Where Can Examinations Under Oath Be Conducted?
Examinations Under Oath (EUOs) are often requested by an insurance company during the investigation of disputed insurance claims. While an EUO is similar to a deposition in many ways, defense attorneys are quick to point out that EUOs are not subject to the rules that govern depositions because they are created by contractual agreement. Because EUOs are not governed by the rules of civil procedure, disputes often arise over simple matters like where an EUO is to take place.
Because an EUO is a contractual obligation, the primary place to look for an answer to this problem is in the policy itself. Policies must be interpreted as would be understood by an ordinary person. Unfortunately, policies are usually silent as to the potential location of an EUO.
Policy language may be scrutinized as to what it does not say. For example, when an insurance company requests that an insured sit for an EUO at the law office of the insurance company’s attorneys, I believe that the location can be intimidating for the policyholder. I tell the carrier that the post-loss obligations call for the insured to sit for an EUO at the insurer’s request, but not wherever the insurer would like to take it.
Fortunately, there is one last area of law to turn to – case law. Every insurance defense lawyer in Florida loves to quote from Goldman vs. State Farm, 660 So2d 300 (Fla. 4th DCA 1995), to say: no EUO, no recovery. But a close reading of Goldman reveals a pearl for policyholders.
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 is silent on a specific location, the cooperation requirement inherent in an insurance policy suggests examinations should be coordinated mutually and conveniently. This is a very important point to emphasize when the insurers demand an EUO.
I was searching some info about this topic, so called EUO. Thanks for sheding some light on it.
I have 4 question about EUO and help would be appreciated.
1. Can State Farm make us do the EUO at their Corporate office? It is about a 1.5 hours drive and in a different county then the loss was in.
2. Can State Farm make us an offer to settle the structural portion of our claim which they did over 1.5 years ago. Then State Farm invoked the appraisal clause for the structural portion of our claim which they did 7 months ago and now they are requesting an EUO; shouldn't the EUO be done first?
3. State Farm received our content portion of the claim 6 months ago and did not respond at all one way or the other so I requested state sanctioned arbitration. State Farm is now saying that they do not have to go to arbitration because we have not sat for an EUO. However State Farm never requested an EUO till after we requested state sanctioned arbitration. Can they do this?
4. Today State Farm has not properly, professionally or legally responded to our personal properly claim. They received a 44 page personal property list and did a walk through / inventory check a year ago. State Farm received a formal request for payment and 119 pages of supporting documentation for our personal properly claim on July 7, 2011. We now have only 2 months to settle this part of the claim and it would seem spend the money because it is State Farm position that after two years they will only pay to repair or replace less depreciation. The Delaware insurance department asked State Farm to toll the 2 year time period (statute of limitations) and State Farm has refused. At this late date can State Farm use the EUO clause as a means to eat up the next 2 months in hopes that they will only have to pay 10% of our claim?
Thanks, Diane
I've taken hundreds of EUO's and my clients always asked that I take the EUO's at the convenience of the insured, if asked. I have taken EUO's in the insured's home, in the insured's lawyer's office, in a park, in a restaurant, in the insured's business office,in jail where the insured was incarcerated, and beside the insured's swimming pool.
I, of course, prefer my office but my clients prefer the EUO be taken at the convenience of the insured. My office is not a place that would seem intimidating and I do everything possible to make the witness comfortable and assure him or her that counsel will protect their interest.
Places are not intimidating -- facts and testimony that the insured does not want to speak about -- are intimidating.
"Email" - I am glad I could help. That is what we are here for.
Mr. Zalma - I don't believe we have had the opportunity to meet, but if you truly act the way you claim, I wish there were more attorney's like you, although I am sure the ones you are questioning at an EUO are far more intimidated than you.
Diane - I am not licensed in Delaware and therefore cannot give advice based on Delaware law. However, I can tell you how it would work in Florida.
1. The case law suggests that the place where the EUO is to be taken has to be a mutually convenient location. Usually opening a dialogue with them to explain why it is not convenient for you will help - many times they will accomodate you as Mr. Zalma would.
2. Logic would suggest that taking an EUO prior to appraisal would be the best practice, but unfortunately an insurance company can still request an EUO after demanding appraisal.
3. This is hard to answer without knowing more, but generally speaking, an insurance company cannot claim you have failed to comply with a duty if they never requested it. However, if they are now requesting an EUO, it is likely a good idea to comply as many states might bar your claim if you fail to comply with their request. I would strongly suggest that you seek legal representation to assist you prior to and during that EUO though.
4. If State Farm intentionally delays the payment of your claim in order to benefit from this 2-year time limitation, it would likely be considered bad-faith. Given your time limitations, I again strongly suggest that you speak with an attorney regarding your rights so that you don's miss any important deadlines. Make sure that whoever you speak with is experienced in the area of first-party property insurance (this is different than auto claims or slip-and-fall accidents).
Dear Mr. Zalma,
I have read with interest you opines on EUO's and your blog, and two things become clear: 1. that you are very experienced in this field on which you speak, and 2. that you are very compassionate indeed to take your time to respond and comment without pay. Thank you for this, on behalf of all here who have questions. My question is simple, our house was robbed and vandalized in Arizona on Oct 27, 2011, and the atty representing the ASI insurance company is very 'slimy' in all of his false accusations and failures to provide responses to what we ask for. Despite his very own office sending us a paper advising us of our rights during an EUO, which included, under point 4. of "The rights of the Insured When Providing an Examination under Oath" to wit "The insured may be represented by counsel and may record the examination proceedings in their entirety," our daughter who is an insured, was disallowed from recording her EUO about a week ago, as she brought a small recording device to record the proceedings. At the EUO, therefore, she called me, and the atty stated that they would not allow the EUO to be recorded, at which point I advised him of the fact that their own paperwork that they sent me stated that our right was to record it in it's entirety. Since he would not let her record, the EUO was called off by them for he told both of us over 'speakerphone' that they would not be asking her any questions if she is recording the EUO. So he called it off, not us. Now they are taking my wife's and my EUO this week in California and their counsel states that Az. statute does not allow for the recording of the EUO by the insured, (something I do NOT believe according to the limited but insightful research that I've done on the matter). Also, they have failed to send us any supporting documents prior to the taking of our EUO, (which CA law apparently allows for and which we have requested), and as well, they have failed and continue to fail to provide us with a copy of my wife's statement given to the insurance claims person taken over a month ago which we also believe that we have a right to have prior to our EUO's being taken. Does any or all of this sound 'fishy'??? Is Arizona law truly just 'behind the times', or is this lawyer being dishonest in what he says?? ty