16 Mar Insurance Lawyer – Examination Under Oath
Preparing for an Examination under Oath
There are many situations where you might be required to take an oath. The experienced insurance attorneys at Freundlich & Littman, LLC want you to be prepared for an examination under oath. An examination under oath is a relatively routine procedure. If you are prepared for the questions you will likely be asked, it will not be as strenuous an ordeal. This article will discuss what an examination under oath is and how to prepare for one.
What is an Examination Under Oath?
A legal oath is a pledge to tell the truth during a legal procedure. An examination under oath is procedure typically held by insurance companies. Examinations under oath occur in both commercial and residential insurance policies, and are generally required pursuant to the terms of an insurance policy. In many ways, an examination under oath is a quasi-legal proceeding. After you file a claim with your insurance company, they may require you to report to a representative from the agency. A court reporter will be there to take down everything that was said, just as in a deposition or trial. You will be required to take an oath, after which you will be asked a series of questions. These questions are designed to mimic a deposition. In a deposition, as you may have seen on popular media, is designed as a fact-finding exercise. It allows the insurer to investigate and have all the information needed before making a determination on your claim. The insurance company will typically hire an insurance attorney to represent them at the examination under oath. It is important that you have your own insurance lawyer present to represent your interests at the examination under oath.
What Should I Expect?
The situation is becoming routine in the insurance world. It is the chance for the insurer to ask questions regarding your claim to make sure that everything is in place. your insurance lawyer or the insurance adjuster may be present during an examination under oath. If you need legal advice before the procedure or wish us to represent you, don’t hesitate to contact the experienced insurance lawyers at Freundlich & Littman.
Prior to the examination under oath, you will likely be sent a notice of a scheduled time and place. There you will be told of your rights during the examination under oath. They may ask you to bring along certain documents pertaining to your insurance claim. You may even be required to attend several of these, depending on the nature of your case and whether the insurer needs specialized agents to ask you questions.
You can expect to receive questions about your claim, prior claims, and questions regarding fraud. This is the insurance company trying to ascertain any false claims. Sometimes, insurance companies will even ask for personal records, such as banking records and cell phone bills as part of their investigation. Insurance companies notoriously do not want to pay for claims if they can avoid it, and although their efforts may seem obtrusive, you are required to comply with their requests (more on that below). Talking with your attorney ahead of time will prepare you on what to say. It will also keep you calm when these expected questions arise. The entire process may take a few hours to complete, so be prepared for that. Having an insurance lawyer at the examination will also help you to ensure that the insurance company is not stepping outside of the permissible scope of their investigation.
Can I Refuse to Attend or Answer Any Questions?
In short, yes, you can refuse; however, there are potential consequences that you face by doing so. Unless you have a legally viable reason for refusal you may not be able to avoid negative consequences. Refusing to attend an examination under oath can result in a cancellation of your claim and policy.
There are some instances where refusal is excused. These include, an unreasonable time and location, refusal of right to have an insurance lawyer present, or that the notice you received was not complete. Before you refuse to attend, contact an attorney to make sure you are within your right to do so in order to avoid losing your rights under your insurance policy.
Just as you cannot refuse to attend the examination under oath, you cannot refuse to answer a question based on the Fifth Amendment. It does not apply in an examination under oath situation. In fact, refusing to answer a question gives the insurer’s representative the right to cancel the examination along with any claim. Remember, your insurance policy is a contract. If you fail to meet the requirements or comply, the company may exercise the right to breach the contract. These provisions will be included in your policy.
If you are worried that your policy may be cancelled or you are unsure what to say, seek legal advice from an insurance lawyer. It is always better to know what to say before you outright refuse to answer a question.
Do I Need an Insurance Lawyer?
You are not required to have an insurance lawyer present at an examination under oath, but it is strongly advised to have one. The insurer’s representative will likely be accompanied by an insurance lawyer, but neither individual has your interest at heart. An insurance lawyer will be able to spot if your insurer or insurer’s insurance lawyer is doing anything that isn’t strictly above board. Call us today at 215-545-8500 to schedule a free consultation to discuss your upcoming examination under oath.
Property insurers have long viewed their contractual right to require policyholders to submit to examinations under oath (EUO) as a valuable tool in combating insurance fraud. The Washington Supreme Court’s recent decision in Staples v. Allstate Insurance Co., 295P.3d 201(Wash. 2013), weakens the effectiveness of EUOs by imposing new hurdles for insurers seeking to deny coverage based the refusal of an insured to submit to EUOs .
The insured, John Staples, submitted a claim to his homeowners insurer for the value of tools and equipment that were stored in his van when the van was stolen from a parking lot. Due to inconsistencies in the insured’s statements about the value of the tools and equipment, Allstate transferred the claim to its “special investigations” unit, and requested a variety of documents from Staples, including proof of ownership, a sworn proof of loss, an authorization to release information, and three years of tax returns. Allstate also took two recorded statements from Staples, neither of which was under oath.
Staples sent Allstate a sworn proof of loss and an authorization to release information approximately three months after the accident, but did not provide a proof of ownership or any of the financial information requested by Allstate. Allstate responded by demanding that Staples produce the remaining documents the following day and that he appear for an EUO in approximately two weeks. Shortly before the scheduled EUO, Allstate sent Staples a letter cancelling the EUO because Staples had yet to produce the requested. Only after Allstate denied the claim did Staples agree to submit to an EUO, and then only if the insurer would waive the contractual time limit for filing suit, which Allstate refused to do.
Staples sued Allstate for breach of contract and bad faith. The trial court granted summary judgment for Allstate based on the insured’s failure to comply with the policy’s requirement that the insured submit to a EUO upon the insurer’s request.
The Washington Supreme Court reversed, finding triable issues of fact. In so doing, the supreme court made three significant rulings regarding the scope of an insurer’s right to request an EUO and the circumstances when an insurer may deny coverage based on its insured’s failure to submit to an EUO.
Insurer Must Prove EUO’s Materiality
First, the court held “if an EUO is not material to the investigation or handling of a claim, an insurer cannot demand it,” noting its disagreement with the statement in Downie v. State Farm Fire & Casualty Co.,929 P.2d 484 (1997), that an insurer has an absolute right to at least one EUO. Agreeing with Staples that there must be some outside limit on an insurer’s ability to demand an EUO, the court noted, for example, that “it would surely violate an insurer’s good faith duty to demand an EUO from every single claimant simply to burden insureds and set up pretexts for denying claims.”
Insurer Must Prove Actual Prejudice
Second, the court held an insurer must establish actual prejudice in order to deny an insured’s claim for noncompliance with a requested EUO. The court could have based its holding solely on language in Allstate’s policy providing that if an insured does not comply with its duties under the cooperation clause, including the duty to submit to an EUO, then Allstate has no duty to the insured if the failure to comply “is prejudicial to us.”(emphasis added). But the court went further and extended the “actual prejudice” rule already applicable to the general duty to cooperate to the duty to submit to an EUO.
Substantial Compliance Does Not Require Attendance
Finally, the court held that factual issues remained as to whether the insured “substantially complied” with Allstate’s EUO request, even though the insured never submitted to an EUO. Evidence supporting a finding of substantial compliance, in the court’s view, included the fact that Staples had previously appeared for two interviews, authorized broad access to a range of financial documents, and finally offered to appear for an EUO if Allstate would extend his time to file suit.
The Staples decision underscores the need for insurers to create a record explaining why they need an EUO, at least in Washington. The problem in doing so is that an explanation of the materiality and relevance of the information the insurer is seeking may undermine the insured’s fraud investigation. That is why other jurisdictions have allowed insurers to demand an EUO without proving materiality or prejudice. See, e.g., Brizuela v. CalFarm Insurance Co., 10 Cal.Rptr.3d 661 (2d Dist. 2004). See also California Code of Regulations § 2695.7(c)(2), which exempts insurers from disclosing “any information that could reasonably be expected to alert a claimant to the fact that the claim is being investigated as a possible suspected fraudulent claim.”