If managing directors and board members initiate payments even though the company is insolvent, they must answer for this with their private assets – even if they did not knowingly act and have taken out a manager liability insurance (D&O). This is the result of a recent ruling by the Düsseldorf Higher Regional Court (I-4 U 93/16), about which the media such as Legal Tribune Online and the Handelsblatt have reported in recent days: The judges decided that D&O Insurers do not have to step in in such cases.
Principle verdict also applies to members of the Supervisory Board
In a judgement, an insolvency administrator had filed liability claims against a managing director because the company had still transferred money despite its maturity for insolvency. The manager switched on her insurance, but she refused to pay. And rightly so, as the judges now decided: although it is not certain whether the company manager knew about the maturity for insolvency, this is not a D&O case (the insurance company would not have had to step in anyway in case of intent). Lawyers describe the decision as a “judgement in principle” that significantly increases the personal risk of board members, managing directors and “in the end even of supervisory boards”.