Identify issues that may lead to a potential conflict of interest between an insurer and its policyholders; and an admission that an insured read and understood the agreement and may have had the opportunity to obtain legal advice prior to signing. On the other hand, an insured should be concerned about the protection of his or her own rights. An insured should ask for clarification as to why the insurer is considering refusing to cover the cases. Before executing a non-waiver agreement, an insured should seek legal advice on the legal effect of the non-waiver agreement on his or her ability to enforce police coverage rules. The doctrine of waiver was defined as follows in the case of the Alberta Court of Appeal of Mitchell – Jewell Ltd. against Canadian Pacific Express Co.: The insurer`s defence obligation and its obligation to compensate are defined in the terms of the insurance policy. The duty of defence in the defined definition arises from the charges against the insured. A non-waiver agreement will allow an insurer to defend claims while reviewing and possibly denying coverage under a policy. This may be of dramatic value because of the potential cost of not awarding a valid defence if an insurer is found to have a defence obligation. To be a little more prosaic, which S.810, McLachlin J. cited with the agreement O`Sullivan J.A. direction to consider “the nature of the assertion made”.
I was surprised to learn that a number of insurers wrongly require Hurricane Michael policyholders to sign non-waiver agreements or letters from rights receivers before their investigation begins. A copy of such an agreement is attached. Instead of a non-waiver agreement or a reserve letter, an insurer may refuse coverage and become involved as a third party in the litigation. The decision to refuse coverage must be made on a sufficiently strong and justified basis in the circumstances of each policy. The effectiveness of a reserve letter depends on the clarity of the statement of the situation, the amount of information provided, the reasons for refusal of coverage and the timing of the letter`s writing. It is important to note that the courts were more willing to accept a reservation if a non-waiver agreement had been sought, but the insured did not enforce it. When a new claim is submitted, insurance companies often reserve the insurance policyholder`. Otherwise, some insurers will issue a non-waiver agreement. By establishing a non-waiver agreement, insurers strive to preserve potential coverage by ensuring that the policyholder agrees that the insurer can investigate the claim or defend the policyholder, while preserving the right to challenge coverage at a later date. A typical agreement without waiver may be as follows: an alternative to a non-waiver agreement is a property reserve. Such a letter would contain essentially the same information and would aim to provide the same protection for the insurer. The main difference is that it is a one-sided document that the courts will rely less on on a regular basis because the insured is not accepted.
The case law on non-waiver agreements is such that a non-waiver agreement, as established, should be included: under insurance law, a non-waiver clause is a provision in the contract stipulating that the insured recognizes that the investigation or defence of an insurer`s claim against the insured does not waive the insurer`s right to challenge the coverage at a later date. In general, the purpose of the non-waiver clause in a contract is to protect a party that excuses the other party`s non-compliance with the contractual terms and to prevent the parties` conduct from resulting in the loss of the applicability of the actual contractual terms.