Tender of Defense to Insurance Carrier

Understanding What You're Doing A tender of defense is: A formal demand that the insurance carrier defend your client in litigation A legal notice that triggers the carrier's duty to investigate coverage A document that preserves your client's rights under the policy Often the first shot fired in a coverage dispute Key principle: You're not asking for coverage - you're demanding it. The burden is on the carrier to prove why they shouldn't defend.

Step 1: Timing is Everything Send the tender immediately when: Your client gets sued A claim is made against your client You become aware of potential liability Why timing matters: Many policies require "prompt notice" Delays can void coverage entirely Carriers love to use late notice as a coverage defense The sooner you tender, the sooner the carrier has to make a decision Pro tip: If you're even thinking about tendering, do it. You can't un-ring that bell, but you can always clarify later.

Step 2: Gather Your Materials Before you start writing, collect: The insurance policy (declarations page at minimum, full policy if available) The complaint or claim documents Any correspondence about the underlying matter Documentation of the client relationship/engagement Prior tender letters if this is a follow-up Don't wait for the full policy - carriers often stall on providing complete policy language. Tender based on what you have.

Step 3: Document Structure Header Information: Your letterhead Date Carrier's claims department address (certified mail, return receipt) RE: [Insured's Name], Policy No. [X], Tender of Defense Claim Number (if assigned) Opening Paragraph - The Demand: "We represent [Client Name] in connection with [describe litigation/claim]. We hereby tender the defense of this matter to [Carrier] under Policy No. [X] and demand that [Carrier] assume the defense immediately." Be direct and unequivocal - this isn't a request, it's a demand.

Step 4: Statement of Facts Include only facts relevant to coverage: Basic description of the underlying lawsuit/claim Key allegations that trigger coverage Date of incident (confirm it's within policy period) Location of incident (confirm it's within coverage territory) What NOT to include: Don't admit fault or liability for your client Don't speculate about what "really happened" Don't provide information that could hurt coverage Don't include privileged communications Example: "On [date], Plaintiff filed suit alleging that [basic factual allegations]. A copy of the complaint is attached as Exhibit A. The alleged incident occurred on [date] at [location]."

Step 5: Coverage Analysis - Keep It Simple Don't write a coverage opinion - that's the carrier's job. Instead: Identify the potentially applicable coverage sections Point out key allegations that clearly trigger coverage Note that the duty to defend is broader than the duty to indemnify Reference the "eight corners rule" if applicable in your state Example: "The complaint alleges bodily injury occurring during the policy period arising from [Insured's] business operations, which appears to fall within Coverage A of the policy. Under [State] law, [Carrier] has a duty to defend if there is any potential for coverage based on the allegations."

Step 6: Demand Specific Action Be explicit about what you want: Immediate assumption of defense Assignment of defense counsel Timeline for response Acknowledgment of tender Example paragraph: "We demand that [Carrier] immediately acknowledge this tender, assume the defense of this matter, and assign qualified defense counsel. Please confirm in writing within 10 days that [Carrier] will defend this action. The answer in this matter is due on [date], and we require sufficient time to coordinate with assigned counsel."

Step 7: Preserve Your Client's Rights Include protective language: Reservation of rights to seek coverage under other policies Notice that client will seek reimbursement if carrier wrongfully denies Statement about continuing to defend under reservation Reference to bad faith consequences Example: "This tender is made without waiver of any rights under the policy or at law. If [Carrier] fails to accept this tender, [Insured] reserves all rights to seek reimbursement of defense costs and damages resulting from any wrongful denial of coverage. [Insured] will continue to defend this action under a reservation of rights pending [Carrier's] response."

Step 8: Closing and Logistics Professional closing: Request specific timeline for response Provide your contact information Include certificate of service List enclosures Enclosures typically include: Copy of complaint/claim documents Copy of summons (if applicable) Any relevant correspondence Proof of coverage (declarations page, etc.)

Step 9: Tone and Style Guidelines Do: Be professional but firm Use declarative statements, not tentative language Be concise - 1-2 pages maximum usually Stick to facts and avoid argument Use business letter format Don't: Be adversarial or threatening (yet) Admit any wrongdoing by client Argue coverage extensively - that comes later if needed Include irrelevant background information Use uncertain language ("may," "might," "appears")

Step 10: Special Considerations Multiple Policies: If client has multiple potentially applicable policies, tender to all of them simultaneously and note the others in each tender. Excess Coverage: If tendering to excess carrier, note the status of primary coverage and include documentation.

Common Mistakes to Avoid: Waiting too long - tender immediately upon notice Over-explaining coverage - let the carrier do the analysis Admitting facts harmful to coverage - stick to complaint allegations Being wishy-washy - this is a demand, not a request Forgetting to set deadlines - give carrier specific timeframe to respond Not sending certified mail - you need proof of receipt Including privileged information - work product, client confidences Ignoring policy conditions - notice provisions, cooperation clauses

Document all additional costs

Final Reminders: This letter does three critical things: Triggers the carrier's duty to investigate and make a coverage decision Preserves your client's rights under the policy Starts the clock ticking on the carrier's response obligations Quality control checklist: Policy number correct? Incident date within policy period? All relevant allegations identified? Specific demands made? Deadline for response set? Certified mail, return receipt? Client approval obtained? Remember - insurance carriers get hundreds of these. Make yours stand out by being clear, professional, and legally sound. The goal is to make it as easy as possible for them to say "yes" and as difficult as possible for them to say "no." Now draft it up and bring it to me for review before it goes out