The IV. Zivilsenat (Fourth Civil Senate) of the Bundesgerichtshof (BGH, Federal Court of Justice), which is responsible, among other things, for insurance contract law, must decide to what extent a D&O insurer must reimburse costs for public relations measures intended to avert reputational damage resulting from media publications. The subject of the proceedings is, in particular, whether and until what point in time insurance cover may be available for court measures against media reports.
BGH hears case on reimbursement of PR costs under D&O insurance
According to the notice issued by the Bundesgerichtshof, the proceedings concern D&O insurance for corporate officers and senior executives. The claimant was an authorised signatory and head of accounting of the policyholder. It was also reported that the claimant is the former chief accountant of a now insolvent payment services provider; the insurer named is the insurance company Chubb, with which the policy had been concluded.
According to the Bundesgerichtshof’s account, the insurance included, on the one hand, liability cover in the event that an insured person is held liable for damages. On the other hand, legal expenses cover for proceedings was provided if proceedings for a criminal offence were initiated against an insured person due to a breach of duty. In addition, reimbursement of PR costs had been agreed insofar as these were intended to avert career-damaging reputational harm caused by critical media reporting on an insured liability event.
Facts according to the notice of the Bundesgerichtshof
Notifications and developments in 2019 and 2020
In April 2019, the policyholder informed the insurer that concerns had been raised regarding suspicious transactions and alleged actions by a member of the finance team. As background to the early notification later asserted by the claimant in 2019, further reports mentioned critical publications by a business newspaper, investigations by financial authorities in Singapore, and a class action in the United States.
In June 2020, the policyholder published an ad hoc announcement. According to that announcement, the bank balances previously reported in favour of the company in trustee accounts amounting to EUR 1.9 billion most likely did not exist. In the same month, the claimant was dismissed as authorised signatory and released from his duties.
Media reports and representation in press law matters
In 2021, articles appeared in online editions of various national media outlets that addressed the claimant by name. According to the Bundesgerichtshof’s account, the reports concerned his work for the policyholder, the investigation proceedings directed against him, and claims he had registered in the insolvency schedule.
The claimant instructed a law firm specialising in media law to represent him in press law matters. The insurer refused cover for the resulting costs. After the claimant had obtained a preliminary injunction against the insurer, the insurer reimbursed part of the costs incurred for this purpose.
Criminal proceedings and presumption of innocence
Criminal proceedings are being conducted against the claimant and other persons. According to reports, the claimant has been on trial in the Wirecard criminal proceedings before the Landgericht München I (Regional Court of Munich I) since December 2022; the Staatsanwaltschaft München (Munich Public Prosecutor’s Office) is said to consider him jointly responsible for the fraud, while he denies the allegations. The presumption of innocence applies to the claimant.
In the criminal proceedings before the Landgericht München I with the Aktenzeichen (case no.) 4 KLs 402 Js 108194/22, according to a schedule presented in July 2026, the closing submissions were to be delivered in the week beginning 19 October 2026. No final criminal conviction of the claimant can be inferred from the procedural status underlying this article.
Dispute over insured sum and occurrence of the insured event
Claimant’s position
By his action, the claimant sought, among other things, payment of further PR costs. He also sought a declaration that the insurer was obliged to provide insurance cover in the form of indemnification and reimbursement of costs for court measures aimed at an injunction against, or retraction of, critical media reporting.
According to additional reports, the claimant argued that the insured event had already occurred in 2019. For that year, an insured sum of EUR 25 million, which had not yet been exhausted, had been available. He also complained that the insurer had disadvantaged him through what he considered premature payments on claims by other members of the management board.
Insurer’s position
Since June 2023, the insurer has relied on the exhaustion of the total insured sum. According to reports on the appeal judgment, it was decisive for the Oberlandesgericht (Higher Regional Court) that the insured event had only occurred in 2020. In the opinion of the Oberlandesgericht, the circumstances from 2019 cited by the claimant had not been properly notified to the insurer.
The relevant insured sum was therefore the EUR 15 million insured sum for 2020. The Oberlandesgericht also approved the payment according to the priority principle, under which the insured sum, which is insufficient for all co-insured persons, may be distributed according to the chronological receipt or satisfaction of claims. The Oberlandesgericht considered the contractual clause enabling such an approach to be valid.
Previous course of the proceedings before the Landgericht and Oberlandesgericht
Decision of the Landgericht Frankfurt am Main
The Landgericht Frankfurt am Main (Regional Court of Frankfurt am Main) upheld the claim to the extent relevant here. It thereby declared in favour of the claimant that the insurer was obliged to provide insurance cover in the form of indemnification and reimbursement of costs for court measures insofar as these are aimed at an injunction against, or retraction of, critical media reporting.
The decision of the Landgericht Frankfurt am Main was handed down on 3 June 2022 under the Aktenzeichen 2-08 O 127/21. The insurer appealed against this judgment.
Decision of the Oberlandesgericht Frankfurt am Main
The Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) amended the judgment of the Landgericht by judgment of 29 November 2024 under the Aktenzeichen 7 U 82/22. It declared that the insurer was obliged to grant the claimant insurance cover in accordance with the policy terms until the exhaustion of the total insured sum in June 2023. This concerned indemnification and reimbursement of costs for court measures aimed at an injunction against, or retraction of, critical media reporting.
For the rest, the Oberlandesgericht dismissed the claim. The decision was expressly described as not final. The Oberlandesgericht granted leave to appeal on points of law to the Bundesgerichtshof.
Appeal on points of law before the Bundesgerichtshof
By means of the appeal on points of law allowed by the Oberlandesgericht, the claimant seeks to have the first-instance judgment reinstated. The Bundesgerichtshof must now decide to what extent the insurer under a D&O insurance policy must reimburse PR costs incurred to avert reputational damage caused by media publications.
The matter pending before the Bundesgerichtshof is being conducted under the Aktenzeichen IV ZR 183/24. According to the press release of the Bundesgerichtshof, the hearing date has been set for 2 December 2026 at 9:00 a.m.
Classification of the insurance-law subject matter in dispute
The case concerns the interface between D&O insurance, contractually agreed legal expenses cover for proceedings, and separate cover for PR costs. The prior decisions show that not only the general recoverability of such costs is significant, but also their contractual allocation to a specific insurance period and the exhaustion of the total insured sum.
The following points in particular may be relevant to the decision:
- the scope of the agreed cover for PR costs in the event of critical media reporting,
- the time at which the insured event occurred,
- proper notification of circumstances relevant to insurance cover,
- the scope of the total insured sum and its exhaustion,
- the validity and application of a priority principle where several insured persons are involved.
In earlier interim relief proceedings, the Oberlandesgericht Frankfurt had already affirmed a contractual claim to PR costs. In parallel, a claim to PR costs up to a sublimit of EUR 100,000 per insured person and insurance period was recognised for a former chief executive officer of the payment services provider concerned.
Frequently asked questions
BGH IV ZR 183/24: What are PR costs under D&O insurance about?
The Bundesgerichtshof is dealing with the question of the extent to which a D&O insurer must reimburse costs for measures against critical media reporting. The subject matter of the dispute is, in particular, court measures seeking an injunction against, or retraction of, such reports.
OLG Frankfurt 7 U 82/22: Why was the 2020 insured sum decisive?
According to the decision of the Oberlandesgericht, the insured event occurred only in 2020 because the circumstances from 2019 cited by the claimant had allegedly not been properly notified. The court therefore based its decision on the 2020 insured sum of EUR 15 million.
D&O insurance and PR costs: What practical consequences may the case have for companies and insured persons?
The case shows that the scope of cover, notification of circumstances relevant to insurance, the insurance period, and exhaustion of the insured sum can carry considerable weight in D&O policies. For companies and insured persons, the contractual drafting of such clauses may therefore be economically significant.
Carefully review contract drafting and coverage issues
The forthcoming decision of the Bundesgerichtshof may be significant for the interpretation of D&O insurance contracts containing provisions on PR costs and reputational damage. Especially in complex insurance programmes, with several insured persons and limited cover amounts, the specific contractual content and the temporal allocation of the insured event are crucial. MTR Legal Rechtsanwälte supports companies, investors, and high-net-worth individuals in matters of contract drafting and disputed coverage issues; further information is available at legal advice in contract law.
