Insurance policies are contracts in which insurance companies agree to indemnify policyholders for sudden and accidental covered losses, and insureds agree to pay a premium and comply with the policy’s enumerated post-loss obligations. Examinations under oath are typically one of those post-loss obligations. When a claim is made by a policyholder, the insurer can request that the insured sit for an EUO. The insured must appear at a designated time and place, take an oath to tell the truth, and answer the questions posed by the carrier’s representative while a court reporter writes down every word that is said for the record.
For policyholders who have never been involved in a deposition or EUO, the proposition can be very daunting. So this begs the question—“Is it possible to avoid an EUO?”
In Stringer vs. Firemen’s Fund, 622 So2d 145 (Fla. 3d DCA 1993), the Third District Court of Appeal in Florida held that an insured’s failure to submit to EUO is a material breach of policy conditions for which denial will be upheld. In other words, refuse to sit for an EUO and the claim may be denied. But in another Florida case, Goldman vs. State Farm, 660 So.2d 300 (4th DCA 1995), an interesting counter argument was posed by counsel for the policyholders. It was argued that the insurance company was not prejudiced by the Goldman’s failure to submit to EUOs because State Farm had taken a recorded statement and could also depose the Goldman’s during litigation, hence the denial was improper.
The court rejected this argument, holding that an examination under oath is a contractual agreement which is also a condition precedent to the policy; the insurer need not show prejudice to deny the claim. Rather, the policyholder’s refusal to sit for the examination begets the denial. In addition, the court distinguished an EUO from a deposition. EUOs are contractual agreements where policyholders have a duty to volunteer information to the insurer, but no such duty exists during a deposition. The Court concluded depositions were not an adequate substitute for EUOs, and it upheld the denial.
According to many courts, EUO requests MUST be complied with or a claim may be denied. Of course, policyholders are allowed to have an attorney present during their EUO. While policyholder attorneys cannot use the same tools available at a deposition, they can still ensure that the EUO does not go beyond what it is intended for. Additionally, most, if not all, policyholders feel a sense of comfort during the EUO when represented by an attorney. While EUO requests must be complied with, you do NOT have to go it alone. Be sure to keep that in mind if ever faced with this situation.
