Dishonest, Fraudulent, and Criminal Acts
May 2, 2016
Today, many lawsuits against directors and officers contain allegations of fraud, especially in securities cases. This is partially the result of passage of the Private Securities Litigation Reform Act in 1995, which was aimed at encouraging meritorious lawsuits while discouraging frivolous suits. One of the results of the Act was to increase the pleading requirements as respects fraud and dishonesty.
Most D&O insurance policies contain some form of dishonesty and fraud exclusion designed to preclude coverage for claims based on or arising out of dishonest, fraudulent, and criminal acts committed by individual insureds. An example of a broadly worded form of the exclusion, taken from an old D&O policy, follows.
The insurer shall not be liable to make any payment for loss arising from, by reason of or in connection with:
(K) the fraudulent, dishonest or criminal acts of the assureds;
Home H36667F
This exclusion may appear reasonable because these actions are not normally insurable as a matter of public policy, nor are they generally indemnifiable by state law. A potential problem with such language, however, is that sometimes there is no specific exception to the exclusion that would allow coverage for defense when dishonesty is alleged but not proven.
After passage of the reform act in 1995, many insurers began introducing dishonesty and fraud exclusions that were amended so that the exclusions would only apply when a final judgment establishes that such fraudulent, dishonest, or criminal acts did in fact occur. Two examples of this language follow.
The Insurer shall not be liable to make any payment for Loss in connection with a Claim made against any Insured:
B. based upon, arising out of, directly or indirectly resulting from or in consequence of, or in any way involving the committing in fact of any criminal or deliberate fraudulent act.
Admiral DO 1200
The Insurer shall not be liable for Loss on account of any Claim:
C. based upon, arising out of or attributable to:
2. Any willful violation of any statute or regulation or any deliberately criminal or fraudulent act, error or omission by the Insured:
If established by a final and non-appealable adjudication adverse to such Insured in the underlying action.
Axis Insurance Company, MCL 0001
Language requiring an establishment “n fact” or by “judgment or other final adjudication” as shown in these examples means that the exclusion applies only when directors and officers have been found by a court to be guilty of dishonesty or other excluded acts. Such a requirement is desirable from the insured's standpoint, especially considering that a large percentage of claims result in voluntary settlement without final adjudication or an admission of wrongdoing.
When a defendant insured enters into a voluntary settlement that requires the insurer's consent, the settlement effectively prevents an adjudication on the issue of dishonesty, which in turn prevents the exclusion from applying. Once the insurer consents to a settlement, the courts generally have barred any further litigation by the insurer to establish the insured's dishonesty.
Although some policies allow coverage for dishonest, fraudulent, or criminal acts if a judgment or other final adjudication fails to establish that such acts actually occurred, it is not always clear when dishonesty “in fact” occurs. The term in fact may imply less of a threshold for proof than adjudication and, therefore, language requiring a final adjudication is preferable. Use of the term in fact may not bar the insurer from separately litigating the issue of an individual insured's dishonesty.
There is great variety in the wording of dishonesty exclusions. As illustrated in the following example, many insurers combine fraudulent, dishonest, and criminal acts in a single exclusion. Others break these offenses into separate, individual exclusions. Even when a unitary exclusion is used and is subject to an exception, the exception may extend only to one act, such as dishonesty, as in the following example taken from an old policy form.
by reason of any deliberately dishonest or fradulent [sic] act or omission, or any criminal or malicious act or omission, or any willful violation of law; however, notwithstanding the foregoing, the Directors or Officers shall be protected under the terms of this policy as to any claims upon which suit may be brought against them by reason of any alleged dishonesty on the part of the Directors or Officers, unless a judgment or other final adjudication thereof adverse to the Directors or Officers shall establish that acts of deliberate dishonesty, as aforesaid, committed by the Directors and Officers were material to the cause of action so adjudicated;
Reliance BD-8502
Also note in the previous example that the exclusion is modified by use of the word deliberately. When used as an adjective, deliberately implies that the activity was decided upon after examination and reflection and that the consequences of such deliberate action were weighed and carefully considered. It implies willful, as opposed to merely intentional, conduct. Such an adjective may limit the exclusion by making a finding of dishonesty more difficult, but the precise effect is difficult to judge.
When the exclusion requires an adjudication or a finding in fact of dishonesty, many D&O policies will provide defense coverage unless and until such time as the excluded dishonest act is proven to have occurred. Many forms also contain a severability or nonimputation provision that limits the dishonesty exclusion to only those insureds who have, or who are alleged to have, committed the excluded acts. This severability or nonimputation provision is sometimes included within the wording of the exclusion but more often appears elsewhere within the Exclusions section of the policy.
Dishonesty exclusions that do not preclude coverage unless the question of dishonesty is adjudicated are preferable to those exclusions that are triggered simply by a finding in fact. Also preferable is language requiring the excluded actions to be deliberate. Some exclusions apply the in-fact or final-adjudication exception only to the dishonesty part of the exclusion and not to criminal or fraudulent acts. This is undesirable because it may preclude defense coverage for claims based on alleged criminal or fraudulent acts. Policies that contain a severability or nonimputation provision as respects dishonest acts are similarly preferable to policies without such a provision.
Willful Violation of Laws
Some D&O policies exclude coverage for claims based on the willful violation of laws, rules, statutes, and regulations. The exclusion for such claims may be included within or in addition to the dishonesty exclusion.
While few would argue that the willful violation of laws with malice is a proper subject of insurance, use of the adjective willful may have a limiting effect on the scope of the exclusion in the same manner as use of the word deliberately. Violations of laws, regulations, and rules that are not willful are not excluded by this provision.
Exclusions that refer to the unqualified violation of rules and regulations are unduly restrictive. Although in a legal sense a regulation means law, it may also refer to a corporation's bylaws, which may be mere self-imposed rules for management and control of corporate affairs. The meaning of the word rule is varied as well, and its significance depends upon the context in which it is used. Liberally interpreted, it could mean a corporation's rules of conduct for its employees, such as procedures to be followed when hiring and firing. Absent a clear definition or clarification on the insurer's intent, unqualified exclusions of violations of rules and regulations should be avoided.
In order to better ensure that a D&O policy will respond to the increasing threat of alleged criminal wrongdoing, make sure that the policy contains language or is modified via endorsement so that any such exclusions apply to (a) only to deliberately fraudulent conduct or intentional violation of law; (b) only if such conduct is established by a final and non-appealable adjudication in the underlying proceeding; (c) only to those insureds who actually commit the alleged conduct, and (d) do not apply to the defense cost of outside directors or officers.
In addition and to avoid an insurer from alleging that an insured breaches his duty to cooperate with the insurance company when asserting the Fifth Amendment privilege against self-incrimination, the D&O policy should also expressly prohibit the insurer from raising such a coverage defense.