Assume that your business is sued for multiple claims including negligence, defamation, and fraud arising out of the same event. Most likely, your business has a commercial general liability policy of insurance that provides coverage for negligence claims, but not intentional torts. What protections does that policy actually provide?
Although intentional acts are typically excluded from insurance policies, your business’s insurer would have a “duty to defend” your business from the negligent and intentional acts in this hypothetical. This means that the insurance company must appoint an attorney for your business at the insurer’s expense (less any applicable deductible) to defend the suit. Although a duty to defend may exist, the insurer ultimately might not be required to pay (indemnify) your business if the plaintiff were to recover a money judgment against the business for those claims based on the intentional acts. This is because Illinois law is clear that an insurer’s duty to defend its insured is broader than the duty to indemnify the insured.
As for the duty to defend, if the facts alleged in the underlying complaint fall within, or potentially within, the policy’s coverage, the insurer’s duty to defend is triggered. The insurer’s duty to defend is triggered even if the allegations in the complaint are groundless, false, or fraudulent, and even if only one of several of the plaintiff’s theories is within the potential coverage of the policy. In the hypothetical lawsuit, even if some of the claims alleged against your business ultimately are not covered, the insurer likely has a duty to defend against both the covered and uncovered claims. However, the duty to indemnify only arises if the insured has a judgment against it on an underlying claim and that the insured’s activity is covered by the policy. Thus, if judgment is entered against the business on an uncovered claim, the insurer will not have a duty to pay that judgment entered against your business even though its appointed attorney defended the claim.
Having an experienced attorney evaluate your business’s insurance policy for coverage is critical. For more information regarding these or similar issues, please contact Roenan Patt at email@example.com or (312) 368-0100.
The board of directors made the decision to acquire a company for $100 million. The negotiations and the due diligence process were difficult, but the board finally approved the acquisition and the transaction closed. After closing, the acquirer determined that the value of the acquired company’s assets were greatly overstated and the acquiring company took a loss on its books. The shareholders of the acquiring company have met to determine whether to file litigation against the directors.
In Illinois, courts have ruled that the “business judgment rules acts to shield directors who have been diligent and careful in performing their duties from liability for honest errors or mistakes of judgment”. Absent “bad faith, fraud, illegality or gross overreaching, the courts are not at liberty to interfere with the exercise of business judgment by corporate directors”. Thus, just because a board made the “wrong” business decision, does not mean that the directors are liable to the shareholders.
While the courts are reluctant to make business judgments for companies, this does not always prevent shareholders from “second guessing” decisions of the board. Illinois law provides that a corporation may indemnify its directors and officers from any liability if such director or officer “acted in good faith and in a manner he or she believed to be in, or not opposed to, the best interests of the corporation”. Since the law is permissive, in order for a corporation to attract quality persons to serve as an officer or director, it may wish to agree to indemnify such person in such situations. It is important from the corporation’s perspective to draft such an agreement, in a manner that, while protecting the “well-intended” officer or director, also protects the company. If you have any questions about directors’ and officers’ liability to the corporation, or would like to discuss your company’s legal concerns, please feel free to contact the business lawyers at Levin Ginsburg.
For more information, please contact:
Morris R. Saunders at: (312) 368-0100 or firstname.lastname@example.org