Prior and Pending Litigation—Archived Article

October 2004

Most D&O policies contain, either within the basic policy form or added by endorsement, exclusions for claims based on or arising out of the facts and circumstances underlying litigation that has occurred or that is pending as of the inception date of the policy. Many policies also contain exclusions for claims covered by or reported under previous D&O insurance. The D&O application often contains exclusionary language regarding circumstances likely to give rise to a claim. When these other types of exclusions are present, it may appear that a prior-and-pending-litigation exclusion, like the example below, is redundant and imposes no further restriction of coverage.