An Examination Under Oath: Not Your Father
Posted on behalf of RizkLaw on Nov 03, 2008 in Insurance Issues
Thu November 13, 2008, 3:52 pm You have submitted a property loss claim or uninsured motorist claim to your insurance company. So it can better understand the loss, your insurer asks to provide information and complete some forms describing your damage. You dutifully do so.
Then, an overly legal letter arrives from your insurer. It requires you to attend an Examination Under Oath (EUO), usually to take place at a law office. You are ordered to bring many, many documents including tax returns, bankruptcy info, phone logs, bank records etc. What is going on? Is this a deposition? No, it is not.
Unlike depositions, the legal justification for a EUO is the insurance contract. So, as a first step, request a copy of your insurance policy. Then, (and this is the hard part) read it. Or, at least read the section addressing Examination (s) Under Oath. After you do, you will quickly realize that your insurer has broad powers in requiring and conducting an EUO.
Also unlike depositions, an insurer may require EUOs “As often as we reasonably require”. In other words, your insurer can ask you to return to answer more questions. This usually occurs when the insurer uncovers additional facts. Typically, an insured does not breach the policy if he or she has “substantially” satisfied an insurer’s EUO request.
An insured’s refusal to answer material and relevant EUO questions may result in claim denial. As mentioned above, most EUO requests also seek documents. Refusal to produce the requested documents, if material and relevant to the insurer’s investigation, may also provide a basis for claim denial. A federal case known as Baldwin v. Bankers & Shippers Ins., declared that, if material to the examination, an insured must produce tax records even if it might subject the insured to possible criminal prosecution.
So why not just forget the EUO and sue your insurer? Your policy probably does not allow that. For example, many policies contain a “suit limitation” clause. Common policy language follows:
“Suit Against Us. No action shall be brought against us unless there has been compliance with the policy provisions”
Because you will be under oath when testifying, a EUO transcript may be used against you by an ex-spouse, the IRS and of course, your insurer. Frequently, unrepresented claimants attend an EUO only to later realize harsh consequences of an off-hand EUO comment. Your sworn EUO transcript will last forever and will likely be referred to in any insurance coverage trial. It, along with any proof of loss submissions to the insurer will amount to the blueprint of your claim. I have both prosecuted and defended Examinations Under Oath. Let me be there by your side at the your EUO.
 In Mosley v. Allstate Ins. Co., 165 Or App 304, 996 P2d 513 (2000), the Oregon Court of Appeals found that insured’s may be obligated to submit to an examination under oath as part of the Uninsured Motorist claims investigation.