General
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. If you are filing a significant claim with your insurance company, you can expect that there will be some level of investigation involved on their part. Even if they don’t suspect fraud, they will often try to reduce or eliminate a claim on a technicality or by simply frustrating the client into giving up. One of the most common ways that this is done is through a process known as an examination under oath, or “EUO” as it is commonly referred.
What is an Examination Under Oath?
An examination under oath or “EUO” is a formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company representative. You will be questioned by a representative of the insurance company, which will typically be an attorney. The goal of the person questioning you will be to find inconsistencies or other issues with your testimony, which can then be used against you either in negotiations or in court. Needless to say, an examination under oath can be quite stressful and difficult for most people who are not used to this type of experience. While the insurance companies would prefer that you attend EUO’s on your own, you have the right to have an attorney present with you, and that is a right you should absolutely exercise.
What to Expect During an Examination Under Oath?
The insurance company’s lawyer won’t tell you what type of questions they will be asking, why they are asking them, or provide you with any type of information of that nature. The specifics of what you will experience will vary based on your type of claim. Generally, questions are limited to matters that are material to the circumstances surrounding the insurer’s liability and the extent of said liability. The person asking questions will want to gather as many details about the incident as possible. They will ask questions about very specific things, so they have you on record with these answers. Further, you will almost certainly be asked questions multiple times with slightly different phrasing. This is often done to try to get you to slip up and contradict yourself. Be prepared for the fact that there will likely be at least one attorney from the insurance company, and possibly another representative, plus a court recorder at a minimum. This can make some people uncomfortable if they weren’t expecting such a formal environment.
What Happens If I Fail to Comply with An EUO Request?
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.
Although an insured must comply to avoid breaching any policy conditions, there are some valid excuses for an insured’s refusal to comply. These include a defective notice of intent to examine, objection to unreasonable time and place, and denial of the insured’s right to have an attorney present. In addition, if an insurer denies coverage prior to the end of the time period to submit a proof of loss, it excuses the insured from complying with the demand.
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 a knowledgeable insurance attorney before providing sworn testimony to the carrier. Even if your insurance company tries to tell you that this is just a formality that you need to go through, you absolutely don’t want to face it without proper representation. Having an attorney at your side during an EUO is your right and can help protect you from potential issues with your insurance claim.
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