Examination Under Oath

California Examination Under Oath EUO

Examination Under Oath in California –
Do You Need Your Own Attorney? YES!!!

During an Examination Under Oath, you should absolutely have your own attorney to represent your interests.  We can help. 

What Is an Examination Under Oath?

California Insurance Code section 2071.1 allows an insurance company to take an examination under oath of an insured under a policy of insurance during the investigation of a claim.  Additionally, many insurance policies require an insured to submit to an Examination Under Oath if the insurance company demands one.  The questions are asked before a court reporter who administers the oath and transcribes the proceeding, like a deposition.  The Examination is typically conducted by a lawyer retained by the insurance company.  The insured may and definitely should retain his or her own lawyer prior to the examination.  A proper Examination may only be conducted upon reasonable notice, at a reasonably convenient location, and for a reasonable length of time.

The purpose of the Examination Under Oath is to obtain information from an insured regarding the facts, circumstances, and amount of a loss – information which is often within the sole knowledge of the insured.  Examinations Under Oath are frequently conducted where the loss is undocumented or suspect.  Typically, insurance companies request documentation pertaining to the loss, and as authorized by the insurance policy and the California Insurance Code.

Know Your Rights!

Rights Of the Insured Regarding an Examination Under Oath – Be Informed!

California Insurance Code section 2071.1 sets forth the rights of an insured who is asked to submit to an Examination Under Oath.  Section 2071.1 provides in pertinent part:

  1. When an insurance company decides to conduct a California Examination Under Oath, it must notify the insured of that decision, and must include a copy of the text of Insurance Code section 2071.1.
  2. The insurance company may conduct the Examination Under Oath only to obtain information that is relevant and reasonably necessary for the processing or investigation of the claim.  The insurance company may not conduct an Examination Under Oath for any improper purpose, such as to harass or intimidate an insured.
  3. The Examination Under Oath may only be conducted upon reasonable notice, at a reasonably convenient place, and for a reasonable length of time.
  4. The insured may be represented by counsel – his or her own insurance claims lawyer – and may record the Examination proceedings in their entirety.
  5. The insurance company through its lawyer must notify the insured that, upon request, and free of charge, the insured may obtain a copy of the transcript of the Examination proceedings.  Examinations Under Oath in California are recorded by a Court Reporter, who takes down everything said.  The Reporter prepares a transcript, which is a written booklet, containing everything that was said on the record during the proceedings.  The insured is entitled to review the transcript and make sworn corrections to the transcript so that it accurately reflects the testimony.
  6. Objections on the insured’s behalf may be asserted during an Examination.  The insured may assert such objections.  Only objections that may be made under state or federal law may be asserted.  HOWEVER, if assertion of an objection results in the insured failing to provide information material to the claim, the insurance company may deny the claim in whole or in part.  If the objection prevents the insurance company from being able to determine the amount of loss and validity of the claim, the insured’s rights may be affected!
  7. An insured who submits a false or fraudulent claim may be subject to all criminal and civil penalties under California law.
  8. Be aware – an insured may be subjected to more than one Examination Under Oath – Insurance Code section 2071 sets forth a standard Examination provision:  “The insured, as often as may be reasonably required, shall . . . submit to examination under oath by any person named by this company, and subscribe the same . . . .”  The insured must be reasonable, however, in its Examination requests.
  9. Examination Under Oath may be required under a variety of insurance policies, regarding different types of California insurance claims, such as homeowner, automobile, motorcycle, and commercial insurance claims.

What If You Do Not Submit to A Requested Examination Under Oath?

If requested, an Examination Under Oath becomes a condition to the insurance company paying the claim.  The Examination must take place before the insurance company will pay the claim.  Even if an insured gives an Examination Under Oath there is no guarantee that the insurance company will pay the claim.  But, it is a certainty that if you do not submit to an Examination Under Oath after it is requested your claim will be denied.

The California courts hold that an insurance company has the right to require an insured to submit to an Examination Under Oath even if its purpose is to gather evidence to defeat the claim.  See, California Fair Plan Ass’n v. Superior Court (2004) 115 Cal.App.4th 158, 167; Brizuela v. Calfarm Ins. Co. (2004) 116 Cal.App.4th 578, 587.

However, an insurance company must act reasonably with regard to its demand for and collection of Examination Under Oath evidence. The insurance carrier’s right to demand an Examination must be exercised in a reasonable manner.  See, Hickman v. London Assur. Corp. (1920) 184 Cal. 524, 529; Brizuela v. Calfarm Ins. Co. (2004) 116 Cal.App.4th 578, 588.

Make Sure You Understand the Procedure
Failing to Object or Appear May Result in Waiver
Or Insurance Claim Denial!
Additional Pointers
On How to Take an Examination Under Oath:

If an insured objects to an Examination, because, for example, the proposed location is unreasonably far, the insured must timely object.  Objections regarding Examination Under Oath are waived if not timely raised!  If you have a valid objection to the unreasonableness of the time, place, or method of Examination, this objection must be timely raised or is waived. 

Also, unlike a Deposition, the insured has a duty to volunteer relevant information in an Examination Under Oath.  What constitutes “relevant information” is somewhat vague, and open to interpretation.

An example may help demonstrate what constitutes “relevant information.”  If after a fire loss, the insurance company suspects the insured started the fire, the carrier most likely will schedule an Examination Under Oath.  Presumably, the insured will be asked about his or her whereabouts at the time of the fire.  If the insured is not asked, the insured would be wise to “volunteer” this information and all information that shows the insured did not start the fire.

Whose Examination May Be Taken?

The insurance company may take the Examination of the persons identified as “insureds” under the policy.  Note – though – some insurance policies also require the insured to “produce employees, members of the insured’s household or others for examination under oath to the extent it is within the insured’s power to do so.”  See, West v. State Farm Fire & Cas. Co. (9th Cir. 1989) 868 F.2d 348, 351, fn. 1 (applying Calif. law), where the insured refused to submit to an Examination, the Court held that the insurer could properly request sworn statements from the insured’s wife and 2 teenage daughters.

Also note!  The insurance company has the right to examine each insured separately. For example, spouses who are both insureds under the policy do not have the right to sit in on each other’s Examination Under Oath.  See, State Farm Fire & Cas. Co. v. Tan (SD CA 1988) 691 F.Supp. 1271, 1274 (applying Calif. law).

What If You Have Provided a Prior Recorded Statement
Should You Request a Copy Before the Examination?

Examinations Under Oath in California often follow the insurance company’s taking of a recorded statement from the insured(s).  To avoid misstatements or conflicting testimony at the Examination, the insured should request the insurer to provide a copy of his or her previously recorded statement before the Examination Under Oath proceedings. 

Note however, that where no litigation has been filed, and during the carrier’s continued investigation of the claim, the insurance company is under no legal obligation to give an insured a transcript or copy of the prior recorded statement.  These issues are all fact driven – there may be circumstances when it might be unfair or unreasonable for an insurer to demand an Examination Under Oath without complying with an insured’s request for an earlier recorded statement.

Insurance Companies Often Request Documents
Be Produced at Or Before the Examination

Many insurance companies request documents at or before the Examination Under Oath.  There are various reasons for this, such as to determine the insured’s whereabouts at the time of loss, the insured’s financial condition, etc.  Reasonable requests should be complied with – otherwise the insurance company may use the insured’s refusal to provide the information as a basis for denying the insurance claim.

Be aware, however!  The insurance company must inform the insured that tax returns are privileged against disclosure but may be necessary to process or determine the insurance claim.  See Insurance Code section 2071.  The standard form fire insurance policy requires the insurance company to inform the insured that tax returns “are privileged against disclosure under applicable law but may be necessary to process or determine the claim.” 

Importantly, insureds may request copies of documents pertaining to the insurance claim, as well!  Insurance Code sections 2071 and 10082.3 provide that in certain circumstances, after a loss, the insured may ask for “claim-related” documents – in fact, the insurance company is to inform the insureds of this right.  The statutory provision (Insurance Code section 2071) states in part:

“The insurer shall notify every claimant that they may obtain, upon request, copies of claim-related documents.  For purposes of this section, ‘claim-related documents’ means all documents that relate to the evaluation of damages, including, but not limited to, repair and replacement estimates and bids, appraisals, scopes of loss, drawings, plans, reports, third-party findings on the amount of loss, covered damages, and cost of repairs, and all other valuation, measurement, and loss adjustment calculations of the amount of loss, covered damage, and cost of repairs. . .

Within 15 calendar days after receiving a request from an insured for claim-related documents, the insurer shall provide the insured with copies of all claim-related documents, except those excluded by this section. . . .”

Before a California Examination Under Oath, you may want to request from the insurance company your own claim-related documents pertaining to the insurance claim!

What To Do If an Insurance Company
Requests Your Examination Under Oath

Immediately contact a lawyer experienced in insurance matters and EUO’s.  Call us.  It will not cost you anything to at least talk to us about the insurance company’s request for your examination under oath.

Call us at 213-842-8164, contact us through our Online Lawyer Contact Form or send us an email; at gkk@vklawyers.com.  We will explain the process to you and advise you of your rights free of charge.

We can prepare you before, and defend you during, your Examination Under Oath in California.  Be informed and be represented!

Contact Viau & Kwasniewski

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