What Enron Can Teach Us About D&O Coverage

The Enron saga is, itself, utterly fascinating. If you haven’t had the chance there are several good documentaries about it, one being “Enron: The Smartest Men in the Room”. Unfortunately I don’t believe it’s available on Netflix anymore, but alternate streaming services still have it (here’s an Amazon link). I’m sure there’s more in-depth and technical sources out there but as a relatively “soft” documentary it’s a great film with which to wind down a day. FindLaw.com also has an interesting set of articles if you’re looking for more to peruse.

While perhaps not the most interesting of all the specific topics dealing with Enron, there are some curious lessons in the way insurance played out – especially D&O. If you’re just looking for the take-home point it’s this: even if a defendant pleads guilty that is not considered a “final adjudication” of guilt (I know!), at least in the Enron case. This was surprising to me, as well as to Enron’s D&O insurers I suppose, whom I understand had a total of about $350M in limits put up. Here is an expert explaining the circumstance from an IRMI Whitepaper (I have since lost the link but I *believe* the below is verbatim):

Former Enron CFO Andrew Fastow pleaded guilty in criminal proceedings associated with Enron’s bankruptcy. Yet since the Enron D&O policy forms were written on a “final adjudication” basis, the insurer was obligated to continue defending Mr. Fastow against civil lawsuits because his conduct still had not been subject to “final adjudication.” Although Mr. Fastow had already pleaded guilty to criminal charges, he had not yet been sentenced and until that time could still change his plea. But by continuing to defend Mr. Fastow, other far less culpable directors and officers—including retired directors—had their remaining policy limits depleted. 

My notes say the IRMI article called the “Final Adjudication” language a “minefield”, but I wouldn’t go that far (seriously IRMI?).  However, it is one of the most preferential provisions an insured can secure in a D&O policy – and be careful out there because while it is becoming *more* common it should certainly not be considered the default. While such language may provide for sub-optimal circumstances – such as a “guilty” director getting defense coverage they “shouldn’t” have – the benefit of preserving coverage for alleged fraudulent acts, which are ultimately baseless, far outweighs such consequences. 

But there’s a second consideration to all of this as well.  What if instead of “guilty”, Andrew Fastow had pleaded no contest?  Is a plea of nolo contendere a “Final Adjudication”?  The short answer is… “No!”  But do bear in mind that jurisdictions vary. This “Policyholder Advisor Alert” from the law firm Anderson Kill (NY) does a great job of explaining how the variations on the “Final Adjudication” clause in policy can play out, both theoretically and practically:

The most advantageous conduct exclusions are triggered only by a final and non-appealable adjudication against the policyholder. Conversely, insurance companies may interpret references to “determinations in fact,” “adverse admissions,” or other potentially non-final determinations as giving them license to adopt an earlier trigger. Triggers like “written admission by the Insured” or “plea of nolo contendere or no contest regarding such conduct” make it more likely that the insurance company will apply the exclusion. An insurance company might attempt to latch onto a statement by the policyholder’s representative at deposition or a preliminary finding of fact by the court. Even an exclusion that lacks only the “non-appealable” component could be fodder for an insurance company to argue against coverage, even if an incorrect result is overturned on appeal.


Final, non-appealable adjudication language ensures the policyholder gets its full “day” in court and pushes the coverage decision further into the future, increasing the likelihood of a settlement that avoids the conduct exclusion altogether.

You will note that they specifically mention some provisions which state “an admission by the insured” or similar – this is because carriers are inserting these into “Final Adjudication” clauses with regularity, though not always. Again, it’s important to know how your particular provisions work.

Another topic to discuss, which the above Anderson Kill article touches on, is severability. This is the portion of your policy, usually hidden in the “warranty” and “state conditions” and similar pages that people tend not to read. In short, severability determines whether one insured’s actions impute/affect another insured’s coverage. For example if one director is found guilty of fraud what happens to the coverage for the other directors? What happens to the coverage for the corporation? What happens if the CEO knowingly falsified and signed the coverage application – will that exclude coverage for other individuals?

This, again, is something that is going to be unique to each carrier. However, I am happy to say that many offer decently advantageous “severability” clauses either in their base form or via endorsement. When you’re looking at these you want to pay attention to two key areas:

1. What happens if one director is found guilty – is coverage preserved for “innocent” insureds?

In this case I would say most policies I’ve personally dealt with do preserve coverage. Some very small D&O policies, or add-ons you might get with other coverage, very well may not be as generous but my experience shows this isn’t a contentious ask.

2. What happens if the application is falsified?

This scenario is typically more complex as, while many carriers will provide details in this situation, they vary widely in to whom the falsification is “imputed” to. The more generous provisions will state something along the lines of “if an application is falsified by [C-Level Executives/Directors] it’s imputed to the corporation but not to other directors and officers”. In such a situation, a CEO falsifying an application would remove coverage for the corporate entity, but not for other executives. This is also why D&O carriers often insist that applications be signed by particular individuals.

D&O policies are some of the most complex beasts out there, and such complexity isn’t often known until the crisis arrives. So if you have the time, I would highly suggest you look at not only Enron data (I picked that simply because of its fame and the info is plentiful), but anything else you can get your hands on. These types of policies, being “relatively” new to the scene and non-standard are also going to be highly sensitive to jurisdictional changes (jurisdiction itself being a concern when you have a policy for a national or international client!).

Additional Insureds: a Reference (Work in Progress)

As there are already tons of learning opportunities regarding Additional Insured status, this post will instead be a general reference – it already assumes you’re well versed in the world of Additional Insureds. The following notes are especially relevant to construction industry clients as these are the primary drivers of complex AI requests, in my experience.

Since this is a reference it will be updated periodically. I will initially start with the oft-used GL AI forms, found especially in the construction world, and then proceed to review other options and how different lines handle AI. Please excuse any inelegant formatting and such as I’m still debating on how best to organize.

General Liability:

  • CG 20 10 11 85 – the “OG”, first created after the CGL overhaul in 1985.
    • No limitation for Ongoing vs. Completed Ops
    • Has historically been litigated to provide *sole* coverage for the AI (i.e., not limited to vicarious only)
    • Technically out of use for ages but many, many carriers still offer it as market demand (via contracts) is high
    • Still contains “[work] for that additional insured” limitation (see later) which can cause havoc with improper blanket wording
  • CG 20 10 10 01 – Very similar to CG 20 10 11 85, except limited to ONGOING operations only.
  • CG 20 37 10 01 – Very similar to CG 20 10 11 85, except limited to COMPLETED operations only.
    The pair of CG 20 10 10 01 and CG 20 37 10 01 are functionally equivalent to the CG 20 10 11 85.
  • CG 20 10 07 04 & CG 20 37 07 04 – Uses the “10 01” language but adds the restriction that liability which triggers coverage for the AI must arise “in whole or in part” by your actions or those acting on your behalf.  I.e., removes “sole negligence” coverage for the AI.
  • CG 20 10 04 13 & CG 20 37 04 13 – Uses the “07 04” language but adds the further restrictions that coverage is only provided to the AI is permissible by law and, if the AI status/coverage is dictated by contract, only to the extent required by the contract. E.g., if your contract only requires $500K of AI coverage but you have a $1M policy/AI endorsement, the endorsement will be limited to the contractually obligated amount.
  • CG 20 10 12 19 & CG 20 37 12 19 – Functionally equivalent to the “04 13” versions but an administrative clarification was made – the “Limits of Insurance” verbiage was amended to remove the reference to the limits “shown on the Declarations”; rather the endorsement merely states the AI coverage will not increase available limits (rather than “will not increase the limits [shown on the declarations]”. This is in recognition of the fact that limits can be amended by endorsement and thus the “hard” reference to the declarations may be in error. I am not aware of a lawsuit that prompted this but if you know of one please send my way!

The above endorsements are strictly “Scheduled” AI forms – meaning their technical use is limited to name a single, explicit entity to whom AI coverage is given. However it’s very common to have endorsements with manuscripted “blanket” language – for example the schedule might read “All parties with whom you have an executed written agreement to provide Additional Insured Coverage” or similar.

This is usually not a problem – and often the preferred way of writing these endorsements since many contractual parties want to see specific endorsement numbers – but it definitely can be. This is because each of these endorsements, even the “11 85”, has a limitation that states, essentially, coverage is limited to operations performed for the named Additional Insured. Here is the relevant text from the CG 20 10 12 19, emphasis added:

[…] in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.

Note the explicit reference to both the Additional Insured (and location).  This means that if your blanket language is insufficient, you could be leaving out a LOT of coverage for a LOT of third parties.

This is primarily a concern when the blanket language references only parties with whom you have a direct contractual relationship (privity).  For example, in Westfield Insurance v. FCL Builders, Inc. the insured’s “Blanket” wording read:

“A. Section IIWho Is an Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such a person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.”

Reading that via the “four corners” analysis (as insurance courts are designed to do), the only entities to whom that “blanket” AI language applies are those with whom you have a contractual agreement that such person or organization be added as an Additional Insured.

However, contracts require multiple third parties to be named as AI all the time – and an insured signing the contract typically doesn’t have a direct contractual relationship with these parties (say an owner, or bank). Because of this, the above blanket AI wording is limiting – it does not apply to those third parties whom you were obligated to add as AI but with whom you do not have contractual privity.

Because of this you must, must, must negotiate the proper “blanket” wording for AI forms. Simply securing the 10/01 or 11/85 editions is not enough – you must ensure it responds properly to all those entities to whom your insured is obligating themselves.

This privity concern is also a huge issue when ISO attempted to provide a standard “automatic” AI status. Firstly, ISO released such endorsement only for Ongoing Operations, then while they did finally release one for Completed Ops as well both contained the privity issue, necessitating another set of endorsements (automatic status for other parties). When this post is updated in the future we will review those endorsements (CG 20 33, CG 20 38, CG 20 39, CG 20 40). The “TL;DR” of that is that the combination of those will imitate CG 20 10/20 37 12 19, but if you need “old” coverage you’re stuck with the above scheduled forms until the cows come home.

When Outside Defense Isn’t

Defense costs “Outside” the Limit of Insurance is almost taken for granted and it’s becoming a more common feature for policies that have historically been purely “Inside Limits” policies.  Even with policies such as Directors & Officer’s Liability you’re seeing additional limits and – depending on the type of policy (Non-profit, etc.) – full “Outside Limits” Defense coverage. 

Defense is usually paid as “supplemental costs” in a policy, and an insuring agreement will usually say something like, “We will pay all costs we incur, including legal and defense fees.” It is important to highlight, then, that it isn’t *technically* “Defense Costs” that are “outside the limits” on these policies, rather it’s the non-indemnity costs incurred.  This is an important distinction when a policyholder has agreed to indemnify someone via contract. The short version of why is because contractual costs are “indemnity” loses to the policy holder, even if those costs are earmarked in the contract for defense.

The reason for this is because indemnity, even of a third party’s defense costs, are considered “damages” (or similar) by the policy. In fact the CGL expressly says this. In the Contractual Liability exclusion of the CG 00 01 10 01, to which there are many exceptions, we find this language: 

Solely for the purposes of liability assumed in an “insured contract”, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages… 

Note there are some provisions you can find under “Supplementary Payments” that allow defense costs “outside” for the indemnitee when various conditions are met, and these typically require the indemnitee to subjugate themselves to handing over all defense options to the insuring carrier – something many won’t wish to do.

I’ve seen contracts that specifically require one party to indemnify another and specifically states that any insurance defense should be “outside” the limits. On the retail side this problem is often met by adding an Additional Insured provision to the policy. But this isn’t a perfect solution either as many Additional Insured provisions are now, themselves, stating that defense costs are specifically “inside” the Limit of Insurance. 

This type of language has not yet made it into ISO forms, as far as I’m aware, but we have seen ISO continue to restrict Additional Insured endorsements. One major recent change being that (e.g.) on the CG 20 10 the coverage afforded to an Additional Insured is specifically limited to that which is required by the contract. This alone could be sufficient for a carrier to say that “outside” defense coverage shouldn’t be assumed as “required by the contract”, hence the AI does not enjoy such. 

Even if not, I imagine we’ll see some of the “Standard” Additional Insured endorsements specify “inside” defense coverage soon enough, though “soon enough” is relative in the insurance industry when changing a comma on an ISO form can take a decade. For now, take a close look at your AI endorsements and any “automatic” provisions to see what is offered; this limitation could already be in place – this is especially the case for proprietary/non-standard/excess lines forms.