It is clear that examinations under oath (EUOs) are preconditions to coverage, and an insured, if asked, must comply this questioning. An EUO is the opportunity for an insurance company to question its own insured, under oath, regarding a loss or damage. The weight of the testimony in an EUO is exactly the same as a deposition because the examinee swears under oath and the penalty of perjury as if testifying in a court of law. Any testimony given at an EUO can be used in determining claim coverage and later, for impeachment if the claim leads to litigation.
Many times, an EUO is requested by the insurer through their coverage attorney. In California, the insurer must comply with California Insurance Code § 2071.1, which provides:
(1) An insurer that determines that it will conduct an examination under oath of an insured shall notify the insured of that determination and shall include a copy of this section in the notification.
(2) An insurer may conduct an examination under oath only to obtain information that is relevant and reasonably necessary to process or investigate the claim.
Also, § 2071.1 states:
(5) The insurer shall notify the insured that, upon request and free of charge, it will provide the insured with a copy of the transcript of the proceedings and an audio or video recording of the proceedings, if one exists. Where an insured requests a copy of the transcript, the recording, or both, of the examination under oath, the insurer shall provide it within 10 business days of receipt by the insurer or its counsel of the transcript, the recording, or both. An insured may make sworn corrections to the transcript so it accurately reflects the testimony under oath.
(6) In an examination under oath, an insured may assert any objection that can be made in a deposition under state or federal law. However, if as a result of asserting an objection, an insured fails to provide an answer to a material question, and that failure prevents the insurer from being able to determine the extent of loss and validity of the claim, the rights of the insured under the contract may be affected.
Although many insureds submit to EUOs without the benefit of counsel, they do so at their own peril. There are basic rights that an insured should know of and prepare for before submitting to an EUO. For example, an insured has the right to and should view an entire copy of his or her claims file before submitting to an EUO. Having the benefit of counsel helps the insured ensure that the insurance company complies with Insurance Code § 2071.1.
