On November 19, 2025 (Ref. IV ZR 66/25), the Federal Court of Justice developed interesting arguments regarding the exclusion of risk from D&O insurance. The highest courts in Austria, Liechtenstein, and Switzerland could use this as a guide.
The Federal Court of Justice has clarified that the exclusion of risk for “knowing breaches of duty” in the general insurance conditions of a financial loss liability insurance policy (ULLA) must be interpreted narrowly.
Key points of the decision:
Insured event: The exclusion only applies if the breach of duty that triggers the liability claim was committed knowingly. Other breaches of duty – even if they pursue the same purpose – are not covered.
No extension: A breach of the obligation to file for insolvency (section 15a InsO) is not sufficient to exclude insurance coverage for claims under section 64 GmbHG (old version).
Positive knowledge required: Conditional intent or “conscious concealment” is not sufficient. It must be established that the managing director was positively aware of the breached duty and was conscious of the breach of duty.
Review in the coverage process: Each individual payment made after the onset of insolvency must be reviewed to determine whether it was prohibited and whether the managing director was aware of this.