C-IV.B · Commercial Casualty Insurance
Employment practices and fiduciary liability
Employment practices liability (EPL): a CGL responds to bodily injury and property damage caused by an occurrence, plus personal and advertising injury. A wrongful termination or discrimination claim usually alleges lost pay and emotional harm from an employment decision, and CGL forms exclude employment-related practices. EPL insurance fills that gap. Employers buy it by choice; it is not required by law.
Fiduciary liability: under ERISA, a plan fiduciary who breaches a fiduciary duty is personally liable to make good the plan's resulting losses (29 USC §1109(a)). A plan provision that tries to relieve a fiduciary of that liability is void as against public policy (29 USC §1110(a)), so the plan document offers no protection. Section 1110(b) permits fiduciary liability insurance for this personal exposure.
Do not confuse fiduciary liability insurance with the ERISA bond. The required bond protects the plan against loss from fraud or dishonesty by a plan official (29 USC §1112(a)). A claim that an HR director kept overpriced funds on a 401(k) menu, with no theft involved, alleges a poor decision, not dishonesty. The bond does not respond; fiduciary liability insurance does.
Remember
· EPL fills the gap: employment decisions cause economic harm and CGL excludes them.
· ERISA: a breaching fiduciary is personally liable; plan exculpation clauses are void.
· ERISA bond = fraud or dishonesty; fiduciary insurance = breach of duty.
CA
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