GERMANY Trends and Developments Contributed by: Oliver Sieg, Helmut Katschthaler, Philipp Koch and Charlott Kujath, Noerr
financial lines insurance and her recent work includes representing a policyholder in a fidelity insurance dispute and insurance syndicates in a cross-border political risk insurance case.
Noerr PartG mbB Speditionstrasse 1 D-40221 Duesseldorf Germany Brienner Straße 28 D-08333 Munich Germany Tel: (+49) 211 49986220 Fax: (+49) 211 49986100 Email: Oliver.sieg@noerr.com Web: www.noerr.com
In an ever-changing risk landscape, insurance must – and does – adapt. Current trends and megatrends impact both traditional insurance lines, such as prod- uct liability or property insurance, and more modern products, such as D&O insurance and even younger W&I or cyber-insurance. Digital transformation, cli- mate change, and geopolitical instability are certainly among the key drivers behind creating and shaping insurance terms and products, rethinking underwriting practices, and, of course, coverage disputes. Current State of D&O Insurance D&O (Directors & Officers) insurance entered the Ger- man market more broadly in the early 2000s, is now well-established, and serves as a cornerstone of the insurance programmes of large corporations and companies listed on the German stock market. The prevalence of D&O insurance in small and medium- sized businesses may be lower, but it is steadily rising. Case Law Tipping Towards Questions of Scope of Coverage Initially, the Federal Supreme Court ( Bundesger- ichtshof ) delivered several landmark decisions estab- lishing the “ground rules” of D&O insurance. With these fundamentals now largely clarified, case law has increasingly shifted towards further defining the scope of insurance coverage in specific liability and cover-
age scenarios. In particular, recent disputes have been heavily influenced by macroeconomic factors in the German market, and have led to an increase in insol- vencies. Following the Federal Supreme Court’s con- firmation in 2020 that compensation claims against managers for payments made to third parties despite insolvency and overindebtedness (Section 15b of the Insolvency Code) are covered by D&O insurance (Federal Supreme Court decision dated 18 Novem- ber 2020 – IV ZR 217/19), courts have increasingly addressed insolvency-related liability claims brought against managers by insolvency administrators. At the same time, the Federal Supreme Court has contin- ued to reinforce the position of directors and officers through recent case law: • In a 2024 decision, the Federal Supreme Court declared void standardbusiness terms in D&O insurance contracts that provided for an auto- matic termination at the end of a policy period in which the policyholder filed for insolvency (Federal Supreme Court, decision dated 18 December 2024 – IV ZR 151/23). • In 2025, the Federal Supreme Court clarified the requirements of the standard exclusion of “know- ing breach of duty”. Insurers had increasingly relied on this exclusion to deny coverage in insolvency- related disputes, arguing that a breach of “cardinal
142 I NSURANCE L I T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook