First Party Claims: Affidavit Of Documents (And Conclusion) - Part 7 Of 7

First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer

Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.

We will focus on what needs to be included in the affidavit of documents for first party actions.

Plaintiff / Insured

Schedule A

All documents relevant to the claim: If the duty to defend and/or duty to indemnify is pleaded, all documents with regards to the claim in which the insured wants the insurer to intervene (including the notice of claim, the pleadings of that action, correspondence, etc.) If a loss is claimed, all documents regarding proving the loss except for any documents that may be privileged (including fire marshal report, police report, clinical notes from medical practitioners, receipts, etc.) All documents regarding the insurance policy All correspondence between insurer and its representatives (i.e. adjusters, brokers, experts retained by either party where the report has been released) and insured Any other insurance policy that may apply to the loss (for example, overlapping policies, umbrella policies, excess insurance, etc.) Schedule B

Standard expert reports on which you do not wish to rely, etc. Correspondence between insured and the retained lawyer Offers to settle are generally included in Schedule B, but the Plaintiff may wish to/be obliged to divulge offers to the defendant insurer in the context of a claim for indemnification after judgment has been rendered against the insured, for instance Defendant / Insurer

Schedule A

A copy of the policy, including any endorsements and added policy terms All correspondence between the insurer and the insured Application for insurance Proof of Loss, if one received Adjuster's notes, unless privilege is claimed Schedule B

Adjuster's notes regarding the loss, if you can establish litigation privilege.1 There is considerable case law on this point Standard expert reports on which you do not wish to rely, surveillance, etc. Correspondence between the insurer and its lawyer The insurer's reserves are not relevant and do not need to be disclosed. However, depending on the allegations made against the insurer, the underwriting file may have to be disclosed in Schedule "A".2

Both Parties

Schedule C

...