The US District Court Southern District of New York has found in favor of a policyholder in a case which reaffirms an insurer's broad defense obligation, holding that an insurer could not evade coverage on the grounds that the insureds were not acting in an insured capacity. The case is Spicer v. Nat'l Union Fire Ins. Co., No. 1:20-cv-3784-GHW, 2021 U.S. Dist. LEXIS 125513 (S.D.N.Y. July 3, 2021).
National Union Fire Insurance Company (National Union) provided directors and officers liability coverage for the executives of Aegis Defense Services. The policy did not extend coverage to the parent company, Hestia B.V. (Hestia). The plaintiffs, Timothy Simon Spicer, Jeffrey Paul Day, and Mark Bullough, were all executives of Aegis and shareholders of Hestia. The plaintiffs were involved in Hestia's sale to Gardaworld, who sued the plaintiffs for alleged misrepresentations made in connection with the sale, the plaintiffs each demanded that National Union fund their defense in the lawsuit as was required by the D&O insurance policy. The policy provided coverage for a "Wrongful Act" which is defined to include "any breach of duty, neglect, error, misstatement, misleading statement, omission or act by such Executive or Employee in their respective capacities as such . . . ."
National Union refused and argued that the plaintiffs were acting in their capacity as shareholders of Hestia in their negotiations to sell that company, as opposed to in their capacity as executives of Aegis, so the conduct at that time was not covered by the policy. National Union also argued that the plaintiffs had acted in a dual capacity at the very least, which would trigger a exclusion for losses arising from acts arising from any role other than Aegis executives.
Various New York cases stress how "exceedingly broad" the duty to defend is, mentioning that the duty to defend is a lasting obligation that "continues 'until it is determined with certainty that the policy does not provide coverage,'" and "an insurer will be called upon to provide a defense whenever the allegations of the complaint 'suggest. . . a reasonable possibility of coverage.'"
The court found that there was a reasonable possibility that the conduct alleged in the counterclaims constituted a "Wrongful Act" as described in the policy. According to the court, the Counterclaims point to misstatements in Aegis financial statements that were later provided to Gardaworld, which may be attributed to the plaintiffs acting in their capacity as Aegis company executives.
According to the decision "[b]ecause the Counterclaims describe misstatements made by the plaintiffs in their roles as executives of Aegis U.S., and the first counterclaim is not necessarily limited to misstatements made by the plaintiffs in their capacities as officers, directors, or shareholders of Hestia, the Court cannot conclude as a matter of law that the Counterclaims do not implicate "Wrongful Acts" for which the plaintiffs may seek indemnification under the Policy."
Editor's Note: According to Plaintiff's attorney, Kenneth Frenchman, with boutique insurance law firm Cohen Ziffer Frenchman and McKenna, "We are very pleased with the decision. Judge Woods' recognition of the broad duty to defend for directors and officers will hopefully encourage insurers to step up and defend these sorts of claims in the future instead of forcing policyholders to bring suit."