SPAIN Trends and Developments Contributed by: Gonzalo Ardila, Margarita Morales, Fátima Mallén and Alberto Witzl, Hogan Lovells Cadwalader
since the injured third party may claim the damages indemnity, but cannot access the intuitu personae coverages of the policy. Conclusions and future prospects The judgments analysed enjoy special relevance in Spanish case law on D&O insurance and highlight the need for a review of underwriting practices in this line of business. First, the adaptation of the policies to the singularities of Spanish law is imperative, so that the figure of the legal-entity director, fully recognised by Spanish legislation, is reflected in the definition of insured. The uncritical importation of Anglo-Sax- on models generates coverage gaps that can prove extraordinarily costly.
Secondly, the contractual delimitation of the injured third party is revealed as an essential element of the D&O policy. The insurers must define precisely who can hold that status, through express, clear and understandable clauses. The absence of such delimi- tation can significantly broaden the scope of cover- age. Thirdly, the distinction between direct damage and derivative shareholder damage will gain increas- ing importance in future litigation, particularly in cor- porate groups with cross guarantees. Ultimately, these decisions underline that D&O insur- ance requires careful contractual design that takes into account the legal system in which it is to pro- duce its effects, the corporate structure of the insured group, and a correct delimitation of all the participat- ing parties.
223 I NSURANCE L I T IGATI O N 2026
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