battle can do more damage to a small business because they will be highly dependent upon a small number of individuals. Without established legal and HR teams, defending a claim or dealing with a regulator’s investigation can be complicated and time consuming. Arranging cover is not a legal requirement, however a policy can help mitigate the risk of expensive legal fees, court damages, fines and penalties, that you could be held personally liable. A policy can provide valuable access to legal support and specialist services to assist mitigate the damage of any allegation.
Although policies will typically provide cover for breaches of fiduciary duty, there will typically be an exclusion that remove any cover for taking up positions on an employee pension scheme. Pension trustee liability insurance will need to be considered seperately.
A company may indemnify its directors in respect of legal proceedings under a written agreement, however most companies will not. If there is an agreement in place, there will be circumstances which the company will be unable or permitted to meet its obligations under this agreement. For example, the insolvency of the company or restricted under law.
Directors' and officers' insurance policies have been designed to respond to the different circumstances, offering to either pay on behalf of the director (called Side A); or reimburse the company after it has indemnified the director (called Side B). It is worth noting that most policies will not maintain a deductible for Side A, however, will maintain a deductible for Side B.
if you are a public company with securities listed on an exchange, cover for security claims will be provided under Side C. This coverage section will pay on behalf of the company claims made for shareholder losses.
The D&O policy limit of liability is shared amongst the directors and officers who will receive the same treatment in the event of a claim. Your policy limits will operate either on an: Aggregate basis, which means the amount insured under the policy is a maximum for the entire policy period, no matter how many claims are made; or Any One Claim basis, which means the amount insured under the policy applies to each and every claim (or importantly a series of claims arising from any single event).
Some insurers will offer reinstatements of limits on an aggregate basis, which means if the limit of liability has been eroded by a claim, the limit of liability will then be reinstated and made available for unrelated D&O insurance claims.
If you operate a non-profit organisation or charity, please refer to trustee indemnity insurance. The cover is similar, however some insured person definitions maybe different to ensure that trustees and the appropriate persons which manage the non-profit are protected.
If you are considering issuing a public prospectus to raise capital you will need to separately consider IPO insurance. Talk to one of our D&O experts to find out more.
The amount of cover you decide to purchase will depend on your perception of the exposure and how much you are prepared to spend to mitigate the risk. We recommend you consider more than one option to appreciate the cost to increase your cover limit. It is also worth considering that defence costs on average amount to 65% of the total cost of claims. Please note you should consider your individual circumstances and note the limits above may not be sufficient to cover your defense costs and damages.
We can arrange cover to protect the boards of residential associations. Please give us a call to discuss your needs on 0345 625 0711.
An office policy can provide a range of property and liability protections that can be tailored to numerous workplaces that do not undertake manual activities. Unexpected events such as damage to your equipment in the event of a fire, flood or theft, can all be covered by a policy designed for your office working.
We can make enquires on your behalf, but we will not be able to obtain any quotations before your business has been registered on Companies House - either as a limited company or as a limited liability partnership.
Non-executive directors can be held liable for their actions in the same way individuals that manage the day to day running of the business. Some people take up positions as non-executives without fully understanding what their responsibilities are. Director's insurance is therefore critical because they could be exposing themselves to costly litigation in the course of their duties.
Claims involving directors and officers are often highly political, commercially sensitive, and complicated. Below we take a closer look at examples of D&O insurance claimants.
Bought in conjunction with a D&O policy, the core purpose of a CLL policy is to provide financial protection for the company against the consequences of actual or alleged "wrongful acts".
The Financial Conduct Authority (FCA) regulates the financial services industry in the UK. Its role includes protecting consumers, keeping the industry stable, and promoting healthy competition between financial service providers.
In the United Kingdom, company directors have certain legal responsibilities and potential liabilities associated with their role. It's important for directors to understand these obligations and ensure compliance with the law.