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DTCI: The Examination Under Oath

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schomaker By J. Patrick Schomaker

 In 1884, the United States Supreme Court recognized the importance of allowing insurers to “examine” an insured regarding an insurance claim. The court recognized:

The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims.

Claflin v. Commonwealth Ins. Co., 110 U.S. 81 (1884).

The concepts written by Justice Stanley Matthews in 1884 ring as true today. Subject to specific policy provisions, the right of an insurer to question its insured regarding a given claim is widely recognized.

In the realm of insurance claims, it is safe to say that in only a small percentage of claims does the insurer request an examination under oath by the insured. The examination under oath (“EUO”), however, can be an invaluable tool for an insurer when, for one reason or another, it requires more pertinent information before making a final determination regarding coverage under the policy.

Protection against false claims is one important situation in which an EUO might be requested. But even then, the purpose of the EUO remains to gather all relevant information from the insured so that the insurance company may make a fully informed decision regarding which coverages may be afforded under the policy at issue.

I. The ‘Nuts and Bolts’ of the Examination Under Oath Policy Provision

Whether automobile, homeowner, renter or commercial, almost every insurance policy contains provisions allowing the insurer to request sworn testimony from its insured. This sworn testimony is generally referred to as an “examination under oath.” There are several characteristics that are common to most EUO policy provisions.

A. The location of the provision in the policy

Most commonly, policy provisions requiring an insured provide examination under oath testimony are located in the conditions section of the policy. Many people mistakenly refer to the cooperation clause when addressing or responding to a request for an EUO. It is important to distinguish a general requirement an insured may have to cooperate with her insurance carrier from a separate affirmative obligation an insured may have when making a claim under the express terms of her policy. The EUO is usually considered an express condition precedent to coverage under the policy.

In 2006, the Indiana Supreme Court addressed this distinction in Morris v. Economy Fire & Casualty Co.:

Property coverage provisions of homeowners insurance policy stating insured’s duties after loss were not co-operation clauses; they required the insured to show the damaged property, provide records and documents requested by insurer, and submit to examination under oath.

Morris v. Economy Fire & Cas. Co., 848 N.E.2d 663 (Ind. 2006).

This distinction is significant as disputes regarding an alleged breach of a cooperation clause may well require a showing of prejudice, while the failure to perform a condition precedent may, in general contract terms, negate the enforceability of the contract.

B. ‘As often as we reasonably require …’

Most insurance policies contain a provision permitting EUO testimony as often as reasonably necessary. The EUO is one tool an insurance company has under the policy to allow a thorough investigation of coverage to occur. No matter how extensive an investigation has been completed before an EUO, under no circumstances should the insurance carrier enter an EUO with any predisposition on which coverage, if any, might be afforded under the specific policy.

Often, attorneys representing claimants will suggest the EUO requirement has been effectively accomplished based on prior recorded statements given in connection with the subject loss. Even a claimant’s willingness to stipulate, under oath, to the transcript of a prior statement does not satisfy the examination under oath requirements under Indiana law. Knowledge A-Z, Inc. v. Sentry Insurance, 857 N.E.2d 411 (Ind. Ct. App. 2007). Where a claimant refuses to cooperate with an examination under oath request but then files suit and testifies by way of deposition, courts elsewhere have ruled that even this fails to satisfy the EUO requirement. Spears v. Tennessee Farmers Mutual Insurance Co., 300 S.W. 3d 671 (Tenn. Ct. App. 2009). Under this provision, even after an EUO has been taken, additional testimony can be requested if reasonably necessary. Under Morris, compliance with a request for an EUO is neither optional nor subject to a predetermination of reasonableness.

C. ‘Separate and apart’

Most examination under oath policy provisions require that the testimony of multiple insureds be given separately and apart from one another. So long as the provision is written clearly and unambiguously, it is enforceable under Indiana law. See Morris, 848 N.E.2d 663. Under Morris, an insured may not establish any noncontractual preconditions on the express terms and conditions of the insurance policy’s examination under oath provision. As with any aspect of an insurance claim, each request for EUO testimony shall be evaluated on its own merits; this provision should be waived only in unique circumstances.

The separation of insureds from one another is a point on which opposing attorneys will sometimes argue that an insurance company is acting unreasonably. In such circumstances, it is important to respond to such arguments with specific reference to the express terms and conditions of the insurance policy, and if appropriate, reference to specific case authority. Just as we recognize the importance of witness separation in the context of a jury trial, the same rationale applies to these policy provisions.

II. An Adversarial Proceeding?

The examination under oath, in and of itself, is often misconstrued as an adversarial proceeding. A lawsuit is clearly an adversarial proceeding. In the context of a lawsuit, opposing parties compete, seeking a result most favorable to themselves, usually to the detriment of the opposing party. The EUO should not be viewed as an adversarial proceeding.

The purpose of any insurance claim investigation must be to determine which coverages, if any, might be afforded for a particular loss under the insurance policy. The EUO is but one fact-finding tool the insurance company has at its disposal to ensure it can fully evaluate coverage issues. For any attorney retained by an insurance company to examine its insured under oath, it is important that counsel give at least as much consideration to the insured’s interests as it gives to the interest of the insurance carrier. Counsel must approach every examination under oath objectively.

Although not adversarial in nature, conducting an examination under oath often requires asking difficult or pointed questions. In advising insurance clients, counsel should explain that the EUO has a dual purpose. On one hand, the examination under oath is an opportunity for the insurance company to ask questions and gather information from its insured; on the other hand, it is equally an opportunity for the insured to fully and completely explain all aspects of the claim before a final decision is made. Based on this dual purpose, it is not only reasonable for counsel to ask the difficult or pointed questions, it is essential in order to identify all issues and to ensure that the claimant has had every opportunity to respond to such issues.

III. Who, What and Why?

The scope and parameters of EUO requests will always depend upon the unique facts and circumstances of a given claim, as well as the specific wording of the insurance policy.

A. Who must provide an Examination Under Oath?

Determining who must provide an EUO depends entirely upon the specific terms and conditions of the insurance policy under which the claim is made. Depending upon the type of insurance policy with which you are dealing, the identity of “who” must provide testimony can differ greatly. “Who” must provide EUO testimony can be any of these persons:

• “You”
• “Insured”
• “Insured person”
• “Members of household”
• “Others within your control”
• “Employee” or “representative”
• “Any person making a claim”

These are just a few examples of how policies may differ in the scope of who must provide testimony. Once counsel understands who may be compelled to provide testimony under the terms and conditions of the policy, it becomes their job to advise their clients which individuals should be requested to testify.

B. What is being requested?

Oftentimes, a request for EUO testimony may be made contemporaneously with demands for other cooperation under the insurance policy. For example, if a sworn statement in proof of loss has been requested, a determination must be made whether to postpone EUO testimony until after the submission of the sworn statement in proof of loss. In addition, most policies will include a duty to produce relevant information and documents during a claim investigation, and a determination must also be made regarding which documents, if any, are essential to request and obtain before taking testimony.

C. Why is an Examination Under Oath necessary?

Once again, the EUO is a tool the insurance company has at its disposal when it has determined that additional information is needed before making a final coverage decision. There is a popular misconception that any time an EUO is requested relative to an insurance claim, the insurance company suspects fraud. While this may be one reason examinations under oath are requested, it is by no means the only reason. Testimony regarding occupancy of property, use of property or even conversations between the insured and company representatives may warrant an EUO.

IV. What the Examination Under Oath Is Not

The EUO is not a deposition. This may seem a very simplistic statement, but the perils of confusing the two can be great, and the terms should not be used interchangeably.

The examination under oath arises solely and completely out of the contract of insurance that the insured purchases. A deposition arises in the context of a lawsuit. In requesting an EUO, the insurance company does not have the rules of procedure at its disposal, as would parties to a lawsuit. This includes the subpoena power. Unlike a deposition, the EUO is subject neither to the rules of evidence nor to the rules of trial procedure. The terms and conditions of the insurance policy alone govern the scope and parameters of the examination under oath.

These differences are significant for several reasons. First, taking an EUO in the context of an insurance claim investigation does not preclude taking the same person’s depositions in the event a subsequent lawsuit is filed stemming from the same occurrence. Similarly, common evidentiary objections routinely raised in the course of a deposition serve no purpose during an EUO. As the purpose of the EUO is to gather all available facts and information so a fully informed coverage decision can be made, evidentiary objections (such as hearsay) have no legal significance. In fact, in the context of the EUO, the insured must be given every opportunity to provide any and all information or evidence (whether first-hand or not) that in any way relates to the pending claim.

V. Conclusion

This article is but the tip of the iceberg with respect to the examination under oath. Many attorneys, even seasoned litigators, may go years without encountering an EUO. It is also true not every insurance attorney routinely deals with examinations under oath. For these reasons, it is important to understand what the examination under oath is when it is encountered.

The EUO should not be viewed as an adversarial proceeding but rather as an opportunity for the insurance company to ask questions of its insured regarding all aspects of the insurance claim. It is also as an opportunity for the insured to provide her insurance company with all information that she believes is relevant and pertinent. This is the “Golden Rule.”

At the beginning of every EUO, regardless of the issues, counsel should make a single promise to every insured:

I promise you, Mr./Ms. Insured, before completing your examination under oath, we will not go off the record until you are 100% satisfied you have been given a full and fair opportunity as the insured under the policy, to provide all knowledge, information or evidence of any type or nature you believe your insurance company should consider before making a final decision on your claim.

This promise helps solidify the purpose of the EUO, as expressed by Justice Matthews more than 120 years ago.•

Mr. Schomaker is a partner in Smith Rolfes & Skavdahl Co., L.P.A. in Cincinnati and is a member of the Insurance Coverage Section of DTCI. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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