Do I Have To Give A Recorded Statement Pursuant To The Insurer’s Request As Part Of My Duties After Loss?

This is a common question that policyholders and their representatives have once an insurer demands a recorded statement in the claims process. The short answer to the question is, it depends. As is often the case, there is not a bright line rule regarding whether a policyholder is obligated to give a recorded statement to their insurer once demanded. Some insurers have amended the typical policy forms by endorsement and a review of the specific forms at issue is necessary before giving a certain response.

An examination under oath is different than a recorded statement. A recorded statement is often less formal than an examination under oath and may even be taken over the telephone by a claims adjuster during the insurer’s investigation. However, it should not be down-played simply because it may be less formal than an examination under oath. Insurers will review the answers given during a recorded statement for consistency just as they would an examination under oath transcript.

Generally speaking, standard ISO policy forms do not require policyholders to give recorded statements as part of the post-loss obligations. If the policy form does not require a policyholder to give a recorded statement, the insurer cannot impose a stricter standard or requirement than the plain language of the contract. In response, some insurers have amended the forms by endorsement, and a typical amended form may state:

Duties After Loss. In case of a loss to which this insurance may apply, you must perform the following duties.
. . . .
f. as often as we reasonably require:

(1) show us the damaged and undamaged property;
(2) provide us with records and documents we request and permit us to make copies;
(3) submit to examination under oath and sign same; and
(4) give recorded statements pursuant to our request.

Policyholder representatives should not assume that the policy post-loss obligations do not require a recorded statement. Be aware of the fact that some insurers have amended their forms, and review of the policy endorsements is necessary to determine whether a recorded statement as a post-loss obligation. Failure to comply with reasonable requests for the post-loss duties can jeopardize coverage for a claim and potentially give the insurer defenses to a claim it may not otherwise have.