Elan Kandel and Jim Young recently co-authored an article examining issues relating to the Professional Services Exclusion found in many private company D&O insurance policies.
Directors and officers (“D&O”) insurance policies typically exclude coverage for claims based upon or arising out of “professional services.” Professional services exclusions contained in such policies generally provide that the insurer is not liable for defense or indemnity in response to a claim based upon or arising out of the insured’s acts, errors, or omissions in performance or failure to perform such services. Such claims are instead generally covered under professional liability, or errors and omissions, policies (“E&O”).