During litigation, whether insureds complied with their duties to submit to requested Examinations Under Oath (EUO) can become a major issue. One way to combat an insurer’s accusation of non compliance is to research the actual “request” and determine whether it was sufficient. The sufficiency of the request will depend on the exact language in the EUO provision of the policy, but certain requests will almost always be insufficient.
Below are some general rules that should be followed for the request to be sufficient:
The request must be made with such clearness and distinctness that the insured would be fully informed that the insurer meant to insist upon having it. State Ins. Co. v. Maackens, 38 NJL 564 (1876).
The request should state with clarity the time and place of the EUO. Citizens Ins. Co. v. Herpolsheimer, 77 Neb. 232, 109 NW 160 (1906). The court held this was the case even though the insurance company sent a letter to the insured stating “We further demand that you submit to a sworn examination under oath regarding the cause or origin of said fire and such other facts and information as may be necessary for the above companies to form an intelligent opinion of same.”
The request should designate before whom the EUO will take place. Krauss v. Brooklyn Fire Ins. Co., 130 NJL 300, 33 A.2d 100 (E. & A. 1943).
The request should state more than the insurance company’s mere desire to take the insured’s EUO. Davidson v. Providence Washington Ins. Co., 9 NJ Misc. 1085, 157 A. 148 (1931). This court took this stance in the wake of the insurance company’s letter stating “it is the company’s desire to conduct an examination under oath.”
While the above lay out what insurance companies should do to properly request an EUO, one should not refuse to comply with a request, relying on a perceived notion that the request was insufficient. Even if the request was insufficient, the failure to comply could result in dire consequences such as the total denial of the claim.
