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How Directors and Officers insurance can help protect your nonprofit

Directors and Officers nonprofit volunteers

One of the most important assets your nonprofit has is its board of directors. They are volunteering their time and energy to oversee your organization’s activities and decisions. The liability risks they face aren’t often realized until it’s too late – and without the right protection.

You might think board members are covered against whatever claims arise under the federal Volunteer Protection Act (VPA), but this isn’t always the case. You may be considering directors and officers liability insurance (D&O) as an added protection for the rare instance your nonprofit board is faced with a lawsuit.

Not sure if you need this type of coverage? Consider these important points about the VPA and D&O insurance to guide your decision.

Understand the limits of the Volunteer Protection Act

The Volunteer Protection Act is a federal law designed to protect volunteers against allegations of harm. This law provides limited immunity for volunteers who do not receive compensation. However, it doesn’t protect against all actions and decisions. Additionally, it does not cover the cost of a legal defense.

D&O insurance is a tool that provides broad coverage to minimize potential risk and financial loss.

Weigh the potential risks

There are various risks your board of directors face, many of which aren’t considered until it’s too late. Examples of potential risk include:

  • Employment related lawsuits such as harassment and wrongful termination
  • Tax reporting and filing errors
  • Failure to ensure compliance with regulations or state and local laws
  • Claims of negligence in carrying out duties of care and diligence

The claims made against your board can come from a variety of sources, external and internal. For example, employees, competitors, creditors and tax authorities might make claims. Additionally, donors may argue funds were not used in a manner consistent with your organization’s values.

Assessing potential risk is critical in deciding what type of coverage is needed and how much should be purchased. Your insurance professional can assess your risks and determine what type of policy is right for you.

Understand what Directors and Officers insurance covers

D&O insurance can provide coverage for a variety of situations, but the key to mitigating risk is understanding protections upfront. For example, some potential lawsuits might include negligence claims, mismanagement, wrongful termination, employment disruptions, or sexual harassment. These are sometimes excluded from D&O policies and packaged as Employment Practices Liability Insurance (EPLI). Either way, you should get coverage (EPLI or D&O insurance) if you have a paid staff.

Examples of what Directors and Officers insurance may cover include:

  • Actual or alleged wrongful acts
  • Decisions with unintended consequences
  • Omissions

A typical policy may include coverage for the defense costs and financial losses resulting from a claim, within the limits of liability stated in the policies. Additionally, some policies cover claims on a “claims-made basis,” which means coverage is in place as long as the policy is in place. Others extend the reporting period, allowing claims after the policy expiration date. Check with your insurance professional to fully understand coverage and potential limitations.

Understand what isn’t covered

A good D&O insurance policy will cover a variety of situations. For example, does the policy include prior acts or coverage for previous board members?

D&O policies may have limitations and exclusions that consist of:

  • Acting for personal profit
  • Breach of contract
  • Dishonest acts
  • Fraud
  • Intentional acts of noncompliance
  • Claims made under previous policies

When you are faced with a claim, it’s important to act fast. Understanding whether a potential claim is covered will give you the guidance to plan next steps.

Understand your liability and risk exposure areas

Assess your risk exposure areas before you buy a D&O policy and be clear about what you’re buying.

All policies aren’t created equally. A standardized D&O form doesn’t exist, and while D&O policies don’t protect against every potential risk, matching the right risks to the appropriate policy helps mitigate those risks in the future.
Avoid selecting a policy solely based on price. Price is important, but it’s also critical to weigh that price against potential scenarios for loss. What specific scenarios do your board members face? If the likelihood of specific situations is high, then it’s critical to select a policy that covers those situations even if the cost of coverage is higher.

Selecting a policy that doesn’t provide adequate protection could be a costly mistake in the future.

Moving forward with greater protection

A company is never “too small” for D&O insurance. General liability insurance typically covers limited situations, such as those related to bodily injury or property damage. Many scenarios aren’t covered under this general type of protection.

Your insurance professional can ask the right questions to understand your business’ risk exposure. Talk with them about their prior experience with D&O claims to find out where coverage is critical to mitigate loss. Providing complete coverage ensures peace of mind to those who voluntarily invest their time serving the interests of a company.

To consult with an insurance advisor about Directors and Officers coverage for your nonprofit, call 800-392-6532 or email insure@colby-group.com.

This article is for informational purposes only. Insurance needs and coverages vary; therefore, the terms of your policy will be specific to your situation. We recommend that you discuss your insurance needs with a licensed agent for details on pricing, coverages, and exclusions.