Italian Supreme Court: where the insurable risk is absent the D&O policy is void

By Order No. 18458/2026, published on 8 June 2026, the Italian Supreme Court clarified the scope of application of so-called “D&O” policies (Directors & Officers Liability Insurance), holding that clauses that provide for the reimbursement to the company of sums paid by it to directors by way of indemnity are void where no actual insurable risk exists.

The Supreme Court reaffirmed that the clause, inserted in a so-called ”D&O” policy, by virtue of which the insurer undertakes to indemnify a commercial company for sums paid by it to its director in order to hold him harmless from the third-party damages claims arising from willful misconduct or negligence in the performance of the director’s duties, is void for the non-existence of the risk pursuant to Article 1895 of the Italian Civil Code, where the company is not legally obliged, by law or by contract, to indemnify the directors. In such a case, indeed, the company bears no actual patrimonial risk and one of the essential elements of the insurance contract is lacking.

To access the decision, click here.