In a recent judgment, the Federal Court of Justice has clarified against all previous OLG case law: Payments that the insolvency administrator demands back from the managing director (according to former Section 64 sentence 1 GmbHG) are covered by D&O insurance.
If a manager in Germany initiates payments after the company has become insolvent, the insolvency administrator can demand these payments back from the manager (former Section 64 (1) GmbHG). In its judgment of November 18, 2020 (Az. IV ZR 217/19), the Federal Court of Justice (BGH) clarified, contrary to the previous case law of higher regional courts, that these claims are covered by the insurance cover of a D&O insurance. The BGH focuses remarkably clearly on the view of the insured person, which is also important for other branches of insurance.
So far, it had been disputed whether claims by the insolvency administrator against the managing director of the insolvent company for reimbursement of payments made after the bankruptcy was ripe are covered under D&O insurance. The OLG Düsseldorf and the OLG Frankfurt had rejected claims for coverage from the D&O insurance. The argument: Claims for repayment according to § 64 GmbHG are not a "statutory liability claim for damages" in the sense of the insurance conditions, but a claim for compensation "of its own kind".
The BGH did not follow this argument in its judgment. The court ruled that whether claims against a director are insured claims within the meaning of the insurance terms should be assessed solely from the perspective of the average insured person. "It is of particular importance that the Federal Court of Justice once again clarifies that the interpretation of insurance conditions does not depend on subtle legal interpretations, but rather on the understanding of the insured person," explains Dr. Mark Wilhelm, Managing Partner at WILHELM. This underlines the general importance of the judgment for insurance conditions.
Press information (German)