The problem
As the use of dash cameras, surveillance systems, and mobile devices has become commonplace, insurance carriers increasingly rely on digital photographs and videos when investigating and defending claims. To establish the admissibility of this evidence in litigation, some carriers ask insurance brokers to execute sworn affirmations describing how accident media was received and transmitted. While brokers support the preservation of evidence and routinely assist insureds by forwarding claim-related materials, many of the affirmation forms currently in use present significant legal and professional concerns. Insurance brokers are not investigators, evidence custodians, forensic specialists, or witnesses to the accident. Their role is generally limited to receiving information from clients and forwarding it to the appropriate carrier as part of the normal claims reporting process.
Why this is a problem
Major legal concerns 1. It creates personal sworn testimony The signer is not signing on behalf of the brokerage only — they are personally affirming facts under penalty of perjury. If any detail later turns out inaccurate, inconsistent, incomplete, or impossible to verify, the signer can be attacked in: deposition, arbitration, litigation, DFS inquiry, SIU investigation, or E&O claim. Even innocent inaccuracies become credibility issues. 2. The wording implies firsthand authentication of the media This sentence is problematic: “The video/photos recorded the accident…” Unless the employee personally witnessed: the accident, the recording, the source device, and chain of custody, they cannot truly authenticate that the media “recorded the accident.” At most, they can truthfully say: the insured/driver represented that the media depicted the accident, or the sender stated it was related to the accident. This distinction matters heavily under NY evidentiary standards. 3. Chain-of-custody exposure The affirmation does not specify: whether files were altered, compressed, edited, renamed, forwarded, downloaded, converted, or screened through another platform. A plaintiff attorney could later argue: missing metadata, incomplete transmission, alteration, spoliation, or selective forwarding. Your brokerage does not want to become a fact witness unnecessarily. 4. It may exceed broker duties A brokerage is generally not supposed to become: custodian of evidence, claims investigator, authentication witness, or litigation participant, unless absolutely necessary. This document pushes the brokerage into the claims evidentiary chain. That creates avoidable risk.
Proposed solution
The For-Hire Transportation Insurance Association will work collaboratively with brokers, insurance carriers, attorneys, and industry stakeholders to develop standardized best practices and model affirmation forms that: Clearly define the broker's role in the transmission of digital evidence. Limit affirmations to facts within the broker's personal knowledge and ordinary business records. Preserve the evidentiary value of digital media for litigation. Reduce unnecessary legal and professional liability for insurance brokers. Promote consistent, industry-wide procedures for handling electronic evidence. By establishing balanced and standardized protocols, the Association seeks to protect both the integrity of the claims process and the appropriate legal responsibilities of all parties involved.