Key Liabilities facing clubs Overview of Liability cover included in BASC membership DIRECTORS & OFFICERS LIABILITY BASC

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1 Key Liabilities facing clubs Overview of Liability cover included in BASC membership DIRECTORS & OFFICERS LIABILITY BASC 16TH MARCH 2013 Carole Martin Vice President - Finpro National

2 Agenda General Liability quick overview General Liability key areas of cover & principal exclusions Directors & officers liability 1

3 Overview of Member s Insurance Public & Employer s Liability & Personal Accident Included within membership (unless a supporter member only), is: Public/Products Liability Insurance cover Limit GBP10 Million Employer s Liability Insurance Limit GBP10 Million Personal Accident Death & loss of limb etc GBP7,500 - All members covered up to the age of 90 (subject to certain restrictions in cover between 80 & 90 years) Cover applies whilst engaged in a BASC recreational activity only there is no cover for any business activity Liability cover responds to injury or damage to third parties or their property, arising out of the negligence Personal accident, generally applies whilst engaged in a BASC recreational activity 2

4 Who is covered? Individual members/member of a BASC club or syndicate have full cover Members who are officers and/or trustees of a BASC club/syndicate in connection with their recreational duties of running the club/syndicate but not for Directors & Officers liability exposures Supervisors of Young Shot Members Official and occasional guests of affiliated BASC Clubs and registered syndicates, have full cover subject to subject to day book and 50% rule 3

5 Liability cover - Key Exclusions Club business activity The first 1,000 of compensation payable in respect of damage to vehicles owned, leased or hired by or otherwise under the control or direction of any person involved in a shoot, Members occupation, trade or profession The use of any banned or illegal substance Libel and Slander, Criminal Acts United States of America and Canada Loss or damage to property belonging to the members or held in trust by or borrowed, rented, leased or hired for use by the insured (see policy wording) except for very limited cover up to 5,000 for property loaned to a member & used in a recognised event. Liability arising out of the ownership, possession or use of any mechanically propelled vehicle or mobile plant subject to certain provisos (see policy wording) Director s and Officers liability Carole will now talk about this 4

6 Directors & Officers Liability What is Directors & Officers Liability? Why buy Directors & Officers Liability? How does Directors & Officers Liability work? Typical claims under Directors & Officers? Potential Impacting Legislation Recent Claims Examples 5

7 What is Directors & Officers Liability Executive or Non-Executive Director of a Private Limited Company have many responsibilities and are becoming increasingly accountable for their actions due to ever changing legislation and regulation. Corporate Governance Legislation - Employment Law, Health & Safety, Environmental Increasing power of regulators Communication to Shareholders/Members Shareholders/members & other third parties more willing to sue 6

8 Why buy Directors & Officers Insurance Public and private statements Investor or shareholder actions Share price performance IP infringement Raising capital - Funding Insured vs. Insured disputes Financial & Capital management Comment & guidance on financial performance Employment Practices Libel & slander M&A activity / Transactions Disposals Consolidation & re-organisations Closure of dormant companies Allegations of fraud - SFO Director disqualification Wrongful trading Former Directors Competition Customers & Suppliers Environmental responsibilities Collusion / anti-trust investigations Foreign & Corrupt Practices Act Health & Safety Legislation Insolvency Act 1986 Competition Act 1998 FSA investigation Companies Act 2006 EU Directives Public Interest Disclosure Act 1998 New Bribery Act Financial health insolvency / bankruptcy Data protection Corporate Manslaughter Act 2007 Inland Revenue Legislation & Regulatory Minefield 7

9 WHY BUY DIRECTORS & OFFICERS LIABILITY Personal unlimited liability - protecting your personal assets Financial indemnification if the club is unable/refuses to indemnify under the articles of association the policy will provide protection Ability to defend yourself against a claim or investigation Defence Costs Awards, Fines and Penalties where permitted at law Civil vs. Criminal actions Who s Insured? Directors, Officers, Employees in a managerial/supervisory capacity, spouse, appointed lawyers Past, present and future Insured Persons 8

10 HOW DOES D&O INSURANCE WORK? Covered claim against Directors & Officers Permitted by law / Articles of Association Company Indemnification? No Yes Who at risk? Insured - Directors & Officers Insured - The Company What at risk? Personal assets Company assets Cover? D&O Insurance Non indemnifiable liability of D&Os D&O Insurance Company Reimbursement of directors costs Retention Normally applies Side A Side B 9

11 TYPICAL CLAIMS UNDER DIRECTORS & OFFICERS LIABILITY Directors & Officers: Regulatory Investigations Insolvency M&A Activity/ Transactions Insured V Insured Disputes Reputational Risk Employment Law Health & Safety/ Corporate Manslaughter Share Performance 10

12 POTENTIAL IMPACTING LEGISLATION Companies Act 2006 Corporate Manslaughter Act 2007 Insolvency Act 1986 Company Directors Disqualification Act 1986 Financial Services and Markets Act 2000 Public Offers of Securities Regulations Criminal Justice Act 1993 (insider dealing) Competition Act 1998 Enterprise Act 2002 Public Interest Disclosure Act 1998 Health and Safety at Work etc Act New Tax Legislation New Bribery Act 11

13 Recent claims examples Acquisition An acquiring company in an acquisition launched proceedings against the principle directors of the target company, alleging negligent and/or fraudulent misrepresentation of the financial standing of the company. The amount claimed was the entirety of the purchase price. Following lengthy and expensive case the action was settled with damages and defence costs amounting to 3,200,000 Insolvency The former directors of a company were sued by their bankers for breach of fiduciary duty and negligent misrepresentation arising from a financing agreement between the company and the bank. When the company went into liquidation, the bank alleged that the directors had provided inaccurate financial statements. The action was finally settled with costs and damages amounting to 7,000,000 Investigation and Prosecution by the Serious Fraud Office Directors of a Company were investigated and subsequently prosecuted for an alleged multi-million pound fraud designed to inflate company profits, which would influence their remuneration. Following a trial lasting several months, the directors were acquitted. 20,000,000 in defence costs were paid by insurers on behalf of the directors Insured v Insured (Conflicts) A Company successfully sued a Director and had costs awarded in their favour. The individual Director then claimed under the D&O policy as a result. Creating a conflict between the Company and Entity. 12

14 Recent Claims Examples Employment Dispute A chief executive was dismissed by his company s board for alleged unauthorised use of company property for his personal benefit. In addition to an action against his former employer for unfair dismissal, the director sued his fellow directors for an alleged breach of duty in their role as administrators of the company s share option plan. The action was settled for 275,000. Health and Safety A managing director and several managers faced criminal prosecution for alleged breaches of health and safety legislation, which resulted in the accidental deaths of two employees. Each defendant sought legal representation and the costs incurred in defending them amounted to 890,000. Reverse Sexism US Gun Club A man who visited a local gun club on ladies day sued the establishment for reverse sexism as he was charged $15 when ladies were allowed in free. He has now filed a $200,000 lawsuit against the club 13

15 Any Questions? 14

16 This PowerPoint presentation is based on sources we believe reliable and should be understood to be general risk management and insurance information only. Registered in England Number: , Registered Office: 1 Tower Place West, Tower Place, London EC3R 5BU In the United Kingdom, Marsh Ltd is authorised and regulated by the Financial Services Authority for insurance mediation activities only. Marsh Ltd conducts its general insurance activities on terms that are set out in the document "Our Business Principles and Practices". This may be viewed on our website