Examination Under Oath

New Jersey Merlin Law Group attorney Jason Cieri was married last week. It was a fantastic wedding. It also provided me a chance to catch-up with some Jersey Shore public adjusters, discuss the upcoming PPAANJ seminar on November 14 and write this blog which includes a case discussion involving post loss misrepresentations made prior to an examination under oath.
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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.
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My article published in Adjusting Today,1 Property Insurance 101: Everything You Always Wanted to Know About Examinations Under Oath – But Were Afraid to Ask!, was the subject of my blog post last month. As discussed in the article, an examination under oath (“EUO”) is not just another deposition. An insured’s counsel must be well-versed on the nature and the extent of the contractual duty to submit to an EUO and the consequence of non-compliance.
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Most property and business policies contain a provision requiring the insured to submit to an examination under oath (known as an “EUO”) by the insurance company in connection with an insurance claim. It is similar to a deposition, with the policyholder providing sworn testimony under penalty of perjury. However, it is under a contractual policy requirement not the litigation process.


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I suppose a lot of professions are cyclical. In my 25 years if practice I have sometimes found that I will go years without getting certain types of cases and then I will get two or three all at once. Lately, I have been asked to look at cases where the carrier is claiming that the policyholder breached post-loss duties under the policy (other than prompt notice). The argument is that the policyholder has failed to cooperate with the carrier’s investigation of the claim.1 Mainly the policyholders are accused of not submitting to an examination under oath (EUO).


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Over a course of the last few years I’ve written about California Insurance Code 2071.1 and an insured’s rights, which includes the right to review their claim file before an examination under oath (EUO) is conducted. As the year draws to a close and the number of EUOs I witness only go up, I think the topic of EUOs should be revisited. Protecting the insured has become more difficult. Usually, examinations under oath only occur after the insurer has sent the insured’s claim to a special investigation unit and from that point on, the reality for the insured is that the investigation conducted is to find inconsistencies in the insured’s recount of the loss to deny the claim. Although there are many reputable attorneys on behalf of the insurer conducting the requested examinations under oath reasonably and respectfully, there are also a handful out there with the distinct reputation among the insurance community well known for going out of the way to put the insured through a series of events that mimic a criminal inquiry that is both stressful and unnecessary.


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