An insurance examination under oath (EUO) is a formal proceeding used by insurance companies to obtain information about a claim. During the proceeding, a representative of the insurance company (usually a lawyer) questions the insured. Before being questioned, the insured is placed under oath. “Under oath” means you legally swear that your answers are truthful. All questions and answers are recorded by a court reporter. Within a few weeks after the proceeding, the court reporter will have prepared a transcript of the EUO proceeding. You will be asked to review this transcript for accuracy and sign it.
The purpose of the EUO is to secure all of the relevant facts, determine what additional information or cooperation is needed from the insured, and make certain the insured has been afforded every opportunity to document their claim prior to making a final decision to accept or deny it.
EUO’s have long been recognized as one of the insurance carrier’s most effective tools for discovering and combating fraudulent claims. But the tool seems to be too infrequently used in claims that do not involve suspicious circumstances. The requirement that an insured submit to an EUO is a contractual obligation that is generally based on specific policy language, which with some variations typically requires the insured, “as often as we [the insurer] require,” to “submit to examination under oath, while not in the presence of another ‘insured,’ and sign the same.” For more than a century, courts have upheld and enforced EUO clauses.
Do I Have to Appear at an EUO?
When an insurer requests an EUO, it’s their right to do so, and a contractual obligation based on policy language. If you fail to comply, you run the risk of having your claim denied for breach of contract.
Unfortunately, some EUOs are conducted to either delay a claim, intimidate the policyholder, or as a “fishing expedition”—to conjure up some reason to deny a claim. Insureds are wise to have an advocate who may assist them in navigating the potential minefield of an EUO as well as keeping the opposition in check and honest about the process.
Who Else Must Appear for an EUO?
It is a common misperception that only the insured is required to appear for an EUO. Generally, the insurance policy language dictates who may be examined under oath. For example, it may include the right to examine not only the named insured, but also any person falling within the policy definition of an “insured”, which typically includes spouses and other family members residing with the named insured, business partners, managers, or key employees; and persons assisting the insured in submitting the claim.
Do I Need a Lawyer at an EUO?
Although an insurance company has a right to conduct an examination under oath, they do not have the right to make you appear alone and unrepresented. Policyholders are entitled to have an attorney help them prepare for an EUO and to attend the EUO with them. Representation by an attorney well versed in these types of matters is important because failure to cooperate, non-disclosure and inconsistent answers could lead to a claim denial. It is in your best interest to be well prepared for this important proceeding which could determine whether your claim is denied or paid. When you know what to expect and how to answer the questions, chances are you will be confident in presenting the true facts of your claim which will help to establish your honesty and credibility with the insurance company.
Common questions focus on areas of the policyholder’s personal finances, credit score, bankruptcy history, past and current employment, insurance claims history, and criminal history.
Can I plead the Fifth Amendment?
Generally speaking, no. While courts respect an insured’s right against self-incrimination, the courts also recognize that an EUO is not a criminal proceeding and involves a contractual obligation. If you plead the Fifth Amendment, it will likely result in a prompt denial of your insurance claim.
The Insurance Company Has Requested Lots Of Personal Documents, Do I Need To Comply?
This is where the advice of an experienced attorney is critical. The insurance company’s right to request documents under its insurance contract with you is very broad but not unlimited. It is important to know what types of documents are fair game. Attorneys who are not experienced in this area of law may give bad advice that could jeopardize your claim.
What Types of Questions Will I Be Asked?
While many of the questions that you will be asked may seem irrelevant and absurd, the EUO is very important. Information that is obtained can be used to determine the liability of each party and even be used to deny your claim. In addition to this, if you refuse to show up for the EUO, the insurance company can also use your lack of compliance as a reason to deny your claim. Some of the questions / issues you may be asked during an EUO may involve:
- Your finances, tax returns and credit card statements
- Your social media postings
- Your phone records
- Your insurance application
If you have questions about an examination under oath, and you are located in New York State, the attorneys at Lacy Katzen LLP can help. Contact us for a free consultation. The author has been assisting insureds in EUO’s for over 25 years.
If you have any questions, please contact Jacqueline Thomas.