Does a parent organization's directors and officers (D&O) policy cover a subsidiary or affiliate that runs social events in New York?
A parent organization's D&O policy covers a New York affiliate and the people who run its events only if the policy's insured-entity, insured-person, subsidiary or outside-entity provisions include them. In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals placed on the insured the burden of showing that a claim falls within the coverage, while an insurer relying on an exclusion must show that the exclusion applies. In our review we found no New York statute or appellate decision deciding which affiliates a D&O policy covers, so the conservative course is to have the affiliate named as an insured by endorsement.
Insured status and the burden of proof. In Town of Massena, the Court of Appeals applied an executive liability policy under which insured capacity meant acting as a director or officer. For the duty to defend, the Court stated that an insurer relying on an exclusion must show that the complaint's allegations can be interpreted only to exclude coverage. The insured, by contrast, must show that the claim falls within the coverage: once the insurer asserted its exclusion, the hospital defendants had the burden of showing that the alleged conduct was covered, and the hospital failed to carry it because the complaint did not allege that the doctors acted in their insured capacity as officers or directors. How a particular policy defines its insured entities and insured persons is a question of that policy's wording.
Insured status is not coverage for every claim. The policy in Town of Massena also excluded loss arising out of or related to bodily injury, defamation and similar torts. On our reading, being an insured under a D&O policy therefore does not by itself establish coverage for an injury at an event. Written confirmation that addresses both insured status and the kinds of claims covered, including any bodily injury exclusion and the liability policy expected to respond to event injuries, covers the gap that insured status leaves open.
Subsidiaries and later-formed entities. Commentary on D&O policy structure describes the typical policy as covering the first named insured and its subsidiaries, and notes that whether an entity counts as a subsidiary can depend on the parent's ownership percentage. The same commentator describes after-acquired subsidiary provisions that often extend coverage to a new subsidiary only after written notice of its full particulars, sometimes with additional premium. On our reading, an affiliate formed during a policy year may fall outside the parent's coverage until the policy's provisions on new entities are met.
Not-for-profit affiliates. The Not-for-Profit Corporation Law defines an affiliate of a corporation as any entity controlled by, or in control of, that corporation. That definition is written for the statute. On our reading, it does not override a policy's own subsidiary definition, and a definition keyed to ownership percentage may fit poorly a member-based not-for-profit corporation that has no owners in the usual sense. Whether such an affiliate is covered then depends on whether the policy also counts control, such as the right to elect a majority of the board.
Insured persons and the capacity in which they act. Commentary explains that individuals are insured only for actions in an insured capacity, and that capacity questions are hardest when a person's actions were connected with a related but separate entity. On our reading, a parent organization's officer who also runs an affiliate's events may face a capacity dispute under the parent's policy unless the affiliate and its positions are insured.
Shared limits. Commentary published in 2026 notes that a policy limit is not necessarily available to directors personally, because multiple claims or claims against the company itself may erode it.
Service on an affiliate's board at the parent organization's request. For actions other than those brought by or in the right of the corporation itself, Business Corporation Law § 722(a) permits a corporation to indemnify a director or officer sued because of service, at the corporation's request, for another corporation or enterprise, if the person acted in good faith for a purpose not opposed to the corporation's best interests and, in a criminal action or proceeding, also had no reasonable cause to believe the conduct was unlawful. Not-for-Profit Corporation Law § 722(a) gives a not-for-profit corporation the same power on the same conditions. These statutes authorize indemnification; they do not require a policy to cover outside service. A publication by Marsh, an insurance broker, describes outside directorship coverage as most commonly applying excess of both the outside entity's indemnification and the outside entity's own D&O insurance. The same publication states that the coverage applies only to roles held at the company's specific direction or request , is typically blanket for nonprofit entities , covers the individual rather than the outside entity itself , and typically shares the limit of the overall D&O program. On our reading of that description, outside-entity coverage under a parent's policy would protect individuals the parent placed on an affiliate's board, but not the affiliate.
Sources for this answer
Kevin LaCroix's D&O Diary commentary states that the typical D&O policy covers the insured entity, usually the first named insured, and its subsidiaries, and that whether an entity is a subsidiary can depend on the parent's ownership percentage.
As for entities insured under the D&O policy, the typical policy provides coverage both for the insured entity (usually the first named insured) and its subsidiaries. Questions can arise whether or not an entity is a subsidiary (depending on the corporate parent’s ownership percentage).
See Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).
Kevin LaCroix's D&O Diary commentary states that individuals are insured under a D&O policy only for actions in an insured capacity, and that capacity questions can be difficult when the individual's actions were connected with a related but separate entity.
The individuals are insured only for actions in an insured capacity – that is, in connection with their service as a director or officer of the company. These questions can be difficult when the individual has multiple connections with the insured company – as an investor, for example, or as a representative of a private equity or venture capital firm, or where the individual’s actions were in connection with a joint venture or other related but separate entity.
See Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).
A publication by Marsh, an insurance broker, states that outside directorship coverage applies only to a role held at the company's specific direction or request, so it does not reach self-chosen board seats such as on a local golf club or homeowners' association.
To be covered, your role with the outside entity must be at the specific direction or request of your company. Therefore, your company’s D&O policy does not extend to protect you when, for instance, you serve on the board of a local golf club or homeowner’s association because these are not company-requested roles.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as defining insured capacity to mean acting as a director or officer.
“Insured Capacity” means as a director or officer.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that, once the insurer asserted its exclusion, the hospital defendants had the burden of showing that the alleged conduct fell within the coverage, and they had not made that showing.
Once the insurance company asserted the exclusion, the hospital defendants had the burden of showing that the conduct alleged was covered and they have failed to make that requisite showing.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals stated that, when an insurer relies on an exclusion to deny a defense, it bears the burden of showing that the complaint's allegations can be interpreted only to exclude coverage.
When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325 [1974]; Technicon, 74 NY2d at 73-74 ).
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that the hospital had not met its burden of showing that the remaining tortious-interference conduct was covered, because the complaint did not allege that the doctors acted in their insured capacity as officers or directors.
The hospital has not, however, met its burden of showing that the tortious conduct is covered. Franzon’s tortious interference claims against the hospital are centered around three physicians’ failure to refer patients to him. This conduct could only occur in the doctors’ respective roles as members of an insurance network. Franzon’s complaint, however, does not allege whether the doctors’ conduct in question occurred while they were acting in their “insured capacity” as officers or directors or otherwise.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as excluding loss arising out of or related to bodily injury, libel, slander, defamation and similar torts.
The policy limits this coverage by excluding, among other things, any loss “arising out of’ or otherwise related to “bodily injury * * * libel, slander, defamation of character” or similar torts.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
Kevin LaCroix's D&O Diary commentary states that after-acquired subsidiary provisions often require written notice to the insurer of the new subsidiary's full particulars for coverage to extend to it, and that the insurer may also require additional premium.
These after-acquired subsidiary provisions often require the policyholder to notify the insurer in writing of the “full particulars of the new Subsidiary,” in order for the policy’s coverage to extend to the new subsidiary. Private company policies often have similar notice requirements if the company conducts a public securities offering. In both instances, the insurer may also require the payment of additional premium.
See Kevin LaCroix, Executive Protection: D&O Insurance – The Policyholder’s Obligations, The D&O Diary (Aug. 24, 2010).
Not-for-Profit Corporation Law § 102(a)(19) defines an affiliate of a corporation as any entity controlled by, or in control of, that corporation.
(19) An “affiliate” of a corporation means any entity controlled by, or in control of, such corporation.
See N.Y. Not-for-Profit Corp. Law § 102(a)(19) (2026).
Commentary by Scott N. Sherman and Edgar A. Neely IV states that a D&O policy limit does not necessarily provide that amount of protection to directors personally, because multiple claims or claims against the company may erode it.
A $15 million policy does not necessarily provide $15 million of protection to directors personally. Multiple claims or claims against the company itself may erode the available limit.
See Scott N. Sherman & Edgar A. Neely IV, Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess, The D&O Diary (Sept. 24, 2026).
Business Corporation Law § 722(a) permits a corporation to indemnify a director or officer made a party to an action other than one by or in the right of the corporation, including because of service at the corporation's request for another enterprise, if the person acted in good faith for a purpose reasonably believed to be in, or for outside service not opposed to, the corporation's best interests and, in a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.
(a) A corporation may indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.
See N.Y. Bus. Corp. Law § 722(a) (2026).
Not-for-Profit Corporation Law § 722(a) permits a not-for-profit corporation to indemnify a director or officer made a party to an action other than one by or in the right of the corporation, including because of service at the corporation's request for another enterprise, if the person acted in good faith for a purpose reasonably believed to be in, or for outside service not opposed to, the corporation's best interests and, in a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.
(a) A corporation may indemnify any person, made, or threatened to be made, a party to an action or proceeding other than one by or in the right of the corporation to procure a judgment in its favor, whether civil or criminal, including an action by or in the right of any other corporation of any kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.
See N.Y. Not-for-Profit Corp. Law § 722(a) (2026).
A publication by Marsh, an insurance broker, states that D&O policies often contain an outside directorship liability extension that most commonly applies excess of the outside entity's indemnification and the outside entity's own D&O program.
D&O policies often contain an ODL extension that most commonly works on a “double excess basis,” where a company’s ODL coverage applies excess of the outside entity’s indemnification to the director or officer and the outside entity’s own D&O program.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
A publication by Marsh, an insurance broker, states that outside directorship coverage is typically blanket for nonprofit entities, which need not be specifically scheduled on the policy.
Blanket coverage typically is provided for nonprofit entities; this means that these entities do not need to be specifically scheduled on the policy.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
A publication by Marsh, an insurance broker, states that outside directorship coverage does not cover the outside entity itself and covers only the individual director or officer.
ODL coverage does not cover the entity itself; it only covers you as an individual director or officer of the company.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
A publication by Marsh, an insurance broker, states that outside directorship coverage typically shares the limit of the overall D&O program.
Because ODL coverage typically shares the limit of the overall D&O program, it is critical that your company understands the full extent of its ODL exposures.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
May a New York corporation buy directors and officers (D&O) insurance, and what must it disclose when it does?
Under Not-for-Profit Corporation Law § 726(a) and Business Corporation Law § 726(a), a New York corporation may buy insurance that reimburses its indemnification of directors and officers and that covers them directly. A corporation that buys or renews that insurance must mail a statement describing it within the time and to the persons that § 725(c) specifies.
Each corporation's power to buy its own D&O insurance. Not-for-Profit Corporation Law § 726(a) and Business Corporation Law § 726(a) give a corporation power to buy insurance that reimburses its indemnification of directors and officers and that covers them directly, including where indemnification is not permitted if the policy has a retention and co-insurance acceptable to the superintendent of financial services. Under Not-for-Profit Corporation Law § 726(b), that insurance may pay nothing other than defense costs when a final adjudication establishes active and deliberate dishonesty material to the claim or a personal gain to which the person was not entitled. A not-for-profit corporation that buys or renews such insurance must mail, within the time and to the persons that § 725(c) specifies, a statement naming the carrier, contract date, cost and positions insured and explaining any sums paid under an indemnification insurance contract that were not previously reported to members. A business corporation has a parallel duty, measured against statements previously made to shareholders.
Sources for this answer
Not-for-Profit Corporation Law § 726(a) gives a corporation power, subject to § 726(b), to buy insurance reimbursing its indemnification of directors and officers, covering directors and officers where indemnification is permitted, and covering them where it is not if the policy provides a retention and co-insurance acceptable to the superintendent of financial services.
(a) Subject to paragraph (b), a corporation shall have power to purchase and maintain insurance: (1) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (2) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (3) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of financial services, for a retention amount and for co-insurance.
See N.Y. Not-for-Profit Corp. Law § 726(a) (2026).
Business Corporation Law § 726(a) gives a corporation power, subject to § 726(b), to buy insurance reimbursing its indemnification of directors and officers, covering directors and officers where indemnification is permitted, and covering them where it is not if the policy provides a retention and co-insurance acceptable to the superintendent of financial services.
(a) Subject to paragraph (b), a corporation shall have power to purchase and maintain insurance: (1) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (2) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (3) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of financial services, for a retention amount and for co-insurance.
See N.Y. Bus. Corp. Law § 726(a) (2026).
Not-for-Profit Corporation Law § 726(d) requires a corporation that purchases or renews insurance under § 726 to mail, within the time and to the persons that § 725(c) provides, a statement specifying the carrier, contract date, cost, corporate positions insured and sums paid under the insurance not previously reported to members.
(d) The corporation shall, within the time and to the persons provided in paragraph (c) of section 725 (Other provisions affecting indemnification of directors and officers), mail a statement in respect to any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to members, paid under any indemnification insurance contract.
See N.Y. Not-for-Profit Corp. Law § 726(d) (2026).
Business Corporation Law § 726(d) requires a corporation that purchases or renews insurance under § 726 to mail, within the time and to the persons that § 725(c) provides, a statement specifying the carrier, contract date, cost, corporate positions insured and sums paid under the insurance not previously reported to shareholders.
(d) The corporation shall, within the time and to the persons provided in paragraph (c) of section 725 (Other provisions affecting indemnification of directors or officers), mail a statement in respect of any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to shareholders, paid under any indemnification insurance contract.
See N.Y. Bus. Corp. Law § 726(d) (2026).
Not-for-Profit Corporation Law § 726(b) bars insurance under § 726(a) from paying anything other than defense costs for a director or officer where a final adjudication establishes active and deliberate dishonesty material to the cause of action or a personal gain to which the person was not legally entitled, or for a risk whose insurance New York insurance law prohibits.
(b) No insurance under paragraph (a) may provide for any payment, other than cost of defense, to or on behalf of any director or officer: (1) if a judgment or other final adjudication adverse to the insured director or officer establishes that his acts of active and deliberate dishonesty were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (2) in relation to any risk the insurance of which is prohibited under the insurance law of this state.
See N.Y. Not-for-Profit Corp. Law § 726(b) (2026).
Are uncompensated directors and officers of a New York not-for-profit organization protected from personal liability?
Subject to its statutory exceptions, Not-for-Profit Corporation Law § 720-a protects uncompensated directors, officers, key persons and trustees of § 501(c)(3) organizations from third-party liability based solely on conduct in office, unless that conduct was gross negligence or intended to cause the resulting harm.
Section 720-a protects specified uncompensated officeholders of 501(c)(3) organizations. Not-for-Profit Corporation Law § 720-a protects an uncompensated director, officer, key person or trustee of an organization described in section 501(c)(3) of the Internal Revenue Code from liability to anyone other than the organization, where the liability is based solely on conduct in the execution of that office and the conduct was not gross negligence or intended to cause the harm. The protection does not apply to actions under §§ 719 and 720, to actions by the attorney general or, for a charitable trust, to actions by a beneficiary against a trustee. On our reading, a social club organized under section 501(c)(7) or an association organized under section 501(c)(4) gets no protection from § 720-a, so its volunteer directors depend more heavily on indemnification and insurance.
Sources for this answer
Not-for-Profit Corporation Law § 720-a provides that, except under §§ 719 and 720 and in actions by the attorney general or certain trust beneficiaries, an uncompensated director, officer, key person or trustee of a section 501(c)(3) organization is not liable to anyone other than the organization for conduct in office unless that conduct was gross negligence or intended to cause the harm.
Except as provided in sections seven hundred nineteen and seven hundred twenty of this chapter, and except any action or proceeding brought by the attorney general or, in the case of a charitable trust, an action or proceeding against a trustee brought by a beneficiary of such trust, no person serving without compensation as a director, officer, key person or trustee of a corporation, association, organization or trust described in section 501 (c) (3) of the United States internal revenue code shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer, key person or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability.
See N.Y. Not-for-Profit Corp. Law § 720-a (2026).
When must a claim be reported under a claims-made directors and officers (D&O) policy issued in New York?
A claims-made D&O policy issued in New York may require claims to be made within the policy period, a renewal or an extended reporting period, a deadline the First Department enforces regardless of prejudice to the insurer. For a policy subject to 11 NYCRR Part 73, a claim is first made when the insurer receives written notice of a claim or suit, although the policy may instead use written notice of an incident as the trigger. The conservative course is to give the insurer written notice of every claim, and of any incident the policy allows to be reported, within the policy's deadline.
Claims-made coverage. New York's claims-made regulation bars claims-made coverage except as it allows, and it lists directors and officers liability among the coverages that may be written on a claims-made basis. Commentary describes the usual D&O notice condition as requiring notice of a claim within a set number of days or as soon as practicable.
Late notice and the reporting deadline. Insurance Law § 3420(a)(5) requires policies within § 3420(a) to provide that late notice does not invalidate a claim unless the delay prejudiced the insurer, but it lets a claims-made policy require that the claim be made during the policy period, any renewal or any extended reporting period. The Department of Financial Services (DFS) reads the prejudice standard as not applying to notice given under a claims-made policy after the policy period, its renewal and any extended reporting period have expired. In Certain Underwriters at Lloyd's London v. Advance Transit Co., the Appellate Division, First Department, held that a claims-made policy can set a definite reporting period irrespective of prejudice , and it held a claim reported outside the policy period and the extended reporting period untimely.
When a claim is first made. For a policy subject to Part 73, a claim is deemed first made when the insurer receives written notice of a claim or suit from the insured or a third party, although the insurer may use written notice of an incident as the coverage trigger, and the retroactive date cannot be changed during the claims-made relationship and any extended reporting period. On our reading, the policy's claim trigger, any incident-reporting option and its retroactive date together decide which earlier acts a renewal or an extended reporting period reaches.
Late notice that was not reasonably possible. For a policy and claim within Insurance Law § 3420(a), paragraph (4) preserves a claim where timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward. The appellate decisions captured in our review do not decide whether subsection (a) reaches a D&O claim for purely financial loss, so the conservative course is to meet the policy's reporting deadline rather than rely on that exception. The Department of Financial Services applies the 2009 notice amendments to all liability policies issued or delivered in New York on or after January 17, 2009, including excess line policies.
Sources for this answer
Insurance Law § 3420(a)(5) requires a provision that late notice does not invalidate a claim unless it prejudiced the insurer, subject to paragraph (4), but allows a claims-made policy to require that the claim be made during the policy period, any renewal or any extended reporting period.
(5) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, injured person or any other claimant, unless the failure to provide timely notice has prejudiced the insurer, except as provided in paragraph four of this subsection. With respect to a claims-made policy, however, the policy may provide that the claim shall be made during the policy period, any renewal thereof, or any extended reporting period, except as provided in paragraph four of this subsection.
See N.Y. Ins. Law § 3420(a)(5) (2026).
In Certain Underwriters at Lloyd's London v. Advance Transit Co., the Appellate Division, First Department, held that under Insurance Law § 3420(a)(5) a claims-made policy can set a definite time frame for reporting claims, irrespective of prejudice, including the policy period, any renewal or any extended reporting period.
Based upon the plain and ordinary meaning of the term “however” within Insurance Law § 3420(a)(5), a claims-made policy can set a definite time frame for reporting claims, irrespective of prejudice, which can include “the policy period, any renewal thereof, or any extended reporting period.”
See Certain Underwriters at Lloyd's London v. Advance Tr. Co., 2020 NY Slip Op 06705 (1st Dep't 2020).
11 NYCRR 73.3 applies its minimum standards, except as § 73.2(d) provides, to claims-made liability policies issued or renewed in New York; it deems a claim first made when the insurer receives written notice of a claim or suit, while permitting written notice of incident as the trigger, and bars changing the retroactive date during the claims-made relationship and any extended reporting period.
Except as provided in section 73.2(d) of this Part, no claims-made liability insurance policy shall be issued or renewed in this State, unless the policy and the issuing insurer comply with the following minimum standards: (a) A claim will be deemed first made when the insurer receives written notice of a claim or suit from the insured or a third party, but this shall not preclude an insurer from utilizing written notice of incident as the trigger of coverage under the policy. (b) A retroactive date may not be changed during the term of the claims-made relationship and any extended reporting period.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(a)–(b) (2026).
11 NYCRR 73.2 bars claims-made coverage in policies issued or renewed in New York except as the section allows, and § 73.2(a) permits directors and officers liability, among other listed coverages, to be written on a claims-made basis.
Claims-made coverage any not be provided in any policy issued or renewed in this State, except that: (a) The following coverages or risks may be written on a claims-made basis: (1) completed operations liability; (2) directors and officers liability; (3) employee benefits liability; (4) errors and omissions liability; (5) excess liability; (6) fiduciary liability; (7) pollution and environmental impairment liability; (8) public entity liability; (9) products liability; (10) professional liability (including medical malpractice liability); (11) ski resort liability, subject to subdivision (f) of this section; (12) employment practices liability; and (13) risks specified in paragraph (d)(1) of this section.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2 (2026).
Kevin LaCroix's D&O Diary commentary states that a D&O policy requires the insured, as a condition of coverage, to give notice of claim within a set number of days or as soon as practicable.
Notice of Claim: First, the policy requires the insured, as a condition of coverage, to provide notice of claim within a specified time or time frame (that is, either within a set number of days or “as soon as practicable”).
See Kevin LaCroix, Executive Protection: D&O Insurance – The Policyholder’s Obligations, The D&O Diary (Aug. 24, 2010).
DFS Circular Letter No. 26 (2008) states that the late-notice prejudice standard does not apply when notice under a claims-made policy is given after the policy period, its renewal and any extended reporting period have expired.
Nor does the prejudice standard for late notice apply when notice is given under a claim-made policy after the expiration of: the policy period governing the time during which the event occurred; the renewal of such policy; and any extended reporting period under such policy.
See N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).
In Certain Underwriters at Lloyd's London v. Advance Transit Co., the Appellate Division, First Department, held that a claim reported outside the policy period and the extended reporting period was untimely.
Defendant reported the claim to plaintiff outside the policy period and the extended reporting period and therefore, the claim was untimely.
See Certain Underwriters at Lloyd's London v. Advance Tr. Co., 2020 NY Slip Op 06705 (1st Dep't 2020).
Insurance Law § 3420(a)(4) requires a provision that failure to give notice within the policy's time does not invalidate a claim if timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward.
(4) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, an injured person or any other claimant if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible thereafter.
See N.Y. Ins. Law § 3420(a)(4) (2026).
DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.
The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.
See N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).
Insurance Law § 3420(a) states that its required provisions apply to a policy or contract issued or delivered in New York that insures against liability for injury to person, except as § 3420(g) provides, or against liability for injury to or destruction of property.
(a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) of this section, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors: (1) A provision that the insolvency or bankruptcy of the person insured, or the insolvency of the insured's estate, shall not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of and within the coverage of such policy or contract.
See N.Y. Ins. Law § 3420(a) (2026).
Does New York Insurance Law § 3420 excuse late notice of a claim under a directors and officers (D&O) policy?
Insurance Law § 3420(a)(4) preserves a claim under a liability policy within § 3420(a) when timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward. The Department of Financial Services (DFS) treats a D&O policy as liability insurance to which § 3420 is relevant, but no New York appellate decision found in our review decides whether § 3420(a) reaches a D&O claim for purely financial loss.
Whether § 3420(a) reaches a D&O policy. Section 3420(a) applies to a policy or contract insuring against liability for injury to person or for injury to, or destruction of, property. DFS describes the 2009 amendments as applying to all liability policies issued or delivered in New York on or after January 17, 2009. In a 2008 opinion, the DFS Office of General Counsel treated a D&O policy as a form of personal injury liability insurance authorized by Insurance Law § 1113(a)(13), and it relied on § 3420 in its analysis of a D&O policy filing. Those are agency positions, not judicial holdings, and in our review we found no New York appellate decision deciding whether § 3420(a) reaches a D&O claim for purely financial loss; the conservative course is to report every claim within the policy's own deadline rather than rely on the statutory late-notice protections.
The not-reasonably-possible exception. Insurance Law § 3420(a)(4) requires a provision that late notice does not invalidate a claim if timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward. In McCabe v. St. Paul Fire & Marine Insurance Co., the Appellate Division, Fourth Department, treated injured claimants' notice given after the extended reporting period as timely under that paragraph and held that it contains no exception for claims-made policies. In McCabe, the policy period and extended reporting period had ended by March 15, 2007, before § 3420(a)(5) took effect, and the notice came from injured claimants rather than from an insured that knew of the claim.
Sources for this answer
Insurance Law § 3420(a)(4) requires a provision that failure to give notice within the policy's time does not invalidate a claim if timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward.
(4) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, an injured person or any other claimant if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible thereafter.
See N.Y. Ins. Law § 3420(a)(4) (2026).
Insurance Law § 3420(a) requires the listed provisions in any policy or contract issued or delivered in New York that insures against liability for injury to person, except as § 3420(g) provides, or against liability for injury to or destruction of property.
(a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) of this section, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors: (1) A provision that the insolvency or bankruptcy of the person insured, or the insolvency of the insured's estate, shall not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of and within the coverage of such policy or contract.
See N.Y. Ins. Law § 3420(a) (2026).
In Opinion No. 08-10-07, the New York Insurance Department's Office of General Counsel stated that a D&O policy is a form of personal injury liability insurance authorized by Insurance Law § 1113(a)(13).
A D&O policy is a form of personal injury liability insurance that is authorized by Insurance Law § 1113(a)(13).
See N.Y. Ins. Dep't Office of Gen. Counsel, Op. No. 08-10-07 (Oct. 16, 2008).
In Opinion No. 08-10-07, the New York Insurance Department's Office of General Counsel relied on Insurance Law § 3420, which sets out provisions that liability policies must include, as support for its conclusion about a D&O policy filing.
Insurance Law § 3420, which sets forth provisions that an insurer must include in its liability insurance policies, also bolsters the Department’s conclusion.
See N.Y. Ins. Dep't Office of Gen. Counsel, Op. No. 08-10-07 (Oct. 16, 2008).
DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.
The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.
See N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).
In McCabe v. St. Paul Fire & Marine Insurance Co., the Appellate Division, Fourth Department, held that claimants who gave notice as soon as reasonably possible did not lose their claim by giving notice after the policy period and extended reporting period, because Insurance Law § 3420(a)(4) contains no exception for claims-made policies.
We further conclude that plaintiffs gave defendant notice of their claim against Fretz as soon as was reasonably possible, and thus that their failure to give notice to defendant during the policy period or extended reporting period did not invalidate their claim (see Insurance Law § 3420 [a] [4]; Wraight v Exchange Ins. Co. [appeal No. 2], 234 AD2d 916 , 917 [1996], lv denied 89 NY2d 813 [1997]). Contrary to defendant’s contention, Insurance Law § 3420 (a) (3) and (4) do not include exceptions for claims-made insurance policies.
See McCabe v. St. Paul Fire & Marine Ins. Co., 79 A.D.3d 1612 (4th Dep't 2010).
In McCabe v. St. Paul Fire & Marine Insurance Co., the Fourth Department described the claims-made policy as covering claims reported within the policy period and extended reporting period, which expired on March 15, 2007.
The “claims made” professional liability insurance policy issued to Fretz by defendant provided coverage for any claims made against Fretz that were reported to defendant within the policy period and extended reporting period, which expired on March 15, 2007.
See McCabe v. St. Paul Fire & Marine Ins. Co., 79 A.D.3d 1612 (4th Dep't 2010).
What extended reporting period (tail) must an insurer provide or offer when a New York organization's claims-made D&O coverage ends?
For a claims-made D&O policy subject to 11 NYCRR Part 73, termination of coverage triggers a 60-day automatic extended reporting period and, subject to the regulation's exceptions, a required offer of a longer one. Policies placed with unauthorized insurers through licensed excess line brokers are exempt from Part 73, so their tail rights come from the policy's terms.
Which policies the claims-made regulation governs. The minimum standards in 11 NYCRR 73.3 apply, except as § 73.2(d) provides, to claims-made liability policies issued or renewed in New York. In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, stated that policies procured from unauthorized insurers by licensed excess line brokers are exempt from Regulation 121, the claims-made regulation, and held that the excess-line policies before it were therefore not subject to the regulation's minimum standards. The court also held that New York public policy, as expressed in that regulation, did not require the excess-line insurers to sell an extended reporting period. On our reading, the extended reporting rules below therefore describe policies issued by authorized insurers; an organization whose D&O policy was placed through an excess line broker has the tail rights the policy itself grants, while any § 3420 notice protections that apply to the policy and claim remain relevant, because the Department of Financial Services applies the notice amendments to policies issued in the excess line market.
Extended reporting periods after coverage ends. For a policy subject to Part 73, termination of coverage includes cancellation or nonrenewal by either side and any change less favorable to the insured, such as lower limits or a new exclusion. On termination, the insurer must provide a 60-day automatic extended reporting period. For ordinary policies, within 30 days after termination the insurer generally must advise the insured in writing of that period and of the availability, premium and importance of buying more. On cancellation for nonpayment of premium or fraud, however, the insurer need not quote the premium for extended reporting coverage unless the insured asks for a quotation. The insured then has the greater of 60 days from termination or 30 days from that advice to accept in writing. Policies issued or renewed under the large-risk rule in § 73.2(d) are exempt from the written-advice requirement and from the advice-based acceptance window, and they need not offer extended reporting coverage when the termination is a reduction in limits, a new exclusion or another change less favorable to the insured.
Length and limits of the offered tail. For a policy subject to Part 73, the general rule is that the insurer must offer a three-year extended reporting period. For directors and officers liability, the required offer is one year, except for not-for-profit organizations, and the one-year group also includes policies issued or renewed under the large-risk rule in § 73.2(d). The regulation defines a not-for-profit organization as one described in section 501(c)(3) of the Internal Revenue Code. The large-risk rule reaches, among others, a policy with at least $5,000,000 of primary coverage per occurrence or a deductible or self-insured retention of at least $100,000 per occurrence. Where a claims-made relationship has lasted less than a year and coverage ends for nonpayment of premium or fraud, the regulation's rules in § 73.3(e) through (h) and (j) on tail notices, offers, limits and premiums do not apply. On our reading, an ordinary D&O policy issued to a 501(c)(3) organization by an authorized insurer must therefore be offered three years, while a social club organized under section 501(c)(7), an association organized under section 501(c)(4) and a business corporation must be offered one year. No Department of Financial Services guidance or case found in our review confirms that reading, so the conservative course is to obtain the offered tail length from the insurer in writing before coverage ends.
Tail limits also differ by group. For a policy with an annual aggregate limit outside the one-year group, an extended reporting period after a claims-made relationship of at least three years must carry an aggregate limit of at least 100 percent of that annual aggregate, and after a shorter relationship at least the greater of the amount remaining in the annual aggregate or 50 percent of it. For the one-year group, the aggregate limit for the extended period must be at least the amount remaining in the policy's annual aggregate. Where termination is due only to a decrease in the annual aggregate, the required tail aggregate is no greater than the amount of that decrease, and a policy with no annual aggregate must provide extended reporting coverage without an aggregate limit. Large-risk policies under § 73.2(d) are exempt from the 100 percent, 50 percent and decrease-only rules.
Nonrenewal notice. Insurance Law § 3426, the commercial lines cancellation and renewal statute, applies to policies of commercial risk, professional liability and public entity insurance, but it does not apply to policies written on an excess line basis, among other listed exclusions. A nonrenewal or conditional renewal notice under that section must state the specific reasons and be mailed or delivered at least 60, and not more than 120, days before the policy expires, or at least 30 days for an excess policy or a very large jumbo risk. On our reading, a D&O policy issued to an organization by an authorized insurer is a covered policy, and for a policy subject to Part 73 its nonrenewal is a termination of coverage that triggers the extended reporting rights above.
Sources for this answer
11 NYCRR 73.3(d) requires the insurer to provide a 60-day automatic extended reporting period on termination of claims-made coverage, or 90 days for public entity liability policies.
(d) Upon termination of coverage, a 60-day automatic extended reporting period, or 90 days in case of public entity liability insurance policies, must be provided by the insurer.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(d) (2026).
11 NYCRR 73.3(f) requires an insurer, except as subdivision (g) and sections 73.4 and 73.5 provide, to offer a three-year extended reporting period on termination of coverage.
(f) Except as provided in subdivision (g) of this section, and sections 73.4 and 73.5 of this Part, upon termination of coverage, an insurer must offer the insured a three-year extended reporting period.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(f) (2026).
In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, stated that policies procured from unauthorized insurers by licensed excess line brokers are exempt from Regulation 121, New York's claims-made regulation in 11 NYCRR Part 73.
Policies procured from unauthorized insurers by licensed excess line brokers are exempt from the provisions of Regulation 121 (11 NYCRR 27.10 [a]; see Matter of John Paterno, Inc. v Curiale, 88 NY2d 328 , 332 n [1996]).
See Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).
11 NYCRR 73.3 applies its minimum standards, except as § 73.2(d) provides, to claims-made liability policies issued or renewed in New York; it deems a claim first made when the insurer receives written notice of a claim or suit, while permitting written notice of incident as the trigger, and bars changing the retroactive date during the claims-made relationship and any extended reporting period.
Except as provided in section 73.2(d) of this Part, no claims-made liability insurance policy shall be issued or renewed in this State, unless the policy and the issuing insurer comply with the following minimum standards: (a) A claim will be deemed first made when the insurer receives written notice of a claim or suit from the insured or a third party, but this shall not preclude an insurer from utilizing written notice of incident as the trigger of coverage under the policy. (b) A retroactive date may not be changed during the term of the claims-made relationship and any extended reporting period.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(a)–(b) (2026).
In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, held that because the excess-line policies before it fell within an exception to Regulation 121, they were not subject to the regulation's minimum standards.
However, because the policies issued by defendants in the instant case fall within an exception to Regulation 121, they are not subject to these minimum standards.
See Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).
In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, held that New York public policy as expressed in Regulation 121, which did not apply to the excess-line insurers, did not require them to sell extended reporting period coverage.
We therefore hold that the motion court erred in finding that New York public policy as expressed in Regulation 121, a regulation that is not applicable to defendants, requires them to sell ERP coverage to plaintiff.
See Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).
DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.
The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.
See N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).
11 NYCRR 73.1(n) defines termination of coverage to include cancellation or nonrenewal by the insurer or the insured, and any decrease in limits, reduction of coverage, new exclusion or other change less favorable to the insured.
(n) Termination of coverage means, whether made by the insurer or the insured at any time: (1) cancellation or nonrenewal of a policy; or (2) decrease in limits, reduction of coverage, increased deductible or self-insured retention, new exclusion, or any other change in coverage less favorable to the insured.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(n) (2026).
11 NYCRR 73.3(e)(1) requires the insurer, within 30 days after termination of coverage, to advise the insured in writing of the automatic extended reporting period and of the availability, premium and importance of buying additional extended reporting coverage.
(1) Within 30 days after termination of coverage, the insurer must advise the insured in writing of the automatic extended reporting period coverage and the availability of, the premium for, and the importance of purchasing additional extended reporting period coverage.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(1) (2026).
11 NYCRR 73.3(e)(2) provides that, on cancellation for nonpayment of premium or fraud by the insured, an insurer need not provide a premium quotation for extended reporting period coverage unless the insured requests one.
(2) Upon cancellation due to nonpayment of premium or fraud on the part of the insured, an insurer shall not be required to provide a premium quotation for extended reporting period coverage unless requested by the insured.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(2) (2026).
11 NYCRR 73.3(e)(3) gives the insured the greater of 60 days from the effective date of termination or 30 days from the insurer's written advice to submit written acceptance of extended reporting period coverage.
(3) The insured shall have the greater of the following in which to submit written acceptance of extended reporting period coverage: (i) 60 days from the effective date of termination of coverage; or (ii) 30 days from the date of mailing or delivery of the advice required by paragraph (1) of this subdivision.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(3) (2026).
11 NYCRR 73.2(d)(2) requires a policy issued or renewed under § 73.2(d) to comply with Part 73 except, among other provisions, § 73.3(e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n).
(2) Any policy issued or renewed pursuant to this subdivision must comply with all the provisions of this Part, except: (i) subdivisions (e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n) of section 73.3 of this Part; (ii) subdivisions (a)(5), (b) and (c) of section 73.7 of this Part; and (iii) section 73.8 of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(2) (2026).
11 NYCRR 73.3(c)(3) provides that policies issued or renewed under § 73.2(d)(1) need not offer extended reporting period coverage upon a termination under § 73.1(n)(2).
(3) For policies issued or renewed pursuant to section 73.2(d)(1) of this Part, extended reporting period coverage need not be offered upon termination of coverage pursuant to section 73.1(n)(2) of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(c)(3) (2026).
11 NYCRR 73.3(g) requires the insurer, on termination of directors and officers liability coverage other than for not-for-profit organizations, to offer a one-year extended reporting period.
(g) Upon termination of coverage for the following types of coverages or risks, the insurer must offer a one-year extended reporting period: (1) directors and officers liability, except not-for-profit organizations; (2) employee benefits liability; (3) fiduciary liability; (4) public entity liability; (5) pollution and environmental impairment liability; (6) ski resort liability subject to section 73.2(f) of this Part; (7) employment practices liability; and (8) policies issued or renewed pursuant to section 73.2(d) of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(g) (2026).
11 NYCRR 73.1(s) defines a not-for-profit organization, for the claims-made regulation, as a corporation, association, organization or trust described in section 501(c)(3) of the Internal Revenue Code.
(s) Not-for-profit organization means a corporation, association, organization or trust described in section 501(c)(3) of the United States Internal Revenue Code.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(s) (2026).
11 NYCRR 73.2(d)(1) permits a liability policy to be written on a claims-made basis if it insures a large commercial insured, provides at least $5,000,000 of primary coverage per occurrence, provides qualifying umbrella or excess coverage, or carries a deductible or self-insured retention of at least $100,000 per occurrence.
(1) A liability policy may be issued or renewed in this State on a claims-made basis if the policy: (i) insures a large commercial insured; (ii) provides primary coverage of at least $5,000,000 per occurrence; (iii) provides umbrella or excess coverage of at least $1,000,000 per occurrence, where the underlying limits are at least $2,000,000 per occurrence; or (iv) is written with a deductible, or over a self-insured retention, of at least $100,000 per occurrence.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(1) (2026).
11 NYCRR 73.3(k) provides that where a claims-made relationship has lasted less than one year, § 73.3(e) through (h) and (j) do not apply on termination of coverage for nonpayment of premium or fraud.
(k) Where a claims-made relationship has continued for less than one year, subdivisions (e) through (h) and (j) of this section shall not apply upon termination of coverage for nonpayment of premium or fraud.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(k) (2026).
11 NYCRR 73.3(h)(1) requires that, except for the coverages listed in § 73.3(g), where a claims-made relationship has lasted at least three years and the policy has an annual aggregate limit, any aggregate limit for the extended reporting period be at least 100 percent of that annual aggregate.
(1) Except for the coverages delineated in subdivision (g) of this section, where a claims-made relationship has continued for at least three years and the policy contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to 100 percent of such policy's annual aggregate limit.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(1) (2026).
11 NYCRR 73.3(h)(2) requires that, except for the coverages listed in § 73.3(g), where a claims-made relationship has lasted less than three years and the policy has an annual aggregate limit, any aggregate limit for the extended reporting period be at least the greater of the remaining annual aggregate or 50 percent of it.
(2) Except for the coverages delineated in subdivision (g) of this section, where a claims-made relationship has continued for less than three years and the policy contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to the greater of: (i) the amount of coverage remaining in such policy's annual aggregate liability limit; or (ii) 50 percent of such policy's annual aggregate liability limit.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(2) (2026).
11 NYCRR 73.3(h)(3) requires that, for a policy listed in § 73.3(g) with an annual aggregate limit, any aggregate limit for the extended reporting period be at least the amount remaining in the policy's annual aggregate limit.
(3) Where a policy as specified in subdivision (g) of this section contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to the amount of coverage remaining in such policy's annual aggregate liability limit.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(3) (2026).
11 NYCRR 73.3(h)(4) provides that where termination of coverage is due only to a decrease in the annual aggregate limit, the aggregate limit required for the extended reporting period is no greater than the amount of the decrease.
(4) Where termination of coverage is due only to a decrease in the policy's annual aggregate liability limit, the aggregate liability limit, if any, required by this subdivision for the extended reporting period coverage shall be no greater than the amount of such decrease.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(4) (2026).
11 NYCRR 73.3(h)(5) requires the insurer to provide extended reporting period coverage without an aggregate limit where the policy has no annual aggregate limit.
(5) Where a policy has no annual aggregate liability limit, the insurer shall provide extended reporting period coverage without an aggregate liability limit.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(5) (2026).
Insurance Law § 3426(a)(1) defines a covered policy as a policy of commercial risk insurance, professional liability insurance or public entity insurance, including any contract, certificate or other evidence of such insurance.
(1) “Covered policy” means, for purposes of this section, a policy of commercial risk insurance, professional liability insurance or public entity insurance, and shall include any contract, certificate or other evidence of such insurance.
See N.Y. Ins. Law § 3426(a)(1) (2026).
Insurance Law § 3426(l)(2) provides that § 3426 does not apply to policies written on an excess line basis, among other listed exclusions.
(2) This section shall not apply to policies issued pursuant to a plan established under article fifty-three, fifty-four or fifty-five of this chapter, surety policies, policies providing workers' compensation or employers' liability coverage, financial guaranty insurance, policies providing mortgage guaranty or credit insurance, policies principally marine insurance as defined by paragraph twenty of subsection (a) of section one thousand one hundred thirteen of this chapter, legal services insurance, reinsurance contracts, policies written on an excess line basis, or policies subject to section three thousand four hundred twenty-five of this chapter.
See N.Y. Ins. Law § 3426(l)(2) (2026).
Insurance Law § 3426(e)(2) and (3) require a nonrenewal or conditional renewal notice to state the specific reasons and to be mailed or delivered at least 60, but not more than 120, days before the policy's expiration, or at least 30 days for an excess liability policy or a jumbo risk.
(2) A nonrenewal notice as specified in subparagraph (A), a conditional renewal notice as specified in subparagraph (B), and the second notice described in subparagraph (C) of paragraph one of this subsection shall contain the specific reason or reasons for nonrenewal or conditional renewal, set forth the amount of any premium increase (or, where such amount cannot reasonably be determined as of the time the notice is provided, a reasonable estimate of the premium increase based upon the information available to the insurer at that time), and describe in plain and concise terms the nature of any other proposed changes specified in paragraph one of this subsection. The superintendent shall by regulation specify the permissible range of such estimate (which shall not exceed five percent of the actual amount) and the permissible methods by which an insurer may satisfy the notice requirements of this section. (3) The notice required by paragraph one of this subsection shall be mailed or delivered at least sixty, but not more than one hundred twenty, days in advance of the expiration date of the policy, except that for an excess liability policy or a policy issued to a jumbo risk, the notice shall be mailed or delivered at least thirty, but not more than one hundred twenty, days in advance of the expiration date of the policy.
See N.Y. Ins. Law § 3426(e)(2)–(3) (2026).
What happens to a New York organization's D&O coverage, and to its former directors' protection, when it merges, dissolves or winds down?
On a merger or similar transaction, the policy's change-in-control clause usually governs, and commentary describes such clauses as typically converting the policy to run-off coverage for wrongful acts before the change. For a claims-made policy subject to 11 NYCRR Part 73, a director who leaves stays covered for acts during the affiliation through the claims-made relationship and any extended reporting period.
People who leave and organizations that wind down. A person covered during an affiliation with the insured, such as a director who leaves the board, stays covered for acts during that affiliation through the claims-made relationship and any extended reporting period. If the insured entity is liquidated, goes bankrupt or permanently ceases operations and does not buy the extended reporting period, a covered person who asks within 120 days of the termination of coverage must be given one for listed coverages, which include D&O. That individual right does not apply to a policy issued or renewed under the large-risk rule in § 73.2(d). The insurer need not tell that person the coverage is available.
Change in control, run-off and tail endorsements. Commentary in ABA Business Law Today describes change-in-control clauses that typically reach an acquisition, merger, consolidation or sale of more than half the assets, after which the policy covers only wrongful acts before the change. The same article notes that the clause may require notice to the insurer within a set time to preserve coverage for the restructured entity , and that a triggered clause typically converts the policy to run-off coverage for pre-transaction conduct through the end of the policy period. It also reports a dispute in which a tail endorsement extended the reporting period but cut the limits for the rest of the policy period from $15 million to $5 million. Applying this commentary to an organization's merger or dissolution is our inference. For a policy subject to Part 73, the regulation treats any change in coverage less favorable to the insured as a termination of coverage , but in our review we found no New York authority deciding whether a conversion to run-off is such a change, so the conservative course on a merger or dissolution is to agree tail or run-off terms with the insurer in writing rather than rely on the regulation.
Sources for this answer
Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a D&O change-in-control provision typically includes an acquisition, merger, consolidation or sale of more than 50 percent of assets, and that D&O policies cover only wrongful acts before the change in control.
One of the first insurance questions to ask is whether the particular deal or financial restructuring triggers a “change in control” under the company’s current D&O policy, which typically includes an acquisition, merger, consolidation, or sale of more than 50 percent of assets. Whether this provision is triggered and, if so, when the change in control occurs matters because D&O policies will provide coverage only for wrongful acts that occur before the change in control occurs.
See Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).
Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a triggered change-in-control provision typically converts D&O coverage to run-off, ending coverage for later conduct while covering pre-transaction conduct through the end of the policy period.
If a change in control provision is triggered, it typically converts the existing D&O coverage to “runoff,” which means that claims based on conduct after the change in control are no longer covered and that claims based on pretransaction conduct are covered through the end of the policy period.
See Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).
11 NYCRR 73.3(m) requires that a person affiliated with the insured and covered during that affiliation remain covered, during the claims-made relationship and any extended reporting period, for covered acts or omissions during the affiliation after it ends.
(m) During a claims-made relationship and any extended reporting period, a person employed or otherwise affiliated with the insured and covered by the insured's claims-made policy during such affiliation, shall continue to be covered under such policy and any extended reporting period after such affiliation has ceased for such person's covered acts or omissions during such affiliation.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(m) (2026).
11 NYCRR 73.3(n)(1) requires individual extended reporting coverage when its stated conditions are met and the coverage or risk is among those enumerated in § 73.2(a)(2), (3), (4), (6) or (10).
(1) A claims-made policy issued to a corporation, partnership or other entity shall provide extended reporting period coverage upon termination of coverage to any person covered under the policy, if: (i) such entity has been placed in liquidation or bankruptcy or permanently ceases operations; (ii) the entity or its designated trustee does not purchase extended reporting period coverage; (iii) such person requests the extended reporting period coverage within 120 days of the termination of coverage; and (iv) the coverage or risk is of the type enumerated in paragraph (2), (3), (4), (6) or (10) of section 73.2(a) of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(n)(1) (2026).
11 NYCRR 73.2 bars claims-made coverage in policies issued or renewed in New York except as the section allows, and § 73.2(a) permits directors and officers liability, among other listed coverages, to be written on a claims-made basis.
Claims-made coverage any not be provided in any policy issued or renewed in this State, except that: (a) The following coverages or risks may be written on a claims-made basis: (1) completed operations liability; (2) directors and officers liability; (3) employee benefits liability; (4) errors and omissions liability; (5) excess liability; (6) fiduciary liability; (7) pollution and environmental impairment liability; (8) public entity liability; (9) products liability; (10) professional liability (including medical malpractice liability); (11) ski resort liability, subject to subdivision (f) of this section; (12) employment practices liability; and (13) risks specified in paragraph (d)(1) of this section.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2 (2026).
11 NYCRR 73.2(d)(2) requires a policy issued or renewed under § 73.2(d) to comply with Part 73 except, among other provisions, § 73.3(e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n).
(2) Any policy issued or renewed pursuant to this subdivision must comply with all the provisions of this Part, except: (i) subdivisions (e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n) of section 73.3 of this Part; (ii) subdivisions (a)(5), (b) and (c) of section 73.7 of this Part; and (iii) section 73.8 of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(2) (2026).
11 NYCRR 73.3(n)(2) relieves the insurer of any obligation to notify a covered person that individual extended reporting coverage under § 73.3(n)(1) is available.
(2) The insurer shall have no obligation to provide any notice to any such person of the availability of the extended reporting period coverage required by paragraph (1) of this subdivision.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(n)(2) (2026).
Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a change-in-control provision may require notice to the insurer within a set time to preserve coverage for the restructured entity.
The change in control provision may also include conditions requiring that the company provide notice to the insurer within a certain amount of time to preserve coverage for the restructured entity.
See Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).
Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today reports a dispute in which a tail coverage endorsement extended the reporting period but reduced the limits for the rest of the initial policy period from $15 million to $5 million.
To avoid any gap in coverage for pretransaction conduct, GlassHouse purchased tail coverage by endorsing the policy, but as GlassHouse later learned, the tail coverage endorsement not only extended the reporting period for several years, it also reduced the limits for the remainder of the initial policy period from $15 to $5 million.
See Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).
11 NYCRR 73.1(n) defines termination of coverage to include cancellation or nonrenewal by the insurer or the insured, and any decrease in limits, reduction of coverage, new exclusion or other change less favorable to the insured.
(n) Termination of coverage means, whether made by the insurer or the insured at any time: (1) cancellation or nonrenewal of a policy; or (2) decrease in limits, reduction of coverage, increased deductible or self-insured retention, new exclusion, or any other change in coverage less favorable to the insured.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(n) (2026).
What should a New York organization confirm in writing with its insurance broker about its D&O coverage?
Under New York Insurance Law § 502(c), a certificate of insurance cannot amend, extend or alter the policy or confer rights beyond it, so written confirmation of D&O coverage should come from the policy and its endorsements. That confirmation should identify the insured entities and people, the kinds of claims excluded, the reporting deadlines and tail terms, and how limits are shared, a list that is our synthesis of the questions in the table below.
Commentary from the law firm Venable recommends that, even when a broker reports a claim or other development to an insurer, the organization insist that the communication be in writing, keep a copy and confirm delivery.
Questions that decide D&O coverage. The table pairs each question with the rule or source that makes it matter.
| Question for the broker | Why it matters under New York law or the policy |
|---|---|
| 1. Which entities does the D&O policy name or define as insureds, and does the event-running organization meet any subsidiary test of ownership or control? | The insured must show that a claim falls within the coverage, while an insurer relying on an exclusion must show that it applies. Commentary notes that subsidiary status can turn on ownership percentage and that policies sometimes fail to extend coverage to subsidiary or affiliated organizations. |
| 2. Is a newly formed affiliate covered automatically, or only after notice to the insurer? | Commentary notes that most policies have specific provisions for organizations formed or acquired after the policy begins. |
| 3. Are committee members, event volunteers and officers of the affiliate insured persons, and which kinds of claims against them does the D&O policy exclude? | Commentary notes that volunteers are not always among the people a policy covers. Insured status alone does not establish coverage for an event injury: the executive liability policy in Town of Massena excluded loss arising out of bodily injury and similar torts. |
| 4. Does outside-entity coverage reach board service at the parent organization's request, and what must pay first? | A broker publication describes outside directorship coverage as usually excess of the outside entity's indemnification and its own D&O insurance. |
| 5. Are D&O limits shared among the parent, affiliates and individuals? | Commentary notes that claims against the company itself may erode the limit available to directors. |
| 6. What are the reporting deadlines, what extended reporting period will be offered, was the policy placed through an excess line broker, and what happens on a merger or dissolution? | For a policy governed by Insurance Law § 3420(a), a claims-made policy may require claims within the policy period, a renewal or an extended reporting period; whether § 3420(a) reaches a particular D&O claim, such as one for purely financial loss, depends on the policy and the claim. For an ordinary D&O policy subject to 11 NYCRR Part 73, the required tail offer is one year except for organizations the regulation defines by reference to § 501(c)(3), which receive the general three-year offer, although the regulation has exceptions, including a one-year offer for policies issued under its large-risk rule. Policies placed through licensed excess line brokers are exempt from Part 73. Commentary notes that a change in control typically converts coverage to run-off. |
Rows 1 to 5 turn mainly on policy wording, so answers tied to the policy and its endorsements matter more there than general law. The statutory and regulatory points in row 6 are subject to the exceptions and excess-line limits noted in that row.
Sources for this answer
Venable LLP commentary states that insurance policies often misidentify the purchasing nonprofit or fail to extend coverage to all the organizations that should benefit, such as subsidiary or affiliated organizations.
Insurance policies often misidentify the nonprofit that purchased them, include the wrong address for the nonprofit, or fail to extend coverage to all of the organizations that should receive insurance benefits, such as subsidiary or affiliated organizations.
See Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as excluding loss arising out of or related to bodily injury, libel, slander, defamation and similar torts.
The policy limits this coverage by excluding, among other things, any loss “arising out of’ or otherwise related to “bodily injury * * * libel, slander, defamation of character” or similar torts.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
Insurance Law § 3420(a)(5) allows a claims-made policy to require that the claim be made during the policy period, any renewal or any extended reporting period, subject to paragraph (4).
With respect to a claims-made policy, however, the policy may provide that the claim shall be made during the policy period, any renewal thereof, or any extended reporting period, except as provided in paragraph four of this subsection.
See N.Y. Ins. Law § 3420(a)(5) (2026).
Commentary by Scott N. Sherman and Edgar A. Neely IV states that multiple claims or claims against the company itself may erode the D&O limit available to directors personally.
A $15 million policy does not necessarily provide $15 million of protection to directors personally. Multiple claims or claims against the company itself may erode the available limit.
See Scott N. Sherman & Edgar A. Neely IV, Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess, The D&O Diary (Sept. 24, 2026).
Insurance Law § 502(c) provides that a certificate of insurance does not amend, extend or alter the coverage of the referenced policy and confers no rights beyond those the policy expressly provides.
(c) A certificate of insurance shall not amend, extend, or alter the coverage provided by the insurance policy to which the certificate of insurance makes reference. A certificate of insurance shall further not confer to any person any rights beyond those expressly provided by the policy of insurance referenced therein.
See N.Y. Ins. Law § 502(c) (2026).
Insurance Law § 501(a) defines a certificate of insurance as a document prepared or issued by an insurer or insurance producer as evidence of property/casualty insurance coverage, and excludes a policy of insurance and an insurance binder from that definition.
(a) “Certificate” or “certificate of insurance” means any document or instrument, or addendum thereto no matter how titled or described, prepared or issued by an insurer or insurance producer as evidence of property/casualty insurance coverage. “Certificate” or “certificate of insurance” shall not include a policy of insurance or an insurance binder.
See N.Y. Ins. Law § 501(a) (2026).
Venable LLP commentary recommends that a nonprofit, even when a broker reports a claim or other significant development to an insurer, insist that the communication be in writing, receive a copy and confirm the message was delivered.
A nonprofit’s emphasis nonetheless should be on delegation, not abdication. Even if a broker will report a claim or other significant development to an insurer, the nonprofit should insist that the communication be in writing, receive a copy, and follow up to make sure that the message was delivered.
See Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that the hospital had not met its burden of showing that the remaining tortious-interference conduct was covered, because the complaint did not allege that the doctors acted in their insured capacity as officers or directors.
The hospital has not, however, met its burden of showing that the tortious conduct is covered. Franzon’s tortious interference claims against the hospital are centered around three physicians’ failure to refer patients to him. This conduct could only occur in the doctors’ respective roles as members of an insurance network. Franzon’s complaint, however, does not allege whether the doctors’ conduct in question occurred while they were acting in their “insured capacity” as officers or directors or otherwise.
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals stated that, when an insurer relies on an exclusion to deny a defense, it bears the burden of showing that the complaint's allegations can be interpreted only to exclude coverage.
When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325 [1974]; Technicon, 74 NY2d at 73-74 ).
See Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).
Kevin LaCroix's D&O Diary commentary states that questions can arise whether an entity is a subsidiary depending on the parent's ownership percentage, and that most policies have specific provisions for organizations formed or acquired after the policy's inception.
Questions can arise whether or not an entity is a subsidiary (depending on the corporate parent’s ownership percentage). Questions can also arise about organizations formed or acquired after the policy’s inception. Most policies have very specific policy provisions addressing these subsequent formations or acquisitions.
See Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).
Venable LLP commentary states that nonprofits sometimes overlook whether their policies cover everyone who performs their work, an issue that frequently arises with volunteers, who are not always among the classes of covered people.
Nonprofits sometimes overlook the importance of ensuring that their policies extend coverage to all of the people who perform their work. This issue frequently arises with regard to volunteers, who are not always among the classes of people to whom coverage is extended.
See Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).
A publication by Marsh, an insurance broker, states that outside directorship coverage most commonly applies excess of the outside entity's indemnification and the outside entity's own D&O program.
D&O policies often contain an ODL extension that most commonly works on a “double excess basis,” where a company’s ODL coverage applies excess of the outside entity’s indemnification to the director or officer and the outside entity’s own D&O program.
See Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).
11 NYCRR 73.3(g) requires a one-year extended reporting period offer on termination of directors and officers liability coverage, except for not-for-profit organizations.
(g) Upon termination of coverage for the following types of coverages or risks, the insurer must offer a one-year extended reporting period: (1) directors and officers liability, except not-for-profit organizations; (2) employee benefits liability; (3) fiduciary liability; (4) public entity liability; (5) pollution and environmental impairment liability; (6) ski resort liability subject to section 73.2(f) of this Part; (7) employment practices liability; and (8) policies issued or renewed pursuant to section 73.2(d) of this Part.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(g) (2026).
11 NYCRR 73.1(s) defines a not-for-profit organization, for the claims-made regulation, as a corporation, association, organization or trust described in section 501(c)(3) of the Internal Revenue Code.
(s) Not-for-profit organization means a corporation, association, organization or trust described in section 501(c)(3) of the United States Internal Revenue Code.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(s) (2026).
11 NYCRR 73.3(f) requires an insurer, except as subdivision (g) and sections 73.4 and 73.5 provide, to offer a three-year extended reporting period on termination of coverage.
(f) Except as provided in subdivision (g) of this section, and sections 73.4 and 73.5 of this Part, upon termination of coverage, an insurer must offer the insured a three-year extended reporting period.
See N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(f) (2026).
In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, stated that policies procured from unauthorized insurers by licensed excess line brokers are exempt from Regulation 121, New York's claims-made regulation in 11 NYCRR Part 73.
Policies procured from unauthorized insurers by licensed excess line brokers are exempt from the provisions of Regulation 121 (11 NYCRR 27.10 [a]; see Matter of John Paterno, Inc. v Curiale, 88 NY2d 328 , 332 n [1996]).
See Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).
Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a triggered change-in-control provision typically converts D&O coverage to run-off.
If a change in control provision is triggered, it typically converts the existing D&O coverage to “runoff,” which means that claims based on conduct after the change in control are no longer covered and that claims based on pretransaction conduct are covered through the end of the policy period.
See Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).