D&O Insurance in the Shadow of Insolvency

All D&O policies are written on a “claims-made” basis, which means that the policy responds to claims made against directors during the policy period and not when the underlying wrongful act occurred.

Introduction

When a company enters insolvency, its directors face a particularly vulnerable position as the company is no longer capable of indemnifying them, while new stakeholders, such as resolution professionals, liquidators, and creditors, subject their past decisions to scrutiny. It is in this context, at the intersection of corporate failure and potential personal liability, that directors and officers (D&O) insurance assumes significant importance. In India, this intersection has sharpened since the enactment of the Insolvency and Bankruptcy Code, 2016 (IBC) which created a new liability architecture for directors, one that D&O policies were not originally designed to navigate.

In India, D&O policy issuance is regulated by the Insurance Regulatory and Development Authority of India (IRDAI) under the Insurance Act, 1938. Companies can purchase liability insurance for their D&O under Section 197(13), Companies Act, 2013. The Securities and Exchange Board of India (SEBI) has mandated D&O insurance for independent directors of top 1000 listed companies since 2022.¹ All D&O policies are written on a “claims-made” basis,² which means that the policy responds to claims made against directors during the policy period and not when the underlying wrongful act occurred. This implies that the insurance cover does not cease on the company’s liquidation, but the D&O policy can continue to respond to notifications made after insolvency commences. This structural lifeline for directors and a battleground for insurers.

The IBC and the expansion of director liability

The liability exposure of Indian directors in corporate insolvency resolution process (CIRP) is extensive and growing. Section 66 IBC empowers the National Company Law Tribunal (NCLT), on an application by the resolution professional, to fasten liability on directors for fraudulent and wrongful trading. Section 66(2) does not require proof of intent to defraud, rather, it applies when a director knew or ought to have known that there was no reasonable prospect of avoiding CIRP and failed to exercise due diligence in minimising losses to creditors. This provision is borrowed directly from Section 214, UK Insolvency Act, 1986, though with a critical difference: Under the UK law, wrongful trading liability arises when insolvent liquidation becomes inevitable, but India’s IBC, by contrast has set the trigger at a “payment default”, a considerably lower threshold.³ Advancing the threshold at which directors must take corrective action increases the prospect of personal liability, incentivising directors to act at the first onset of financial distress rather than waiting until a going concern rescue is no longer viable.⁴ Section 14 IBC imposes a moratorium on suits against the corporate debtor, the transfer of assets and enforcement of security interests. However, the moratorium under Section 14 applies only to the corporate debtor and not to its directors as individuals. This bifurcation is crucial as while the company’s assets are shielded, the director’s personal assets remain exposed to claims by the resolution professional, creditors, and regulators, the precise moment when Side A D&O coverage becomes indispensable. The Supreme Court’s ruling in ICICI Bank v. Era Infrastructure has allowed simultaneous CIRP against primary debtors and guarantors, multiplying the number of proceedings in which director personal liability may be asserted. The CIRP timelines average 713 days against a mandated ceiling of 330, meaning each director’s tail risk window has more than doubled what the statute contemplates.⁵

The gap in Indian law

The jurisprudence regarding the intersection of insolvency law with D&O insurance is significantly underdeveloped in India, despite its significance. The collapse of Infrastructure Leasing & Financial Services Ltd. (IL&FS), with defaults of Rs 91,000 crores, was the largest corporate crisis since the Satyam Scam. The SEBI and the Ministry of Corporate Affairs initiated proceedings against Board members for financial mismanagement and governance failures. Personal liability was asserted against individual directors. The scale and complexity of the crisis raise fundamental questions that remain unanswered in India law: 1) Are D&O policy limits sufficient relative to the scale of India mega insolvencies? 2) Do insured versus insured (IvI) exclusions prevent related parties (RPs) from accessing policy proceeds? 3) Do insolvency exclusions in the policy lick in when IL&FS type restructuring begins? The IL&FS crisis, thus, directly exposed the D&O coverage vacuum in Indian insolvency law.

The absence of reported Indian litigation directly litigating D&O policy terms within CIRP proceedings is not accidental. The CIRP proceedings before the NCLT are primarily focused on resolution value and creditor recovery, the Committee of Creditors has little incentive to spend CIRP time litigating whether a D&O insurer’s exclusion is valid, when a negotiated settlement is faster. There is also no statutory obligation on the resolution professional to audit or disclose D&O policy terms to the Committee of Creditors, so coverage adequacy is simply never examined. Finally, the scale of Indian D&O limits is low enough that disputes are economically irrational to litigate, given the cost and duration of commercial litigation. The result is a systematic suppression that would otherwise force the IRDAI and Insolvency and Bankruptcy Board of India (IBBI) to act.

The structural lacunae are significant. First, the IBC is silent on whether Side A proceeds paid to individual directors are assets of the corporate debtor. Second, the IRDAI imposes no mandatory carve out from IvI exclusions for CIRP proceedings, implying that an insurer can block a resolution professional filing under Section 66 by invoking the IvI exclusion. Third, standard conduct exclusions may deny coverage for Section 66(2) by conflating it with fraud. Fourth, there is no mandatory run-off obligation and no minimum prescribed limits benchmarked to creditor exposure. Thus, the Indian D&O practice seems to suffer from two issues, namely: 1) policy limits too low relative to the scale of personal claims given the expanded liability under the IBC; and 2) exclusions for insolvency, wilful default, and fraud that could potentially defeat the very claims most likely to arise.

Critical lessons from English and US law

The English cases are most relevant to India for a chain from doctrine to modern crisis. Produce Mktg. Consortium Ltd. (No. 2), In re⁶, the first ever wrongful trading case, established the foundational principle that Section 66(2) IBC replicates: Liability requires no fraud, only a failure to exercise reasonable diligence when insolvency was foreseeable. D&O policies that exclude liability for any “wrongful act” in insolvency are overbroad against this backdrop. In BTI 2014 LLC v. Sequana SA⁷, the Supreme Court confirmed for the first time that the director’s obligation to prioritise creditor interests is engaged when directors know or ought to know that insolvency is probable and not merely a real risk. Thus, it defines the precise moment from which D&O coverage must respond to creditor claims. The most consequential ruling is BHS Group Ltd., In re⁸ where £6.5 million was awarded against two directors under Section 214 and an additional £110 million in misfeasance liability. The £20 million D&O policy limit was catastrophically inadequate. For India, the warning is stark, IL&FS scale insolvencies have potential to generate IL&FS scale claims that no standard Indian D&O policy limit can absorb.

The cases from the United States (US) directly address the questions Indian law has left open. In Fluharty v. Philadelphia Indemnity Insurance⁹, the court held that bankruptcy trustees lack standing to seize D&O proceeds covering only individual directors. Brands Group, LLC, In re¹⁰ reinforced this by lifting the automatic stay on Side A-only policy (individual director coverage, not estate property) but declined to lift it on the Side ABC policy, which named the debtors as co-insured and therefore constituted estate property. Compute North Holdings, In re¹¹ added a further dimension: A post-confirmation litigation trust was permitted to access the D&O insurance to fund fiduciary-duty claims against former directors, because the policy’s runoff provisions extended to pre-policy conduct. While D&O insurance in India is a “claims policy”, lack of having a mandatory runoff coverage may result in directors’ coverage lapses the moment the company stops paying premiums due to the insolvency.

Recommendations for Indian law

It is recommended that the IRDAI should issue mandatory guidelines on D&O policy language for insolvency scenarios, requiring that conduct exclusions be individually assessed and that exclusions cannot be triggered by the mere commencement of CIRP or general financial distress. The IBC should be amended to clarify that Side A D&O proceeds paid directly to individual directors are not assets of the corporate debtor’s estate. The IRDAI should mandate carve-outs from the IvI exclusion for claims brought by resolution professionals, liquidators or creditors acting under the IBC. The IBBI should require the resolution professional to negotiate and maintain runoff extensions on behalf of the estate as a CIRP condition and require that the resolution professional audit any D&O insurance policies in force, assess their adequacy for insolvency-related claims and report the results to the Committee of Creditors. SEBI’s mandatory D&O insurance requirement should be extended to all listed entities with prescribed minimum limits and Side A sub-limits relative to market capitalisation or credit exposure.