Feature

Directors in New Zealand and Australia are facing the most volatile and restrictive liability insurance market in living memory, according to a report released by the Institute of Directors (IoD) with Marsh and MinterEllisonRuddWatts. And there are no signs of it improving anytime soon. 

“Regionally, D&O claims payments have dwarfed the total insurance premium pool as litigation funders become more commonplace and as New Zealand’s regulatory environment, particularly our class action regime, evolves,” said MinterEllisonRuddWatts partner Andrew Horne. 

As a result, Marsh chief client officer Steve Walsh said:  “insurers are increasingly cautious when considering renewals or applications, often requiring greater access to organisations and their boards. Premiums and excesses are climbing and some insurers are exiting the market altogether

“Directors should be ready to play an active role in securing the appropriate liability coverage for themselves and the organisations they represent. This could include meeting with insurers to provide insights into the company and board structure, as well as their own competency and qualifications.”  

As directors and entities come under economic and structural pressure amid a more litigious backdrop, D&O insurance was more crucial than ever, said IoD governance leadership centre and membership general manager Felicity Caird. 

“Good governance is integral to successful, sustainable organisations. Strong directors leverage their experience and professional instincts to move an organisation forward; it requires focus and often courage. This is difficult if they’re constantly looking over their shoulder, worrying about personal liability,” Caird said.

“And it’s not just an issue for listed or private companies. Not-for-profits (NFPs) are particularly vulnerable, with many already facing financial challenges as fund-raising opportunities shrink amid Covid-19 restrictions.” 

Walsh said New Zealand insurers had so far been relatively sympathetic to the NFP sector when it came to renewals and premiums. “But it’s certainly been tougher in other jurisdictions, so the local industry could well change tack. It’s important that all organisations strike the right balance between the rising costs of insurance and the appropriate level and mix of protection,” he said.    

Horne confirms that liability risks differ across industries and organisational complexity, so entities need to understand exactly what a specific D&O insurance policy offers. “Some key issues directors should be looking for are; whether coverage includes investigation costs, separate defence costs, and adequate cover for individual representation, as well as whether it excludes insolvency-related claims or cover for capital raising or claims by majority shareholders.

“Not all D&O policies are equal.”



December 2020

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