Risk Partners Life Sciences Roundtable 2024, thank you very much! Already for the 26.06.2025 >

OLG Schleswig: Limitation of the liability claim
in the case of a direct claim in the D&O insurance.

There is a new, exciting ruling from the world of D&O insurance. We recently reported on the decision of the Higher Regional Court of Cologne in the context of direct action. Now the Higher Regional Court of Schleswig has also made a groundbreaking decision.

What was it about? The focus was on the question of the statute of limitations. However, it must be borne in mind that the question of the limitation period in D&O claims is not trivial. On the one hand, there is the original claim for damages (statutory directors' and officers' liability separate from the D&O insurance) as well as a claim under cover law that arises between the parties - insurer, insured persons and insured companies - due to the conclusion of the D&O insurance. Now both the claim for damages and the contractual claims under the D&O insurance can become time-barred. If the limitation period for the claim under cover law is now suspended by filing a direct claim or a direct action with the insurer, what does this mean for the necessary liability claim? Can an insurer release itself from liability in this case if the claim is already time-barred? The decision of the Higher Regional Court of Schleswig has now clarified this question.

Background: A fire in a bakery caused considerable damage, of which the fire insurance only covered part, justifiably due to the contractual conditions. (Note: We therefore recommend regularly documenting and reviewing the sums insured and the content of the insurance cover). The operator of the bakery claimed the remaining loss by holding the managing director liable for breach of duty. As a result, the managing director assigned his claim for indemnification under the D&O insurance policy to the company (see the attached diagram). D&O insurance usually covers a company's executives. In the event of a claim, claims must first be asserted against the insured person before they can be enforced against the insurer. This often results in complex and time-consuming liability and coverage disputes. In practice, the dispute is increasingly being conducted in direct proceedings by assigning the insured person's right to indemnification to the policyholder. This allows the policyholder to assert its claims directly against the insurer. The decision: In its ruling of 26.02.2024(case no. 16 U 93/23), the Higher Regional Court of Schleswig stated that this assignment of the right to indemnification constitutes a "truce agreement" (pactum de non petendo) was implicitly concluded. This agreement prevents liability proceedings against the managing director as long as the claim against the insurer exists and suspends the limitation period for statutory liability claims. The suspension under cover law by filing a direct action or a direct claim with the insurer therefore also suspends the statutory limitation period.

The ruling by the Higher Regional Court of Schleswig fundamentally strengthens the position of companies that wish to take direct action against their D&O insurers. It deprives insurers of a further opportunity to reject claims without an indemnification. This makes it more attractive to take direct action against the D&O insurer rather than against the responsible managers. In addition to the transfer of control by the manager concerned, especially in the case of an assignment on account of performance in accordance with section 364(2) of the German Civil Code (BGB), there are other aspects to consider. These include, for example, the effects on public limited companies under the strict AG regime and, in principle, the disadvantages associated with the "direct action", such as contractual insurance obligations in the event of a claim. For this reason, Risk Partners will continue to closely monitor developments relating to direct action on behalf of our clients. We at Risk Partners will stay on the ball for you.

Also read our other blog posts

Venture Capital

We provide information on liability risks for VC funds in the VC Magazine

In December, we were asked by VC-Magazin whether we could provide insights into liability and risk management issues relating to venture capital funds. With pleasure! Together with the team, Florian not only provided insights into current challenges, but also suggested practical solutions to effectively minimize and sensibly transfer the risks of a VC fund. In the VC Magazine article, you will therefore find: added value of customized insurance concepts for VC funds (focus: D&O/E&O insurance #Moonshotprotect), key measures for risk prevention (learning curve from our claims world), indemnifying contractual provisions as a preventive measure, and

Read more "
Being Public

Earnings Call: one 0 too many - the Lyft CEO mistake

"Look, it was a bad mistake, and that's on me," CEO of LYFT Inc. The incident and possible insurance coverage. You may have also heard about the recent incident with LYFT. In the quarterly earnings report, LYFT originally stated that profit margins were up 500 basis points before correcting this to 50 basis points during the conference call. This clerical error caused the stock price to rise more than 60% in after-hours trading. This situation is exactly what investor relations teams that

Read more "
Being Public

Risk Partners supports successful uplisting of Formycon AG to the Prime Standard

Congratulations to Formycon AG on its successful uplisting to the Prime Standard of Deutsche Börse on November 12, 2024! Welcome to the Prime Standard league: A new champion of life sciences and biosimilars has successfully made the step from the Scale segment. We proudly congratulate Enno Spillner, Dr. Caroline Redeker, Daniel Marquard and the entire Formycon AG team on this great success and another important milestone on their way to becoming a global champion in the field of biosimilars! Formycon AG has focused on

Read more "
Risk Partners

13th Hamburg Financial Lines Forum

Risk Partners at the Financial Lines Forum 13th Hamburg Financial Lines Forum. On October 12 and 13, the 13th Hamburg Financial Lines Forum took place with the participation of Risk Partners, a traditional event which this year once again served as a forum for the exchange of current trends. The program began with an overview of current developments and the handling of claims in financial lines, presented by Gabriele Schreiber-Sahin and Michael Hendricks. Dr. Oliver Sieg then shed light on directors' and officers' liability and the European

Read more "
Life Sciences

Atrialis GmbH - experts in clinical trial insurance

Atrialis GmbH - experts in clinical trial insurance & Risk Partners will play in the same team in the future. LifeSciences - Leading risk concepts for leading science! Under this guiding principle, we have been able to advise innovative companies from the biotechnology, pharmaceutical and medical device sectors comprehensively on risk issues for many years and support them with suitable insurance solutions in all growth and study phases, from foundation to IPO and beyond (e.g. insuring a clinical trial). Together with my team at Risk Partners GmbH, we would like to continue our focus, our passion

Read more "
Being Public

Digital and effective prevention of directors' and officers' liability by Risk Partners & Fides Technology

Innovation by Risk Partners & Fides Technology Now on Vimeo and Soundcloud: get practical tips from experts with high relevance for avoiding liability for business managers. Question unanswered? Content: Personal liability is a constant sword of Damocles hovering over managing directors in everyday life. The standard of care is strict and directors bear the burden of proof. In collaboration with the distinguished corporate lawyer Eva Homborg (Esche Schümann Commichau) and the governance expert Philippa Peters (Fides Technology GmbH), we have spent months compiling practical measures on how you can avoid this burden of proof.

Read more "