Directors and Officers insurance policies have long contained “insured versus insured” exclusions which prohibit directors and officers covered under the same policy from filing suit against one another. These provisions can be problematic in the bankruptcy context, specifically when courts must determine whether claims filed by or on behalf of a post-petition debtor should be covered by a policy that includes an insured versus insured provision. The author focuses on the majority and dissenting opinions in Indian Harbor Insurance Company v. Zucker to illustrate the dichotomy in approaches to insured versus insured provisions in the bankruptcy context. The author ultimately proposes that courts implement a four-step approach to determine an insured versus insured provision’s applicability when a debtor or trustee brings a claim against an insured on behalf of the estate.
11 U.S.C. § 541 and D&O Insurance: An Analysis of the "Insured versus Insured" Exclusion in a Bankruptcy Context Following Indian Harbor,
Emory Bankr. Dev. J.
Available at: https://scholarlycommons.law.emory.edu/ebdj/vol36/iss1/7