December 17, 2014

Whose Policy Is It, Anyway? A Debtor’s Insurance Policies and Rights to Policy Proceeds

Leslie A. Davis

Whether the proceeds of an insurance policy constitute property of a debtor’s estate can have important ramifications. If policy proceeds are property of the bankruptcy estate under 11 U.S.C. § 541(a)(1), they are subject to the automatic stay, and insurers (or entities seeking payments from the policy) must seek relief from the automatic stay before making any advances or payments under the policy. Further, to the extent that policy proceeds are property of the estate, those proceeds increase the overall value of the estate for the benefit of creditors. 

Section 541(a) of the Bankruptcy Code broadly defines a debtor’s bankruptcy estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case.” Pursuant to that broad definition, courts throughout the country typically have considered a debtor’s insurance policies to become property of the estate upon the commencement of a bankruptcy case. But even as a debtor’s insurance policies themselves may be property of the estate, the proceeds of those policies may not. A split of authority has developed on this issue, and the answer generally appears to depend on the type of policy and policy language at issue, though the particular circumstances of a case may impact the result. Directors’ and Officers’ (D&O) liability policies purchased by a debtor are among those that raise more difficult questions, as they often provide different types of coverage to different entities. 

When Are Insurance Proceeds Property of a Debtor’s Estate?

Determining what constitutes property of a debtor’s estate must be analyzed in light of the facts of each case. The “overriding question” in determining whether the proceeds of an insurance policy constitute property of the estate is “whether the debtor would have a right to receive and keep those proceeds when the insurer paid on a claim.” In re Edgeworth, 993 F.2d 51, 55–56 (5th Cir. 1993). That inquiry turns on the nature of the policy and the specific provisions governing the parties’ interests in the payment of policy proceeds. As the Fifth Circuit has explained, “the question is not who owns the policies, but who owns the [ ] proceeds. Although the answer to the first question quite often supplies the answer to the second, this is not always so.” In re Louisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir. 1987). Thus, if a debtor has no legally cognizable claim to the insurance proceeds – that is, where the proceeds are not payable to or for the direct benefit of the debtor – the proceeds generally are not considered property of the estate. 

Policy Proceeds Payable to the Debtor Are Generally Property of the Estate

Insurance proceeds that are paid directly to a debtor pursuant to the terms of the insurance contract are generally held to be property of the estate. This is frequently the case in the context of so-called “first party” insurance coverage – i.e., insurance policies that provide coverage for losses sustained directly by the insured, such as casualty, collision, life, and fire insurance policies. Proceeds of such insurance policies, if made payable to the debtor rather than a third party such as a creditor, have been recognized to be property of the estate. But even where policy proceeds are considered property of the estate, those proceeds are not necessarily available for distribution to creditors on a pro rata basis. Indeed, courts have recognized that “property of the estate comes into the estate subject to all restrictions applicable to that property under state law,” and as a result, “insurance proceeds, if they were considered property of the estate, necessarily would be distributed only to those whom the state insurance law, or the policies themselves, gave a right to distribution.” Landry v. Exxon Pipeline Co., 260 B.R. 769, 787 n. 62 (Bankr. D. La. 2001). 

Policy Proceeds Paid Only To Third Parties Are Generally Not Property of the Estate

In contrast, courts have recognized that policy proceeds are not property of a debtor’s estate where those proceeds are not payable to the debtor and cannot inure to the debtor’s pecuniary benefit. For example, proceeds paid from a commercial general liability (CGL) policy that provides coverage for losses sustained by others as a result of the insured’s business operations, payable to a third party, will likely not be considered part of the estate. Likewise, certain courts have distinguished indemnity insurance from general liability insurance on the grounds that proceeds of indemnity insurance – payable based upon debtor’s liability to a third party – are property of the debtor’s estate because the proceeds of such insurance are paid directly to the debtor. 

Other Considerations: “Secondary Impact”

Courts in certain cases where liability insurance proceeds were insufficient to cover all tort claims potentially falling within the debtor’s insurance coverage either have held that the insurance proceeds fall within the scope of property of the estate or have enjoined litigation under 11 U.S.C. § 105 because of the “secondary effect” that payment of the insurance proceeds to tort claimants will have on the remaining claims against the estate and the debtor’s reorganization efforts. Under the “secondary effect” theory, the insurance proceeds themselves are not property of the estate insofar as they are payable directly to claimants; rather, some courts have found that having claims against the estate satisfied out of insurance proceeds has a “secondary effect” on the overall administration of the bankruptcy estate, since every dollar that an insurance policy pays for covered tort claims is an extra dollar for other, non-tort creditors and potentially for the debtor as well. See A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 1008 (4th Cir. 1986), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). 

The “secondary effect” cases appear to involve Chapter 11 debtors seeking to reorganize by centralizing numerous lawsuits in a single forum and obtaining relief from tort liability through a Chapter 11 plan of reorganization that would provide for the resolution and payment of those tort claims. The “secondary effect” theory thus may not apply in cases involving liquidating debtors. Indeed, as the court explained in Correct Manufacturing, “[i]n contrast to the Chapter 11 debtor who has equitable interests in the proceeds of such policies because of its need to decrease liability from which third parties’ claims derive . . . and retain the ability to structure settlements of classes of claims,” a Chapter 7 debtor’s estate “has no such equitable interests,” such that the Chapter 7 debtor’s liability insurance proceeds would not be considered property of the estate. In re Correct Mfg. Corp., 88 B.R. 158, 162 (Bankr. S.D. Ohio 1988). 

The court in Landry rejected the “secondary effect” approach as “utterly backwards,” finding that policy proceeds that are not otherwise payable to a debtor cannot somehow become property of the estate “merely because such property has the effect of reducing the estate’ s liability, or because of some other beneficial effect such property has on the estate.” 

Murky Waters: D&O Policy Proceeds

Whether policy proceeds constitute property of the estate becomes a murkier issue in the context of D&O insurance. D&O insurance is designed to protect individual corporate officers and directors and – under some policies – the corporation itself. D&O policies commonly offer different types, i.e., “sides” of coverage, including: (1) coverage for individual officers and directors for losses that the corporation itself cannot indemnify, (2) reimbursement for amounts corporation pays to indemnify its officers and directors, and/or (3) coverage for certain types of securities claims that may be made directly against the company. 

Courts generally agree that if a debtor’s D&O policy provides protections solely for the company’s directors and officers (i.e., “Side A”-only coverage), then the proceeds of that policy do not belong to the bankruptcy estate. This is true even if the debtor asserts a claim against covered officers or directors for which there would be coverage under the policy. 

In practice, however, most D&O policies cover both individuals and the company itself. In addition to Side A coverage, the policies provide indemnity coverage (i.e., “Side B” coverage), entity coverage (i.e., “Side C” coverage for liability judgments against the corporation for securities claims) or both. Courts considering whether proceeds from D&O policies that include such coverage are also property of the bankruptcy estate have reached differing conclusions. 

As with other types of insurance policies, courts determining whether D&O policy proceeds constitute estate property examine the language and scope of the specific policies at issue, along with the particular facts of each case. 

Several courts have held that proceeds of D&O policies offering only Side A and Side B coverage are not property of the estate because debtors did not have a “direct interest” in those proceeds. 

Others have concluded that debtors had the requisite “direct interest” in Side B and/or Side C proceeds, such that they constitute property of the estate, because applicable limits of policy coverage could be depleted by the indemnification or judgments, potentially rendering the company without coverage for future indemnification demands or securities-related judgments. The proceeds may, however, only be property of the estate to the extent that they actually protect the debtor’s assets. Thus, where the covered indemnification or judgment “has not occurred, is hypothetical, or speculative” – i.e., if indemnification has not yet been requested or has been requested only in an amount well below the policy limit, or if there is no real threat of a potential judgment – then courts may find that the policy proceeds are not property of the estate. 

Still other courts have relied on the more general proposition that a bankruptcy estate includes any assets that increase the value of the estate. Thus, at least so long as the policy includes Side B or Side C coverage, the policy proceeds meet that “fundamental test” because the bankruptcy estate is worth more with the policy than without it. In Circle K, for example, the court noted that the availability of D&O coverage can directly affect a debtor’s efforts to attract new directors and officers to its team and that a bankrupt company may find it difficult to obtain new D&O policies when its current policy limits are exhausted. Circle K Corp. v. Marks (In re Circle K Corp.), 121 B.R. 257 (Bankr. D. Ariz. 1990). 

Finally, some courts have adopted approaches somewhere in the middle. Courts in several cases have recognized a distinction between debtor’s and non-debtor’s rights under a D&O policy, and hold that the debtor’s rights under the policy become property of the estate, while a non-debtor’s rights (such as those of the covered individual directors and officers) under the same policy do not become property of the estate. Others have treated D&O policies and proceeds thereof as property of the estate within the meaning of Section 541, but have recognized non-debtor third parties’ rights in those policies and made reasonable accommodations – such as permitting those third parties to access the policy proceeds up to a certain amount – to protect their interests. 

In short, there is no clear-cut answer as to whether D&O policy proceeds constitute property of a debtor’s estate. Because different policies provide different types of coverage for different insureds, and claims may be asserted against more than one insured at a time, courts will carefully review the claims being asserted along with the specific language of the D&O policies at issue to determine whether policy proceeds are part of the debtor’s estate. Some insurance underwriters, attempting to address the conflicting case law on whether D&O policy proceeds are property of the estate, have developed priority of payment provisions that predetermine the order of payment of loss among the three coverage parts of a D&O policy. Those provisions typically require that insurers pay for loss under Side A, then under Side B, and finally under Side C to effectuate the parties’ intent that the D&O policy limit the potential exposure of directors and officers and to undermine claims that the policy proceeds are part of the bankruptcy estate. 


Insurance can be an important asset for a debtor and its creditors, and the issue of whether policy proceeds are property of the estate may be critical to certain creditors’ recovery as well as to those who receive payments from the policies. While there are some generally-recognized principles in determining whether proceeds of a policy constitute property of the estate, the law continues to evolve and courts at times have been willing to view “property” in a flexible way when it comes to insurance.

Leslie A. Davis

Counsel, Crowell & Moring LLP

Leslie A. Davis is counsel at Crowell & Moring LLP in Washington, D.C.