(f) for emotional distress or for injury from libel, slander, defamation, disparagement, or a violation of a person's right of privacy; …

(k) for bodily injury, sickness, disease, or death of any person, or damage to or destruction of any tangible property, including the loss of use thereof;

National Union 70320 (4/98)

Because D&O policies provide a form of errors-and-omissions-liability coverage, it is reasonable that the policy forms exclude claims based on bodily injury, property damage, and personal injury, all of which may be at least partially insured under commercial general, automobile, and umbrella liability policies.

The language used in D&O policies to exclude bodily injury, personal injury, property damage, and advertising injury rarely matches exactly the language that grants such coverage under the standard ISO CGL policy. Some D&O policies exclude an extensive list of injuries; others exclude only a handful. The following side-by-side comparison of the National Union exclusion shown previously and definitions contained in the 2001 version of the ISO CGL policy coverage grant illustrates this point.

D&O insurers may not necessarily intend to exclude exactly that which is covered by the CGL policy. In fact, there appears to be several potential overlaps in coverage. For example, the property damage exclusion in the National Union D&O policy noted previously closely matches the standard CGL insuring agreement as respects damage to or destruction of tangible property including loss of use thereof. However, the exclusion is silent regarding loss of use of tangible property that is not physically injured, thereby creating a potential overlap of coverage with the CGL policy. Such overlaps in coverage also may exist with respect to certain types of personal and advertising injury.

Coverage under a D&O policy is generally broader than coverage under the standard CGL policy, especially if the CGL policy contains endorsements precluding coverage for claims based on personal and advertising injury (CG 21 38), abuse or molestation (CG 21 46) or employment-related practices (CG 21 47). Obviously, D&O coverage for any claim would be subject to other policy provisions and would have to be based on a wrongful act by an insured individual.

There are other notable characteristics of the wording of these exclusions. Consider these two examples:

The Underwriter shall not be liable for Loss on account of any Claim made against any Insured Person:

5.  based upon, arising out of or attributable to bodily injury, mental anguish, emotional distress, sickness, disease or death of any person or damage to or destruction of any tangible property including loss of use thereof;

Steadfast Ins. Co. STF-DO-109-A (CW) (12/95)