Toolkit · Insurance

The Tender, Reservation of Rights, and Coverage Dispute Toolkit

28 U.S.C. § 1332

Type
Toolkit
Jurisdiction
National
Date
2025-10-25
Topic
Insurance

This toolkit contains the letters and worksheets that decide liability coverage disputes. It supplies a tender letter that starts obligations running, a parallel additional insured tender, a policy and claim file request, and a response to a reservation of rights that preserves objections while accepting the defense. It contains a demand for independent counsel, a letter demanding acceptance of a within-limits settlement offer, and a response to a denial that sets up the coverage action. It supplies a coverage chart for long-tail claims, a policy review worksheet, a declaratory judgment complaint outline, and a defense cost ledger. Each item is annotated with the deadline it protects and the mistake it prevents. All are starting points to be conformed to the policy and to the law of the governing jurisdiction.

The Tender, Reservation of Rights, and Coverage Dispute Toolkit

Insurance > Liability Coverage and the Duty to Defend | Published 25 October 2025 - Updated 8 August 2026 | UpLaw - uplaw.us

What Is In This Toolkit

Fourteen documents. Use them with the checklist for sequence, the guide for the governing standards, and the article for orientation.

⚠️ Send the tender first and edit later. A same-day imperfect tender beats a polished one sent in three weeks.

Tool 1 — Tender Letter

VIA EMAIL AND CERTIFIED MAIL Re: Notice of Claim and Tender of Defense and Indemnity — [Insured] — Policy No. [__]

Dear [Claims Department]:

This letter tenders the defense and indemnity of the enclosed matter to [Insurer] under the above policy.

1. The claim. On [date], [Insured] was served with the enclosed [Complaint / demand letter] in [caption], [court], Case No. []. A response is due [date]. 2. The allegations. [Two to four neutral sentences describing what the complaint alleges. Emphasize the allegations that are potentially covered — negligence, accident, property damage, personal and advertising injury offenses.] 3. Coverage. These allegations describe [bodily injury / property damage] caused by an occurrence during the policy period, and [Insured] is an insured under the policy. [If additional insured: [Insured] is an additional insured under endorsement [form number] pursuant to the enclosed [contract], § [].] 4. Demand. [Insured] demands that [Insurer] (a) immediately assume the defense of this action, (b) confirm indemnity coverage, and (c) confirm in writing before [date] so that a response can be filed on time. 5. Requests. Please provide a complete certified copy of the policy, including all endorsements and the declarations. If [Insurer] intends to reserve any rights, please identify each provision relied upon and its application to these allegations. If a reservation creates a conflict, please confirm whether [Insurer] will fund independent counsel of [Insured]'s selection. 6. Reservation. [Insured] reserves all rights, including the right to recover defense costs incurred pending [Insurer]'s response, and does not waive any argument by proceeding to protect itself in the underlying action.

Enclosures: Complaint · Summons · Demand letter · Incident documentation · Contract requiring coverage cc: [Broker] · [Other carriers]

Tool 2 — Additional Insured Tender

Send this to both the named insured and its carrier.

"Re: Tender pursuant to additional insured obligations — [Project/Contract]

[Company] tenders the defense and indemnity of [caption] to [Subcontractor/Vendor] and to [its Insurer].

1. Contractual obligation. Section [] of the [contract dated ] requires [Subcontractor] to (a) indemnify [Company] for claims arising from [Subcontractor]'s work, (b) name [Company] as an additional insured on a primary and noncontributory basis, and (c) obtain a waiver of subrogation. The relevant pages are enclosed. 2. The claim. The complaint alleges [injury] arising from [Subcontractor]'s [work/product] performed on [date]. 3. Demand on [Subcontractor]. [Company] demands defense and indemnity under § []. 4. Demand on [Insurer]. [Company] demands defense and indemnity as an additional insured under endorsement [form number] on Policy No. []. Please confirm [Company]'s status, provide a complete certified copy of the policy and the endorsement, and confirm whether coverage is primary and noncontributory. 5. Deadline. A response in the underlying action is due [date]. Please respond in writing by [date]. 6. Costs. [Company] will seek recovery of all defense costs incurred pending your response."

⚠️ A certificate of insurance is not the endorsement. Ask for the endorsement by form number and read the granting language: "arising out of" is broad; "caused, in whole or in part, by" requires fault by the named insured.

Tool 3 — Policy and Claim File Request

"Please provide, within fourteen days:

  1. A complete certified copy of Policy No. [] for the period [], including the declarations, all coverage forms, all endorsements, and any schedules — not a specimen form.
  2. Copies of all policies issued by [Insurer] to [Insured] for the period [] to [].
  3. The loss runs for those years.
  4. Any certificate of insurance issued naming [Company].
  5. If coverage is denied or reserved: the complete claim file, including adjuster notes, diary entries, coverage analyses, and correspondence.
  6. The claims-handling guidelines applicable to this claim type. Please state whether any responsive material is withheld and on what basis."

Tool 4 — Response to a Reservation of Rights

Accept the defense. Preserve everything else.

"Re: [Insurer]'s letter of [date] reserving rights

[Insured] accepts the defense [Insurer] has agreed to provide and will cooperate fully. [Insured] does not agree with the coverage positions stated and preserves all objections.

1. Specificity. [Insurer]'s letter reserves rights based on [list what it identified] and also purports to reserve "all rights under the policy." [Insured] objects to any general reservation and takes the position that grounds not specifically identified are not preserved under the law of [state]. 2. The identified provisions. [Insured] disagrees that [exclusion/definition] applies because [one or two sentences]. 3. Conflict and independent counsel. [Insurer]'s reservation regarding [issue] creates a conflict, because the manner in which the underlying action is defended will affect the coverage outcome — specifically, whether [fact] is established. [Insured] therefore requests that [Insurer] fund independent counsel of [Insured]'s selection, [name], at [rate/the rate permitted by law]. Please confirm by [date]. 4. Defense counsel's duties. [Insured] instructs that appointed counsel represents [Insured] and may not communicate to [Insurer] information bearing on coverage, and may not shape the defense to favor an uncovered theory. 5. Verdict form. [Insured] requests that [Insurer] confirm it will not oppose a special verdict distinguishing the theories of liability. 6. Reservation. [Insured] reserves all rights, including any claim for breach of contract, breach of the implied covenant of good faith and fair dealing, and statutory remedies."

Tool 5 — Response to a Denial

"Re: [Insurer]'s denial of [date]

[Insured] disputes the denial and demands that [Insurer] reconsider and assume the defense immediately.

1. The standard. Under the law of [state], the duty to defend arises if any allegation in the complaint is potentially within coverage, and it extends to the entire action. Ambiguity is resolved in favor of a defense. 2. The potentially covered allegations. Paragraphs [] allege [facts describing an accident / negligent supervision / property damage / an enumerated personal and advertising injury offense]. Those allegations, taken as true, fall within the insuring agreement. 3. The exclusion relied upon does not apply because [reason], and in any event it does not reach Count []. 4. Extrinsic facts known to [Insurer] and supporting coverage include [facts]. [In this state, extrinsic evidence establishing coverage is properly considered.] 5. Consequences. If [Insurer] maintains its denial and a court determines a defense was owed, [Insured] will seek all defense costs, any judgment or settlement, consequential damages, [attorney's fees under [statute]], and will evaluate claims for breach of the implied covenant of good faith and fair dealing. 6. Demand. Please confirm by [date] whether [Insurer] will assume the defense. In the absence of a response, [Insured] will retain counsel at [Insurer]'s expense and will proceed accordingly. 7. Documents. Please provide the complete claim file and the coverage analysis supporting the denial."

Tool 6 — Demand for Independent Counsel

"A conflict of interest exists because [Insurer] has reserved rights on [issue], and the resolution of that issue in the underlying action will determine coverage. Specifically, if the trier of fact finds [covered fact], coverage exists; if it finds [uncovered fact], [Insurer] contends it does not. Appointed counsel selected and paid by [Insurer] would be positioned to influence that determination.

Under [state authority], [Insured] is entitled to counsel of its own selection at [Insurer]'s expense. [Insured] selects [firm], whose rates are [__] and who will [report as required / maintain the confidentiality of coverage-relevant information].

Please confirm by [date]. If [Insurer] disputes the existence of a conflict, please state the basis in writing so the question can be presented to the court if necessary."

Tool 7 — Demand That the Insurer Accept a Within-Limits Offer

The single most important letter in a case with excess exposure.

"Re: [Claimant]'s settlement demand of [date] — demand that [Insurer] accept

[Claimant] has offered to settle all claims against [Insured] for $[], which is within the $[] limit of Policy No. [__]. The offer expires [date].

[Insured] demands that [Insurer] accept. The evidence of liability is [summarize]. The damages evidence is [summarize]. A verdict materially in excess of the limits is a realistic possibility.

[Insured] has no ability to satisfy a judgment above the policy limits. Any excess judgment would fall on [Insured] personally and would [describe consequence].

If [Insurer] declines, please state in writing before the offer expires: (a) [Insurer]'s evaluation of the claim's settlement value; (b) the reasons for declining; (c) whether [Insurer] will contribute to a settlement funded in part by [Insured]; and (d) whether [Insurer] has notified any excess carrier.

[Insured] reserves all rights, including any claim arising from a failure to settle within limits."

Tool 8 — Coverage Chart

Build this before negotiating anything on a long-tail claim.

Year Carrier Policy no. Period Per-occ. limit Aggregate SIR/ded. Defense inside limits? Attachment (excess) Pollution excl. form Trigger language Solvent? Prior release/buyback
2008
2009

Where policies are missing, reconstruct from: broker and agent files; premium entries in the general ledger; certificates of insurance issued to third parties; loss runs; prior litigation files; board minutes approving insurance purchases; schedules in financing and acquisition documents; and industry form libraries for the relevant years. Secondary evidence of a lost policy is admissible everywhere; the insured bears the burden on its terms.

Tool 9 — Policy Review Worksheet

Item Answer Where
Named insured — is it the operating entity? Dec page
Policy period Dec page
Per-occurrence / aggregate limits Dec page
Retention or deductible; applies to defense? Dec page
Trigger: occurrence / claims-made / claims-made-and-reported Coverage form
Retroactive or prior acts date Dec / endorsement
Defense costs inside or outside limits? Supplementary payments
Consent to settle required? Hammer clause? Conditions
Notice requirement and to whom Conditions
Voluntary payments condition Conditions
"Other insurance" clause type Conditions
Exclusions of concern (list by number) Coverage form
Endorsements added since last year Forms schedule
Additional insured endorsements we grant Endorsements
Additional insured status we hold under others' policies Their endorsements
Waiver of subrogation / primary and noncontributory Endorsements

Tool 10 — Declaratory Judgment Complaint Outline

I. Parties and jurisdiction. Diversity under 28 U.S.C. § 1332; declaratory relief under 28 U.S.C. § 2201 and § 2202 and Rule 57. Trace every entity's citizenship. II. Necessary parties. The insured; the underlying claimant, whose interest would be practically impaired under Rule 19; other carriers in the tower. Address the effect on diversity. III. The policy. Attach it. Quote the insuring agreement, the definitions, the exclusions relied upon, and the conditions. IV. The underlying action. Attach the complaint. Quote the allegations that are potentially covered. V. Count I — Duty to defend. Ask for a declaration decidable now, on the pleadings and the policy, without adjudicating underlying facts. VI. Count II — Duty to indemnify. Plead it, and request that it be stayed until the underlying action resolves. VII. Count III — Breach of contract. Defense costs incurred, with interest. VIII. Count IV — Breach of the implied covenant / statutory bad faith. Plead if supported, and expect bifurcation. IX. Attorney's fees. Cite the statute or common-law rule of the forum, if any. X. Prayer. Precise declarations, in numbered form, that a court can enter verbatim.

Tool 11 — Defense Cost Ledger

Keep this from day one, whether or not the insurer is paying.

Date Provider Description Amount Paid by Reimbursement sought? Invoice ref.

Track separately: attorney's fees; expert fees; court reporter and transcript; filing and service; investigation; travel; mediation; and copying. Note which relate solely to uncovered claims, because in some jurisdictions those may be allocable even where a defense is owed for the whole action.

Tool 12 — Excess Carrier Notice

"[Insured] is a named insured under Policy No. [] issued by [Excess Insurer], attaching above $[] of underlying limits.

[Insured] gives notice of [caption], in which [Claimant] alleges [claim] and seeks damages that may exceed the underlying limits. [Underlying insurer] is defending [without reservation / under a reservation of rights dated [__]].

Current status: [trial date; expert disclosures; mediation date]. Current evaluation: [range]. Underlying limits remaining: $[__] [after erosion by defense costs, if applicable].

[Insured] requests confirmation of coverage and will continue to report developments. Please identify any consent or reporting requirements under the policy."

Tool 13 — Bad Faith Preservation Memo

Prepare this contemporaneously; do not reconstruct it later.

1. The demand. Date, amount, expiration, and whether within limits. 2. What the insurer knew. Liability evidence, damages evidence, and when each was communicated. 3. What the insured said. The written demand to accept, the statement of personal exposure, and the date. 4. What the insurer said. Its evaluation, its reasons, and the date. 5. What happened after. Verdict or settlement amount, the excess over limits, and the consequences to the insured. 6. Documents. Correspondence, claim file entries obtained in discovery, defense counsel's evaluations, and reserve entries. 7. The standard in this state. Negligence, bad faith, or strict liability for refusing a reasonable within-limits demand; whether a statutory unfair claims practices claim exists; and whether punitive damages are available, subject to Gore and Campbell.

Tool 14 — Authority Quick Card

Declaratory relief and parties: 28 U.S.C. § 2201 · § 2202 · Rule 57 · Rule 19 · Rule 22 · 28 U.S.C. § 1335 · § 2361 · § 1332 McCarran-Ferguson: 15 U.S.C. § 1011 · § 1012 · § 1013 · Humana · Hartford Fire ERISA: 29 U.S.C. § 1132 · § 1133 · § 1144 · Pilot Life · Taylor · Davila · Miller · Ward · Rush Prudential Punitive limits: Gore · Campbell · Philip Morris Other overlays: 42 U.S.C. § 9607 · 49 U.S.C. § 13906 · 49 C.F.R. part 387 · 11 U.S.C. § 362 · § 541 · § 524 · 9 U.S.C. § 2

Tool 15 — Tender Log

One page. It answers the question that decides late-notice disputes: what did you send, to whom, and when.

# Carrier Policy no. Line Period Date tendered Method Acknowledged Position (accept / ROR / deny / silent) Date of position Notes
1 CGL Email + certified
2 Umbrella
3 Auto
4 EPLI
5 Cyber
6 D&O
7 Homeowner's / personal umbrella
8 Additional insured (other party's policy)
9 Prior year — [year]

Rule: a row with no date in "Date tendered" is a coverage asset you have not claimed. Rule: follow up in writing at fourteen days on any row where "Acknowledged" is blank.

Tool 16 — Broker Inquiry Letter

The broker's file is frequently the fastest route to policies the insured cannot locate.

"Re: [Insured] — request for policy information in connection with a claim

[Insured] has been sued in [caption], alleging [claim] arising from events on or about [date range]. Please provide, within ten business days:

  1. A list of every policy placed for [Insured] and its predecessors and affiliates from [year] to present, by line, carrier, policy number, period, and limits.
  2. Complete copies of each policy for the period [__], including endorsements.
  3. Loss runs for those years.
  4. Certificates of insurance issued on [Insured]'s behalf naming any third party as an additional insured, and certificates issued to [Insured] by others.
  5. Any applications, proposals, or binders for those years.
  6. Any correspondence regarding coverage placed, declined, or not renewed in those years.

Please also confirm whether [Broker] has given notice of this claim to any carrier on [Insured]'s behalf, and to whom."

Tool 17 — Settlement Consent and Allocation Memo

Before any settlement is signed, resolve these in writing among the insured, the primary carrier, and any excess carrier.

1. Who pays what. Primary contribution $[]; excess contribution $[]; insured contribution $[]; other party contribution $[]. 2. What is released. All claims by [Claimant] against [Insured] arising from [event]. Confirm whether claims against additional insureds and affiliates are included. 3. What is not released. Coverage claims between the insured and the carriers, and contribution claims among carriers, are expressly preserved. 4. Allocation among claims. State the allocation between covered and uncovered claims, and between policy periods if more than one is triggered, or expressly reserve the allocation for later determination. 5. Exhaustion. State whether the primary limits are exhausted by this payment and whether the excess layer attaches. 6. Consent. Confirm each carrier whose consent the policy requires has given it, in writing. 7. Liens. Confirm resolution of any medical, ERISA, Medicare, or statutory lien before funds are disbursed. 8. Defense costs. State whether defense costs incurred to date are reimbursed, waived, or reserved for later resolution.

⭐ Do not sign a global release that resolves the underlying case and the coverage dispute unless you intend to. A release drafted by the claimant will often, by its terms, wipe out coverage claims the insured has against its own carrier. Paragraph 3 above is the paragraph most often omitted and most often regretted.

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