BGH on the Exclusion of D&O Insurance Cover for Knowing Breach of Duty

In a judgment of November 2025, the Federal Court of Justice (Bundesgerichtshof, BGH) set narrower limits on the exclusion of cover under D&O insurance, to the benefit of companies and managers (BGH of 19.11.2025 – IV ZR 66/25).

In brief: the insolvency administrator had brought a claim against the sole managing director of an insolvent GmbH personally because, after the onset of insolvency, he had still made payments contrary to (then) § 64 GmbHG, now § 15b InsO. The dispute subsequently also spilled over to the managing director’s D&O insurance.

The insurer refused to pay, relying on the fact that its general insurance conditions (Allgemeine Versicherungsbedingungen) exclude indemnification in the event of “intentional causation of loss or knowing deviation from the law” etc.

In this regard the BGH held that payments made after the onset of insolvency do not automatically cause insurance cover to lapse. Rather, each individual payment must be examined separately as to whether it (objectively) violates a prohibition and, in addition, whether (subjectively) the managing director knew that this specific payment was impermissible and nevertheless caused it. This does not follow, as a by-product, from a breach of the duty to file for insolvency under § 15a InsO.

As a consequence, the prospects improve for managing directors who are accused of breaches of duty to keep these covered by D&O insurance.

Status: 20 October 2026

NIETZER Rechtsanwälte · Attorneys at Law (USA) · Heilbronn · www.unternehmensrecht.com

This article is for general information purposes and does not replace legal advice in an individual case.