Managing directors of a GmbH often assume that there are no liability risks for you personally, especially if the company has taken out a so-called D&O insurance to protect you. However, this notion is often incorrect, as is a decision of the Higher Regional Court of Düsseldorf, judgment of July 20, 2018, Az. – I-4 U 93/16 – shows.
The OLG Düsseldorf decided there that a D&O insurance does not cover the liability of the GmbH managing director due to illegal payments made after the insolvency maturity, as this does not mean the claim of an insolvent company against its insured managing director for reimbursement of such payments of the company according to § 64 GmbH- Act (now Section 15 b InsO) is recorded.
The background to this is that, in accordance with Section 64 GmbHG (now Section 15 b InsO), a managing director is personally liable with his private assets for those payments made by the company to third parties after the company became insolvent or overindebted. In such cases, the insolvency administrator usually demands the money back from the managing director.
The OLG Düsseldorf now takes the view that a claim for repayment of the insolvency administrator according to § 64 GmbHG (now § 15 b InsO) is basically not a claim covered by the insurance contract, since the liability claim according to § 64 GmbHG (now § 15 b InsO) with the insured claim for damages due to financial loss is not comparable.
Rather, it is a “special kind of compensation claim” that serves the interests of all creditors of an insolvent company, since these illegal payments would only affect the insolvency rate of the other creditors of the company. The company itself does not suffer any financial loss from these payments after it is ready for bankruptcy, since the payments are usually made to satisfy a liability of the company. However, the D&O insurance is not designed to protect the interests of the creditors.
This shows once again how important it is for managing directors of a GmbH to always carefully check in the event of a crisis whether the company has become insolvent or over-indebted.
Peter Werner
Specialist lawyer for commercial and corporate law
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