There have been many posts on this blog regarding Examination Under Oath (EUO). Previous posts have dealt with who may sit for an EUO, how to handle an EUO, and what happens after an EUO. I would implore you to read through those posts by Chip Merlin, Rob Trautmann, Jeffrey Greyber, Shaun Marker, and others. One issue touched upon but not thoroughly explained was that an EUO is not a deposition.
That issue was present in the Eastern District of New York case, Wingates v. Commonwealth Insurance Company of America.1 While it is currently under appeal, Wingates dealt with the refusal of the insured to sit for an EUO. Wingates’ sole shareholder, Glen Nelson—against the advice of his public adjuster—refused to sit for an EUO when requested by Commonwealth. Thereafter, Wingates filed suit and Nelson sat for a deposition where he voiced his disdain for insurance companies.2
In reaching their decision to grant Commonwealth’s motion for summary judgment, the court stated:
The fact that the Plaintiffs submitted to depositions in the context of this lawsuit does not absolve them of their independent duty to submit to Examinations Under Oath as required by the Policy. Indeed, an insured cannot “insulate itself against co-operation by commencing an action before there has in fact been repudiation of liability by the insurer.” Lentini Bros. Moving & Stor. Co. v. New York Prop. Ins. Underwriting Assn., 76 A.D.2d 759 (1st Department 1980)
Quoting Goldman v. State Farm Fire General Insurance Company,3 the court explained:
[D]epositions and examinations under oath serve vastly different purposes. First, the obligation to sit for an examination under oath is contractual rather than arising out of the rules of civil procedure. Second, an insured’s counsel plays a different role during examinations under oath than during depositions. Third, examinations under oath are taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claim investigation process. Fourth, an insured has a duty to volunteer information related to the claim during an examination under oath in accordance with the policy while he would have no such obligation in a deposition.
Again, I must stress that an Examination Under Oath is a contractual obligation you must comply with as it is written in your policy. Most policies have conditions that must be met prior to filing a lawsuit. Lawsuits are not meant to be safe havens from complying with your post-loss obligations, and failing to comply with the contractual post-loss obligations could result in your case being dismissed.
Finally, while the EUO is an investigative tool, it can used to deny coverage, so it is strongly advised that you seek counsel prior to sitting for an EUO.