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D&O Insurance

What is directors’ and officers’ liability insurance under companies act, 2013?

In simple words, the directors’ and officers’ liability insurance is insurance coverage for the directors and officers of a private company, public organization or an NGO. In recent times, the popularity of insurance has increased remarkably in India. Small businesses have put more focus on buying insurance from reliable brokers.

What does the insurance cover?

The main question whose answer you need to know is – what does the directors’ and officers’ insurance cover? What are the costs it manages? The insurance takes care of the legal expenses in cases when the directors or officers of a specific company are sued by any employee. 

D&O insurance is purchased by organisations of all shapes and sizes. While the primary purpose of coverage is to protect individuals, depending on the organisation’s size a policy may also provide some benefit to the entity itself. D&O insurance also provides an organisation and its management with coverage on many fronts. A standard D&O liability insurance policy provides three forms of protection as outlined in its insuring agreements; Side-A, Side-B and Side-C.

Who Is Covered?

The D&O liability insurance policy typically covers the company (parent) and its subsidiaries, defined as any entity in which the insured organization has a wholly owned relationship/interest, or the right to appoint the subsidiary’s board or management. 

The policy also covers any past, present or future duly elected or appointed director or officer, or the holder of an equivalent position as long as any potential claim alleges wrongful acts committed while acting in their capacity as such. 

When a director or senior officer of a company faces a lawsuit, the company or the individual does not have to bother about paying legal fees to the concerned professional. The insurance pays the fees.

Protecting the personal assets

One of the main characteristics of D&O insurance is it efficiently protects the personal assets of the directors/officers in situations of lawsuits. Moreover, if their spouses are sued personally, the insurance has a well-defined provision to protect their assets, too. 

The Companies Act, 2013

The Companies Act, 2013, within the legal framework of the Indian constitution, recognizes the rights of any registered, authentic company to buy D&O Insurance. It is not mandatory to buy such insurance, but, from a practical perspective, it has several benefits. 

Section 197 (13)

Section 197 of the Act clearly says that the money paid by the insurance will not be considered as a part of the remuneration or incentive of the concerned director or officer of the company, given the accused is not proven guilty. In a case when the person is proven to be guilty by law, the costs shouldered by the insurance company will be considered a part of the salary or incentive. 

It is a crucial part of corporate governance

Nowadays, companies, especially small businesses in India, search for more robust ways to stabilize their operations. One of the forward-looking strategies is purchasing D&O liability insurance from a trusted service provider. When the directors and officers of the company have a safety net in this context, it becomes easier to remain competitive in the industry. D&O insurance policy is a very important part of corporate governance. 

It is important to know how the insurance pays

As a person responsible to buy the insurance on behalf of your company or even recommending it, it is vital to know about the ways in which the insurance pays the legal expenses when such situations arise. Go through the details laid by the policy document of the D&O insurance you plan to purchase. 

You can seek legal consultation from experts before buying the insurance from a renowned broker or service provider. It helps in knowing the various dynamics of the insurance policy more clearly.

The specific things D&O Insurance covers

There are three broad categories of coverage under D&O Insurance. The nature and applicability of coverage depend on the type of D&O Insurance and what the service provider promises to offer to the client. You need to consider the following aspects of the insurance while buying it.

  • Protecting the directors by bearing the defence costs in lawsuits, managing the various legal fees, as mentioned in the policy document
  • Indemnifying the particular entity according to valid legal requirements
  • Protecting the balance sheet of the enterprise or company, reimbursing the expenses, fees or settlements

What Types of Claims Fall Under Director and Officer Insurance?

Entities and individuals may sue directors and officers for many different reasons. The vast variety of claims may account for the frequency of claims. Here is a listing of the common claims that fall under D&O insurance:

  • Negligent management
  • Inadequate disclosure in financial reports or statements
  • Breach of contract
  • Antitrust claims
  • Regulatory claims
  • Breach of fiduciary duty resulting in financial losses or bankruptcy
  • Misuse of company funds
  • Failure to comply with workplace laws
  • Theft of intellectual property and poaching of competitor’s customers
  • Lack of corporate governance

Few examples when the insurance can be claimed

It is good to know about a wide range of examples when the directors/officers can claim for the insurance. Here is a shortlist you can go through:

Case: Fund Management 

Description: Shareholders Vs Board Of Directors

Industry: Financial Services 

Case in brief:

  • Shareholders of a large fund management company filed a case against the funds investment advisor, board of directors and independent directors for violating their fiduciary duty.
  • The allegation made was that the board had approved excess fees in violation of its fiduciary duties. The independent director was also sued for being uninformed and failing to monitor the fees paid to the advisor.
  • The verdict was in favour of the adviser and the director, however defense cost were incurred in excess of INR 65 million.

Case: Firing of Employees

Description: Dismissing of Senior Employees 

Case in brief: 

  • A MNC company had hired in 2001 two senior bankers and they were made to understand that they were to head the new subsidiary. 
  • The setting up of the subsidiary kept getting delayed which soured relationships between the employees and employers. 
  • The company in 2003 dismissed both of them citing incompetence and absenteeism as the reason. 
  • Both the dismissed employees filed criminal cases for damages of INR 80 crore against all the directors of the company alleging cheating, fraudulent misrepresentations about the job profile, remuneration, failing to fulfil terms of employment contract and defamation by press release. 
  • A prolonged legal battle followed and the defense cost incurred by the directors was advanced to them. 

Case: Advice by Management Consultant

Description: Client Vs. Management Consultancy

Industry: SMB – Manufacturing 

Case in brief:

  • A management consultant was hired by a small manufacturer to recommend strategies for increasing productivity. 
  • The management consultant identified three key areas in the production process that were causing bottlenecks. One recommendation was to expand the factory, another to change equipment, and a third to increase staff. 
  • The client accepted all the recommendations. In order to make the necessary capital improvements, the manufacturer had to shut down temporarily for two weeks. 
  • The client completed the expansion, increased staff, restarted operations, and started working to make up the productivity lost during the two-week shutdown period. 
  • However, one year after the substantial capital improvements were made, the client’s productivity actually diminished. 
  • The client sued the management consultant for offering negligent advice and was able to recoup most of the cost of the capital improvements from the management consultant’s E&O policy.

Moreover, when an employee thinks he/she has been misdirected by wrong information, harmed by improper safety measures or neglected via appraisal policies, and files a case against the directors/officers, the insurance takes into account the legal fees. The company, in such situations, do not have to bear the costs of hiring a lawyer. 

Getting D&O Insurance gets a complete legal validation from the Companies Act, 2013. As a business, it is your right to buy the insurance, implement its policies and ask for the claims when required. Insurance helps a company to operate with more preparedness. 

Check out the limit of the coverage

It is essential to check out the limit of the D&O Insurance Policy Coverage before you make a final decision to buy it. The document will have the relevant details on this matter. Spend some time reading the various sections of the policy document. Ask questions to the broker or service provider when you have any doubts. 

Purchase the insurance from a reputed broker

PlanCover is a reliable and reputable broker in the Indian insurance industry, from which you can conveniently buy the D&O Insurance Policy. Get in touch with the broker to get details about various aspects of the insurance.

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