presumptive indemnification provision

The presumptive indemnification provision, found in most directors and officers (D&O) liability policies, states that, in a claim situation, it is presumed that the corporate organization has indemnified its directors and officers to the fullest extent permitted by law, regardless of whether the corporation does, in fact, indemnify them.

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The provision is significant because the typical D&O liability policy includes a substantial self-insured retention (SIR) for corporate reimbursement (Side B) coverage but no retention for "direct" (Side A) D&O coverage. At one time, corporations attempted to avoid paying the Side B retention by simply electing not to indemnify the insured directors and officers, forcing the insurer to provide first dollar coverage for the directors and officers. To prevent this, D&O insurers began to insert presumptive indemnification provisions within their forms.