Where Do and Can Examinations Under Oath Be Held? Does a Policyholder Have to go to Timbuktu?
(Note: This Guest Blog is the third of a thirteen part series on examination under oath).
“Sunshine State hereby requests you to submit to an examination under oath which will be held at the residence premises of the insured.” This is a common request to policyholders by Sunshine State. Of course, as a former insurance defense attorney I know that the carrier’s intention is to turn the EUO into a dog and pony show. That is, they will have the policyholder take defense counsel on a guided tour of the damage to the property, and if the policyholder fails to point out any of the covered loss, the carrier will hold that against the policyholder as if it were an intentional act of concealment.
Is such a request binding on the policyholder? Must an insured “submit” to the whim of the insurance company and appear for an examination wherever the carrier requests or be considered to fail to comply with post-loss obligations?
The primary place to look for such information is in the policy itself. Policies must be looked at in their plain language as would be stood by an ordinary person. Thus, does the policy say the EUO may be held at the policyholder's insured premises? Unfortunately, policies are usually silent as to the potential location of the examination.
Policy language may be equally scrutinized as to what it does not say. For example, when Sunshine State requests that one of my clients sit for an EUO at their residence, knowing full well that the intent is not in the policyholder’s best interest, I tell the carrier that the post-loss obligations call for the insured to sit for an EUO at the insurer’s request and to show the damaged property as many times as reasonably required, but the plain language of the policy does not call for the insured to submit to an EUO while showing the damaged property.
What are the rules for where EUOs may be held? Depositions, for example, are governed by the Rules of Civil Procedure, but as defense counsel are so fond of asserting, EUOs are contractual arrangements which are not governed by the Rules of Civil Procedure. Nor is there a statute which speaks to EUO locations. Hmmm… what does case law say?
A survey of Florida law revealed a strange bedfellow for policyholders in terms of where EUOs may be conducted. Last week’s blog focused on what happens if the policyholder refuses to sit for an EUO. Unfortunately, case law is clear that failure to sit for an EUO is a material breach of the policy’s terms which may lead to denial. Specifically, every insurance defense lawyer loves to quote from Goldman vs. State Farm, 660 So2d 300 (4th DCA 1995) in saying just that: no EUO, no recovery. But a close reading of Goldman reveals a pearl for the policyholders.
The court in Goldman also held that examinations under oath must take place at, “A mutually convenient time and place as contemplated by the policy.” In essence, though the typical policy’s plain language is silent toward a specific location, the cooperation implied by the policy lends to the need for examinations to be coordinated mutually and conveniently. A very important point to emphasize when the insurers demand an EUO.
Tune in next week when we discuss who exactly may be compelled to sit for EUOs.
Bob,
I love your blog that you have recently started at the request of Chip. I learn valuable insights with every one I read. I do have one complaint. As I am reading these I get caught up in what you are saying and want to know more... then you end it! We want more! We PA's are at a loss when it comes to these areas of interest. If you are writing all you can write with each blog, can you at least give us links for further study on our own? This is a topic of interest to every PA out here, or at the least should be.
Thanks, and keep up this really good work.
Gary Rowland
"Sunshine State" ? Is that really the name of the ins. co.? If it is, they get an "F" for creativity. I mean how corny is that? Please.
Frankly, if I was an insured and the ins. co. wanted to "visit" my home (i.e., the loss site) for an EUO, I'd do everything possible to ACCOMODATE them because there's 2 pitt bulls & a Jack Russell Terrier waiting to greet them! (ha, ha)...Sure, I'd put them "away" after they did their job of greeting the "visitors" at the front door, however, they would not be quiet as long as there are strangers in the house. I'm sure this would interfere w/the dialogue process, hearing problems, fear factors, etc., however, that's not my problem. What are they going to do? Sue me for having pets? I think not, but if they did, I'd deal with that (along w/the pending unpaid claim), and, after they lost the "me having pets" case, I'd just toss everything associated with that nightmare into my folder earmarked "BAD FAITH DAMAGES" for future reference.
A little extreme? Sure, but so is wanting to invade my personal space (i.e., my home), my family life, etc., for the purpose of conducting an EUO which TYPICALLY is conducted at a Court Reporter's or an attorney's office.
SHIRLEY HEFLIN