Recently, it seems like I have been privy to a relatively high number of insureds asked by their carrier, following a loss, to submit to an examination under oath (commonly referred to as an EUO). The most common question I received was, “Can I just choose not to answer or attend?” Although the choice is ultimately the insureds and the ramifications of refusal vary by justification, when dealing with Arizona insureds, I generally advise against such blanket refusals.
Most insurance policies impose an obligation on the insured to cooperate with the post-loss investigation and the failure or refusal to comply with the obligation to cooperate with an EUO provision may constitute a bar to any recovery against the insurance company. Like most insurance-related items, it depends on the language used in the policy. A non-cooperation clause, if properly drawn, will relieve an insurer of its indemnification obligation regarding a non-cooperative insured.1
The second-most popular question then follows, “So does that mean that the insurance company can ask me anything under oath?” An Arizona appellate court answered that question by stating:
In the context of the requirement that the insured submit to a sworn examination, it appears that the only limitation is that the questions be material to the circumstances surrounding the insurer’s liability and the extent thereof.2
In short, yes, provided that the insurance company can articulate a basis to show that the question is material and relevant to its investigation and potential liability.
Can an insured invoke his/her constitutional right to remain silent? The protection afforded by the Fifth Amendment has no application to an EUO.3 However, if requested by the insured, the carrier ought to explain the relevancy and materiality of its questions.4
An EUO can be a trap for the unwary, and insureds should be careful when submitting to an EUO. If unsure or uncertain, an insured should consult with (and/or retain) a knowledgeable insurance attorney before providing sworn testimony to the carrier.
1 Home Ins. Co. v. Balfour-Guthrie Ins. Co., 13 Ariz. App. 327, 328-329, 476 P.2d 533 534-535 (App. 1970).
2 Warrilow v. Superior Court of Arizona for the County of Pima, 142 Ariz. 250, 253, 689 P.2d 193, 197 (App. 1984).
3 Warrilow, 142 Ariz. at 254, 689 P.2d at 198 (the “compulsion” to respond arose not from any governmental action, but rather solely from the terms of the parties’ contract).
4 Twin City Fire Ins. Co. v. Harvey, 662 F.Supp. 216 (D. Ariz. 1987).