I did not think of the title to this post. It was written in an opinion from Florida’s Third District Court of Appeal. In reviewing the transcript of an examination under oath in Jose De Leon vs. Great American Assurance Company, 3D09-646, — So. 3d — (Fla. 3d DCA October 12, 2011), the Court noted that “the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it.”
A footnote in the opinion serves as a warning to all insurance defense counsel that the conduct and questioning of the insurance company attorney in De Leon should never occur:
The record shows that the following, which is quoted as a never-to-be-emulated model of its kind…
The holding is important:
…De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took [defense counsel] up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play.
The insurance defense counsel’s improper questions and the threatening conduct were not unusual. As many policyholders have experienced, this behavior during examinations under oath is standard operating procedure for many insurance defense lawyers. Hopefully, this opinion will curtail the games and abuse many policyholders with legitimate claims endure.
