Notes on gross negligence in directors and officers’ liability insurance policies sold in Brazil

Mariana Cavalcanti Jardim

Keywords

Insurance; Gross negligence; Directors and officers civil liability; Directors and officers’ liability insurance; D&O; Brazilian Law. 

Abstract

This article aims to shed light on the thoughtless reproduction in Brazil in directors and officers’ liability insurance policies, the so-called D&O policies, of a provision aiming to exclude from coverage insured’s gross negligence. To this end, the Brazilian legal system scenario related to managers’ civil liability and their duties is detailed, focusing especially on the duties of diligence, loyalty, avoiding conflict of interest and information. The D&O insurance is examined as a mechanism capable of allocating and managing part of the risks to which managers are exposed and, only then, the managers’ gross negligence is reviewed. After a brief historical incursion into the types of negligence and the perception of intent and gross negligence in view of Brazilian Civil Law and Insurance Law, the application of the concept of gross negligence to D&O insurance policies is examined.