Management Liability Despite D&O Insurance

The managing directors of a GmbH often assume that there are no personal liability risks for you, especially if the company has taken out D&O insurance to protect you. However, this notion is often incorrect, as a decision of the Düsseldorf Higher Regional Court, Judgment of July 20, 2018, Az. – I-4 U 93/16 – indicates.

The Düsseldorf Higher Regional Court decided there that D&O insurance does not cover a GmbH manager’s liability for illegal payments made after the insolvency stage, as this does not include an insolvent company’s claim against its insured manager for reimbursement. of such payments by the company in accordance with § 64 GmbH-Law (now § 15 b InsO) is recorded.

The background is that a managing director is personally liable with his private assets according to § 64 GmbHG (now § 15 b InsO) for company payments that the company made to third parties after the insolvency or over-indebtedness of the company . As a rule, in such cases, the insolvency administrator claims these funds from the CEO.

The Higher Regional Court of Düsseldorf now considers that a claim for reimbursement by the insolvency administrator under Article 64 GmbHG (now Article 15 b InsO) is not a claim covered by the insurance contract, since the liability claim under the article 64 GmbHG (now article Section 15 b InsO) is related to the insured’s claim for damages due to financial losses is not comparable.

It is rather a “claim for indemnity in its kind”, which exclusively serves the interests of all the creditors of a bankrupt company, since these illegal payments would only affect the share of insolvency of the other creditors of the company. The company itself does not suffer any economic loss as a result of these payments once the insolvency situation has occurred, since the payments are usually made to satisfy a liability of the company. However, D&O insurance is not designed to protect the interests of creditors.

This shows once again how important it is for the managing directors of a GmbH to always check carefully in the event of a crisis whether the company is insolvent or over-indebted.

Peter Werner

Lawyer specializing in commercial and corporate law

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