right of recourse provision

A provision in a fiduciary liability policy giving an insurer the right to subrogate (i.e., collect monies from a party responsible for causing a loss, for which an insurer has already made an indemnity payment) against an insured. Right of recourse provisions are particular to fiduciary liability insurance policies and represent an exception to the general practice in the insurance industry whereby insurers do not subrogate against insureds. The rationale for right of recourse provisions is that Section 410(b)(1) of ERISA allows an insurer to pursue recourse against a covered fiduciary, if the premium for a fiduciary policy is paid from the assets of an employee pension or welfare plan. This is because fiduciaries should not be financially absolved from the consequences of their wrongful acts when premiums for liability coverage are being paid from the assets of the benefit plans they are administering-to the detriment of the beneficiaries of those plans. However, most fiduciary liability policies also indicate that by payment of a specified additional premium, the insurer will waive its right of recourse. Accordingly, waiver of recourse endorsements are beneficial whenever arranging coverage for fiduciaries.


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