The Examination Under Oath: A Thirteen Part Series on Everything You Need (and Would Ever Want) to Know About Examinations Under Oath and Sworn Statements Under Oath Given Pursuant to a Property Insurance Claim
Starting next Wednesday, we will start a weekly series regarding examinations under oath which are sometimes called sworn statements under oath.
The series will discuss the practical, legal and coverage aspects of the following articles we have lined up for you each Wednesday for the next thirteen weeks:
- Examinations and Sworn Statements Under Oath: What Are They and Their Relevance to Insurance Coverage From a Historical Study of Older Cases
- What Happens if A Policyholder Does Not Attend an Examination Under Oath?
- Where Do and Can Examinations Under Oath Be Held? Does a Policyholder Have to go to Timbuktu?
- Who Can Be Compelled to Attend Examinations Under Oath? Do Public Adjusters, Contractors and Employees Have to Attend Examinations Under Oath?
- Under What Circumstances Can a Policyholder Refuse to Answer a Question at an Examination Under Oath and Not Lose Policy Benefits?
- The Practical Reasons Insurers Take Examinations Under Oath and Why Policyholders Need Representation By Legal Counsel
- What is the Impact of a Wrong Answer at an Examination Under Oath? Do all Incorrect Answers Lead to Denial?
- How to Prepare for an Examination or Sworn Statement Under Oath if You are a Policyholder or Public Adjuster.
- What Public Adjusters Need to Tell Their Clients About Examinations Under Oath and Why Public Adjusters Need to Be Careful About Giving Legal Advice.
- The Examination Under Oath is Over: What Now?
- Typical Questions Asked During an Examination Under Oath of an Arson or Suspicious Fire Case.
- Typical Questions Asked During an Examination Under Oath of a Questionable Theft Loss.
- Typical Questions Asked During an Examination or Sworn Statement Under Oath of a Disputed Structural or Personal Property Valuation Claim Suspected of Being Inflated, Exaggerated, or Made Up.
For those that have not studied the examination under oath clause, it is one of the few property insurance clauses to be specifically addressed by the United States Supreme Court. In Claflin v. Commonwealth Insurance Company, 110 U.S. 81, 94-95; 3 S. Ct. 507, 515; 28 L. Ed. 76, 82 (1884), the Supreme Court stated:
The object of the provisions in the policies of insurance, requiring the assured to submit him-self to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. A false answer as to any matter of fact material to the inquiry, knowingly and willfully made, with intent to deceive the insurer, would be fraudulent.
In Claflin, the insured’s false statements during the examination under oath were not made to deceive the insurer, but to cover-up false statements previously made to other parties. Nevertheless, the Supreme Court held the false statements regarding the ownership and value of the insured goods were material, and therefore, a breach of the conditions of the policy and a bar to recovery.
...it is no palliation of the fraud that Murphy did not mean thereby to prejudice them [the insurer], but merely to promote his own personal interest in a matter not involved in the contract with them. By that contract the companies were entitled to know from him all the circumstances of his purchase of the property insured, including the amount of the price paid and in what manner payment was made; and false statements, willfully made under oath, intended to conceal the truth on these points, constituted an attempted fraud by false swearing which was a breach of the conditions of the policy, and constituted a bar to the recovery of the insurance.
Id. at 97.
For a number of practical and legal reasons, any policyholder being asked to undergo an examination under oath should always hire insurance coverage counsel and carefully consider who that counsel is going to be. I would suggest that opposing insurance company counsel and claims managers consider who the legal opponent will be if a denial is contemplated.
Good, experienced and reputable policyholder attorneys add value to claims and sometimes prevent claims disasters and litigation from ever occurring.
it cannot be reiterated enough times by those in the know---the EUO paves the way for the remainder of how both sides/opponents will navigate the case, the review, the study, the battling of the sides, the adjustment and settlement of the claims made; courts more and more need to be mindful and resolute that where the Insured fails to submit to the EUO, after the most minimum of reminders for lack of first requested appearance, the claim should be denied and with prejudice to reconsideration for how often do the courts grant Insureds perhaps a second, third even fourth bite at the apple when such party's conduct evidences utter lack of willigness to be reviewed, questioned and summoned to prove up the very damages at the heart of the dispute. a well planned, well mapped, well prepared EUO of an Insured assures that months later, a court reviewing a civil action for failure to honor the contract and/or for lack of good faith required in such deals, shall surely be inclined to side with the aggrieved Insured appearing before the bench to obtain the very benefits accruing from payment of thousands in premium payments/ WS/ III.
Hey Chip
Where do you get your energy??
Most of my clients don't want to pay to have an attorney sit with them during the EUO.
Most of the EUO's I have seen, the carrier's attorney doesn't really know why he is taking the EUO, and they simply go thru a boiler plate list of questions and end the EUO knowing little more than they new before the EUO started. The carrier's appear to be using them to intimidate Insured's or hope they don't show up so that the claim can then be denied for failure to cooperate.
When I worked on the carrier side,(20 years ago) the EUO was rarely used and only when fraud or arson was highly suspected. Things have really changed in that regard. I see EUOs demanded, when the only motive appears to be an attempt to dissuade the Insured from persuing the claim.
What should we do (if anything) if we feel that is the case?.
Mike,
A person that represents himself at an examinnation under oath has a fool for a client. Unless the claim is so small that one simply cannot hire counsel, it is foolish not to have an attorney.
Pubic adjusters should be careful to never indicate anything else.
Thanks for your kind comments about my energy. I try.
I am certain many would agree with you regarding the change in the trends of examinations.
Could you give me information on where and when the seminars will be held.
Dave,
If you go to Saturday's Post, just click on the seminar and register if you are a licensed public adjuster.
I have insurance with Allstate and they took forever to get to my claim. I had a house burn and they think it was arson. In fact, there were eight houses in four months burned in my neighborhood, all suspected arson. there were twelve houses in the year burned. Now I am disabled and have multiple sclerosis/legally blind. I dont think they really suspect me, but they are wanting to do an EUO. The problem is two fold. One is they want to hold the examination at my attorneys office. An attorney that I have used for nine years. I told the insurance companies lawyer that where he wants to meet is my attorney's office. He is friends with my attorney. My attorney does not handle these type of cases. Also I have told the insurance companies attorney that i can not spend as much time as he requests due to my disability. This attorney keeps ignoring what I have told him. I have told him that I am not going to meet at my attorney's office and that he will have to make accommodations for my disability. my requests go on deaf ear. I do need an attorney to help me because it is obvious that these guys are just trying to get out of paying a ligitimate claim. I live in Tennesse any help or advice would be appreciated.