Tender Letter Denial

Draft a formal denial of a tendered defense/indemnification demand that builds a defensible record for potential coverage litigation.

Prerequisites

Collect before drafting:

Tender letter — demand being denied, with date and sender
Governing agreement — contract, policy, or lease containing the indemnification provision
Underlying complaint/claim — allegations, parties, damages, legal theories
Supporting evidence — correspondence, reports, expert opinions, photos bearing on indemnity scope
Client info — full legal name of denying party and counsel details

Quick Start

Gather all prerequisites above
Identify delivery method per contractual notice requirements
Draft letter sections in order below
Build multiple independent denial grounds (position survives if one fails)
Run checks before finalizing

Letter Sections

1. Header & Denial Statement

Letterhead, date, addressee (per tender letter signer), delivery method per contract
Re: line with case caption, claim/contract/policy number, date of loss
Identify counsel and client; acknowledge tender receipt by specific date
State denial unambiguously: "This letter constitutes [Client]'s formal denial of your tender of defense and indemnification dated [date] in the matter of [caption]."

2. Substantive Analysis

Quote the exact indemnification language, then address applicable grounds:

| Ground | Focus | |--------|-------| | Scope exclusion | Claim outside "arising out of" / "caused by" / "in connection with" language per jurisdiction | | Indemnitee's own negligence | Sole/active negligence or willful misconduct excluded by provision or public policy | | Causal break | Indemnitee's independent acts sever causal chain | | Specific exclusions | Match allegations to carve-outs (IP, employment, environmental, E&O, law violations) | | Anti-indemnity statutes | Provision unenforceable under applicable statute — VERIFY for jurisdiction | | Control/responsibility | Evidence of indemnitee's exclusive control, prior notice, or independent modifications |

For each ground: cite specific evidence (complaint paragraphs, communications, reports, dates).

Apply jurisdiction-specific interpretation: construe ambiguities against drafter, read contract as a whole, give effect to reasonable expectations.

3. Procedural Deficiencies

Assert as independent denial grounds where applicable:

Untimely notice (cite contractual deadline vs. actual notice date)
Missing required documentation (complaint, demand, proof of loss)
Wrong recipient or delivery method
Failure to cooperate with investigation/defense
Failure to satisfy conditions precedent

4. Conditional Reconsideration

Offer a window (14–21 days) to submit additional information that materially alters the analysis. State that until such showing, client maintains denial and will not assume defense or indemnification obligations.

5. Reservation of Rights

Reserve:

Defenses — late notice, failure to cooperate, breach, failure to mitigate, unauthorized settlement
Affirmative claims — reverse indemnification, contribution, breach of contract
Enforceability challenges — lack of clear/unequivocal own-negligence language, anti-indemnity statutes, unconscionability

6. Closing

Professional signature block (name, title, bar admissions, firm, contact)
cc: only if strategically appropriate — weigh privilege and work-product implications

Checks

Tone: Professional, confident, non-inflammatory — letter may become a coverage-litigation exhibit
Citations: Verify all statutory citations and jurisdictional interpretation rules
Evidence: Reference concrete facts (dates, documents, communications), not conclusory assertions
Consistency: Proofread party names, dates, document titles, and contract references throughout
Privilege: Assess whether cc distribution may waive attorney-client privilege or work-product protection
Length: Target 2–4 pages depending on complexity