Discovery of NMA Wordings for Lloyd’s Policies

One difficulty in pursuing London market insurance recovery has been putting together what the actual wording of the insurance contract was. While there have been efforts afoot to move toward “contract certainty,” that is, to finalize the actual wordings in advance of the effective date of the policy, this aspiration seems to remain elusive in implementation. As a result, what one usually has is a “slip,” which is essentially a commitment to contract where syndicates at Lloyd’s indicate the proposed share the syndicate is willing to accept in the proposed policy (as indicated by the underwriter’s “scratch”, i.e., initials or imprimatur) and a general statement of what the policy wording is expected to be (a list of major terms, exclusions, and the like).

For most general liability policies, the bosom from which the language springs is the Non-Marine Association, given that most “inland marine” coverages have been created by this group of underwriting representatives. Lloyd’s has now announced that NMA wordings will be centrally and broadly made available to market participants. Going forward, this should facilitate discovery on the underwriting side, though Hague Convention procedures and compliance with more stringent requirements of English process as to the scope of discovery, will continue to need to be abided by presumably. Nevertheless, policyholders pursuing recovery from Lloyd’s underwriters should target the NMA repository unless they are sure they have final contract wordings. Even if the final wordings are in place, the NMA may have “drafting history” that may shed light on the intendment of the language, and thus may be able to be a source of evidence to show the “factual matrix” (as it is often put by English lawyers) or extrinsic evidence that may show “custom and practice” or other potentially relevant founts of interpretative evidence.

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