Gerechtshof Amsterdam, 17-03-2020, ECLI:NL:GHAMS:2020:802, 200.267.493/01

Imtech heeft als verzekeringnemer (policyholder) door tussenkomst van AON Risk Solutions een Directors & Officers-aansprakelijkheidsverzekering gesloten. De commissarissen zijn verzekerden onder deze D&O-verzekering die heeft gelopen van 1 januari 2013 tot en met 31 december 2013 (hierna: de D&O 2013). De D&O 2013 bestaat uit verschillende layers. De primaire verzekering is gesloten met AIG Europe Ltd (hierna: AIG) met een verzekerde limiet van € 25 miljoen (hierna ook: de Primary). CNA trad op als first excess insurer met een limiet van € 15 miljoen (hierna ook: de excess-verzekering).

De opbouw van de D&O 2013 in layers is als volgt:

Op de D&O 2013 zijn de General Conditions BusinessGuard D&O Premier BG Premier Non-SEC 2010 Imtech 2013 van AIG van toepassing (hierna: de algemene verzekeringsvoorwaarden). Op de door Imtech met CNA gesloten excess-verzekering zijn naast de algemene verzekeringsvoorwaarden specifieke algemene voorwaarden van toepassing volgens het model AonDANDOXS 90NL (hierna: de excess-voorwaarden).

De voor de beoordeling van het geschil relevante bepalingen in de algemene verzekeringsvoorwaarden luiden als volgt:

“ARTICLE 1 - Covers

The following Covers apply to claims first made during the policy period and reported as required by this policy.

Management Liability

The Insurer will:

(i) pay to or on behalf of each insured person any loss except to the extent that the insured person has been indemnified by the company for such loss; (...).

(...)

Non-Executive Directors Protection

The insurer will pay a separate excess limit on behalf of each of the policyholder’s non-executive directors serving during the policy period for any loss, subject to the sub-Limit specified in item 5 of the schedule.

(...)

Investigations The insurer will pay the investigation costs of each insured person arising from an investigation.

(...)

ARTICLE 2 - Extensions

(...)

Lifetime Run Off for Retired Insured persons

The insurer will provide an unlimited discovery period for any insured person who resigns or retires, other than by reason of a transaction, prior to or during the policy period provided that:

a) this policy is not renewed or replaced with management liability cover; or

b) where this policy is renewed or replaced with management liability cover, such renewal or replacement policy does not provide an extended discovery provision of at least 6 years for such insured persons.

(...)

ARTICLE 3 - Exclusions

The insurer shall not be liable under any Cover or Extension for any loss:

Conduct

arising out of, based upon or attributable to:

(i) (...)

(ii) the committing of any deliberately dishonest or deliberately fraudulent act, in the event that either of the above is established by final adjudication of a judicial or arbitral tribunal against any insured or by any formal written admission by any insured.

For the purposes of determining the applicability of this exclusion 3.1, the conduct of any insured shall not be imputed to any other insured person.

(...)

ARTICLE 4 - Definitions

(...)

Claim

(i) (a) a written demand, or

(b) a civil, regulatory, mediation, administrative or arbitration proceeding including any counter-claim, seeking compensation or other legal remedy (...)

made or brought against an insured person alleging a wrongful act;

(...)

(iii) an investigation with respect to insured persons; (...).

(...)

Defence costs

(i) reasonable fees, costs and expenses incurred, with the insurer’s prior written consent (which shall not unreasonably be withheld or delayed), by or on behalf of an insured after a claim is made, in the investigation, defence, settlement or appeal of such claim. (...)

Discovery Period

a period immediately following the expiration of the policy period during which written notice may be given to the insurer of a claim first made during such period:

(i) for a wrongful act occurring prior to the expiry of the policy period; or

(ii) in the case of an investigation (...) matters which occurred or arose prior to the expiry of the policy period.

(...)

Excess Limit

The amount specified in item 5 of the schedule that is available to the insured through a Cover or Extension of this policy when

(i) the limit of liability;

(ii) all other applicable management liability insurance whether specifically written as excess over the limit of liability of this policy or otherwise; and

(iii) all other indemnification for loss available to such insured,

have all been exhausted.

(...)

Insured

any company and any insured person.

Insured Person

any natural person who was, is or during the policy period becomes:

(i) a director or officer (...) of a company; (...).

(...)

Insurer

AIG Europe Limited, Netherlands.

Investigations

any formal hearing, examination, investigation or inquiry into the affairs of a company or outside entity, or an insured person of such entity by an official body once an insured person:

(a) is required to attend before, procedure documents to answer questions by or attend interviews with the official body; or,

(b) is identified in writing by an investigating official body as a target of the hearing, examination or inquiry (...).

Investigation Costs

The reasonable fees, costs and expenses, incurred by or on behalf of an insured person for the principal purpose of representing an insured person, with the insurer’s prior written consent, of any legal advisor retained in connection with an investigation by or on behalf of an insured person. (...).

Limit of Liability

the amount specified in item 3 of the schedule.

Loss Any amount which the insured is legally liable to pay resulting from a claim made against an insured person including defence costs (...).

Loss shall also include investigation costs (...), pre-investigation costs (...).

(...)

Official Body

Any regulator, government body, government agency, official trade body, or other body that is empowered by statute to investigate the affairs of a company or an insured person.

ARTICLE 5 - Claims

The insurance covers under this policy are afforded solely with respect to claims first made against an insured during the policy period or an applicable discovery period (...).

Related Claims or Circumstances

If notice of a claim or circumstance is given as required by this policy, then any subsequent claim, alleging, arising out of, based upon or attributable to the facts or acts, errors or omissions alleged in that claim or notice of circumstance, shall be deemed to have first been made at the same time as that claim was first made or notice of circumstance was first reported, and reported to the insurer at the time the required notices were first provided.

Any claim arising out of, based upon or attributable to (i) the same or similar originating cause or wrongful act, (ii) one matter or transaction, or a number of matters or transactions involving the same or similar underlying source, (iii) a series of continuous, repeated, related or connected wrongful acts, or (iv) the same or similar originating causes or wrongful acts involving a number of matters or transactions, whether or not committed by more than one insured and whether directed to or affecting one or more person or entity, shall be considered a single claim for the purposes of this policy.

Defense & Settlement

All insureds shall at their own cost, render all reasonable assistance to and cooperate with the insurer in the investigation, defence, settlement or appeal of a claim or circumstance, and provide the insurer with all relevant information pertaining to any claim or circumstance, as the insurer may reasonable require. In the event of any claim, each insured shall take reasonable steps to reduce or diminish any loss.

The insured shall have the obligation to defend and contest any claim made against him. The insurer shall be entitled to participate fully in the defence and in the negotiation of any settlement that involves or appears reasonably likely to involve the insurer.

Consent

The insured shall not admit or assume any liability, enter into any settlement agreement, or consent any judgment or incur any covered costs and expenses (except with respect to Cover 1.7 – Emergency Costs) without the prior written consent (which shall not be unreasonably delayed or withheld) of the insurer. Only liabilities, settlements, judgments, costs and expenses, which have been consented to by the insurer, and only those claims defended in accordance with this policy shall be recoverable as loss under this policy. (...).

Payment of Costs

The Insurer will advance all covered costs and expenses promptly after sufficiently detailed invoices for those costs and expenses are received and accepted for payment by the insurer.

(...)

ARTICLE 6 - Limit & Retention

Limit of Liability

The total amount payable by the insurer under this policy shall not exceed the limit of liability, except with respect to Cover 1.3 – Non-Executive Directors Protection, where the insurer’s liability is excess of and in addition of the limit of liability. (...).

(...)

ARTICLE 7 - General Provisions

Non-Rescindability

This policy is not avoidable or rescindable in whole or in part and the insurer shall have no other remedy with respect to any misrepresentation or non-disclosure in connection with this policy except with respect to insurance Cover 1.2 - Company Securities, or for any fraudulent misrepresentation or fraudulent non-disclosure of any insured, where established by final adjudication of a judicial or arbitral tribunal, or any formal written admission by or on behalf of any insured.

(...)

Disputes

Except as otherwise specifically provided, any dispute regarding any aspect of this policy or any matter relating to cover thereunder which cannot be resolved by agreement within 30 days, will be referred to binding arbitration by either party, upon giving seven (7) days notice to the other, in the ICC (International Chamber of Commerce) International Court of Arbitration.

The insurer and insured will be responsible for their own costs and expense incurred in the arbitration.

Notice & Authority

The policyholder shall act on behalf of all insureds in connection with all matters relevant to this policy. In the event of a transaction, receivership, bankruptcy, liquidation or administration of the policyholder, each insured shall act on their own behalf.”

“III limit of liability and depletion of underlying limits of liability

The limit of liability designated in item 4 of the Schedule is the Insurer’s maximum aggregate liability for all covered loss under this policy.

1. This policy shall apply as excess in the event of the exhaustion or reduction of the limit(s) of liability of the Underlying policies as result of actual payment of losses there under.

2. This policy shall apply as primary, for subsequent losses, in the event of the exhaustion of the limit(s) of the Underlying policies as result of actual payment of losses there under. Any retention specified in the Primary policy shall imposed under the policy as to each claim; otherwise no retention shall be imposed under this policy.

3. Any covered losses under the Underlying policies which for any reason remain unpaid, in whole or in part, by the insurers of the Underlying policies shall be retained by the Insureds. The Insurer shall nevertheless recognize this retention by the Insured as contributing to the exhaustion or reduction of the limit of the Underlying policies and the attachment point of this policy shall not be altered as such in this respect.

(...)”

Op 7 oktober 2014 is tevens een tweede schikking tot stand gekomen, waarbij onder meer AIG, Imtech, de voormalige raad van bestuur en de voormalige leden van de raad van commissarissen – waaronder de commissarissen – partij zijn. Op grond van deze schikking dienden AIG en Imtech ieder € 12,5 miljoen aan het schikkingsfonds bij te dragen. Aan AIG is met deze schikking finale kwijting verleend voor haar verplichtingen uit hoofde van de D&O 2013. In deze schikking is, voor zover hier van belang, het volgende vastgelegd:

“WHEREAS:

(...)

(G) In anticipation of the VEB Shareholder Settlement Agreement, the Imtech Defendants and Imtech Deutschland on one hand and AIG on the other hand are desirous of achieving resolution of all issues between them with regard to the AIG D&O Insurance, all on the terms as set forth below (the “Agreement’). Only by executing this Agreement and under the terms of this Agreement AIG will consent with the insured entering into the VEB Shareholder Settlement Agreement as meant in article 5.4 of the AIG D&O lnsurance, and with a potential settlement with other claimants including Deminor and SBGBI as foreseen therein.

(H) In anticipation of the VEB Shareholder Settlement Agreement, the Imtech Defendants and Imtech Deutschland on one hand and AIG on the other hand wish to enter into a settlement agreement with respect to the amount AIG is willing to contribute to the funding of a settlement with claimants including constituencies of VEB, Deminor and SBGBI. AIG will contribute to a settlement up to the amounts laid down in this agreement, taking into account the fact that at this stage it is uncertain whether liability of the insureds under the AIG D&O Insurance will be established and the fact that Imtech itself will also make a contribution to the settlement.

(I) The settlement between the Parties is made under the assumption that in the event liability of one or more Insureds would be established the amounts claimed by the claimants should be covered under the AIG D&O Insurance, up to an amount equal to the total sum insured under the AIG D&O Insurance.

(...)