Examinations Under Oath – What’s Really Going On

Almost every insurance policy requires an insured to appear for an Examination Under Oath (“EUO”) upon request as one of the duties of the insured post-loss. The EUO is a formal proceeding taken before a court reporter and recorded in a verbatim transcript. It is conducted by an attorney hired by the insurance company. The insured has the right to be represented by an attorney. However, unlike a deposition or court proceeding, the attorney for the insured has no right to question the insured or raise evidentiary objections. The attorney is only allowed to offer legal advice to the insured when issues arise during the EUO.

Once an insurance company requests an insured submit to an Examination Under Oath in California, the EUO becomes a condition to payment of the claim. The insurance company may take the Examination of the persons identified as “insureds” under the policy and, depending on the type of policy you have, employees, members of your household, or others “to the extent it is within the insured’s power to do so.”¹ Also, the insurance company has the right to examine each insured separately. For example, spouses who are both insureds under a policy do not have the right to sit in on each other’s EUO.² Furthermore, many insurance companies request insureds to produce documents pertinent to the claim either before or at the time of the EUO. The failure to comply with the insurance company’s requests may be used as a basis for denying the claim.³

The scope of the EUO is broad. Ostensibly, the purpose of the EUO is to allow the insurer the opportunity to gather information from the insured regarding the facts, circumstances, and amount of a loss; however, the EUO is frequently used instead as a means to justify denial of the claim. California permits insurance companies to require the insured to submit to an EUO even if its purpose is to gather evidence to defeat the claim.⁴ What this means, is insurers can and use the EUO to search for misrepresentations and facts that may negate coverage for the loss.

To protect your claim, consult an experienced policyholder attorney before agreeing or refusing to be examined under oath.

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¹ See, West v. State Farm Fire & Cas. Co.(9th Cir. 1989) 868 F.2d 348, 351, fn. 1.
² State Farm Fire & Cas. Co. v. Tan (SD CA 1988) 691 F.Supp. 1271, 1274.
³ California Fair Plan Ass’n v. Superior Court (2004) 115 Cal.App.4th 158, 167; Brizuela v. Calfarm Ins. Co. (2004) 116 Cal.App.4th 578, 587.
⁴ California Fair Plan Ass’n, at 167; Brizuela, at 587.