Directors and officers and the insurance companies that insure them often have a complicated relationship that can be both cooperative and adversarial. And as Richard Giller of Alston & Bird LLP explains in an online exclusive article, this relationship becomes even more complicated in the face of a lawsuit that strains the parties’ ability to communicate. He discusses how this effects the cooperation clause of the policy and the ramifications of sharing confidential or privileged information with a D&O insurer.
Because sharing information with a D&O carrier may be critical to assist in the evaluation of liability risks, the cooperation clause had been described as a material provision of the policy and a condition precedent for the insured’s rights under the policy. A breach of the cooperation clause that causes actual and substantial prejudice to the carrier may operate to relieve the insurer of liability under the policy. Thus, the risks associated with the failure of a policyholder to cooperate could be catastrophic.
Giller also offers useful strategies that policyholders and carriers could employ in order to maintain the confidential nature of their communications, including joint defense and confidentiality agreements. So be sure to check out his interesting and informative article, only on RMmagazine.com.