When an insurance company requests an Examination Under Oath of multiple parties in the same claim such as a husband and a wife, it has been my practice to have spouses attend each other’s Examination Under Oath absent a policy provision in the insurance contract that prevents this practice. I find that this relaxes the policyholder and allows the other attendees to witness an Examination Under Oath firsthand.
The rules of civil procedure governing the taking of depositions do not apply to Examinations Under Oath conducted by an insurance company in investigating claims. Such examinations are governed by the terms of the insurance policy, not by the rules of civil procedure.1
Under the terms of all insurance polices, policyholders are required to submit to Examinations Under Oath when requested by the insurer since they must cooperate in the investigation of any claim.
As for Examinations Under Oath, it has been my experience that policy provisions do not mandate the examination to which a policyholder must submit shall be held outside the presence of other policyholders or witnesses.
In the absence of any ambiguity in the insurance policy, the court must give effect to the plain meaning of the policy terms.2 Furthermore, courts are not at liberty to rewrite an insurance policy.3 Therefore, for an insurer to insist on sequestration of witnesses as a condition of an Examination Under Oath, it must do so by an express term in the policy.4 The Goldman case addressed a policy provision requiring policyholders to submit to examinations under oath outside the presence of any other policyholders.
As the law in Colorado allows for multiple witnesses and policyholders to attend Examinations Under Oath absent a policy provision within the insurance contract that requires sequestration, multiple witnesses can attend Examinations Under Oath.
Absent a condition requiring sequestration of witnesses contained within the insurance policy, refusal to accede to the sequestration demand of an insurer should not be considered a violation of the cooperation clause of the insurance policy warranting denial of benefits.
1 See United States Fidelity & Guaranty Co. v. Welch, 854 F.2d 459 (11th Cir.1988).
2 See Terranova v. State Farm Mutual Automobile Insurance Co., 800 P.2d 58 (Colo.1990).
3 Emenyonu v. State Farm Fire & Casualty Co., 885 P.2d 320 (Colo.App.1994).
4 Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla.Dist.Ct.App.1995).