What is an Examination Under Oath?
An Examinations Under Oath (“EUOs”) is a process that insurance companies use to obtain evidence when they suspect the insured of fraud or has otherwise contributed to the loss.
In a EUO an insurance company will force the policyholder to come in and provide sworn testimony under the penalty of perjury. The insurance company will have one of its lawyers question the policyholder at length about the details of claim, the policyholder’s finances and wide range of topics as they deem appropriate so that they can assess whether they believe the insured is trustworthy. The insurance company’s lawyer may question the insured for hours or even days.
How Can They Do That?
Most insurance policies contain a provision which requires the insured to:
- submit to statements and examinations under oath while not in the presence of any other insured, and sign the transcripts of the statements and examinations.
- provide us with records and documents we require and permit us to make copies.
As such, the EUO is an express contractual agreement between the insurance company and the policyholder.
What If I Refuse the EUO?
Numerous Wisconsin Court have held that the insured loses coverage if he or she refuses to appear at an examination under oath or refuses to bring the requested documentation. Auto-Owners Ins. Co. v. Holmes, (Wis. App., 2012)(“If an insured fails to comply with policy provisions requiring cooperation with the insurer’s investigation, the policy is void and the insurer no longer has an obligation to provide coverage for the insured’s claim.”) Patenaude v. Safeco Insurance Co. of America, 639 N.W.2d 224, 249 Wis. 2d 489 (Wis. Ct. App., 2001) (holding insured’s refusal to sit for an EUO was a substantial breach of the terms of the policy allowing the insurance company to avoid the obligation payment)
Should I have a Lawyer to Represent Me?
The insurance company will not require an EUO for most claims. If the insurance company has demanded that you sit for an EUO it is a big red flag and it usually means that there is something with respect to the claim or your background that is causing the insurance company to be suspicious.
In many ways it is the equivalent of being asked by the police to come in talk about your whereabouts on a particular night a crime was committed. You know are innocent, but you would still want a lawyer advising you of your rights.
Several courts have expressly held that a policyholder has the right to have an attorney or public adjuster attend the EUO with them. Gordon v. St. Paul Fire & Marine Ins. Co., 163 N.W. 956, 957 (Mich. 1917); Widener v. Tennessee Farmers Ins. Co., 1995 WL 571868, *1-2 (Tenn. Ct. App. 1995). In the words of one court
“In all cases arising under it the party to be examined is entitled to the presence of his or her attorney. This is a reasonable condition, and changes no stipulations of the contract. The contract does not provide for a private examination of the insured, and there can be no reasonable objection to a bona fide request that such examination be conducted in the presence of the insured’s attorney.”
Gordon v. St. Paul Fire & Marine Ins. Co., 163 N.W. 956, 957 (Mich. 1917).
How Can a Lawyer Help You In an EUO?
A lawyer that is skilled with insurance disputes should have a good idea of what questions you will be asked at an examination under oath. They can help guide you through the process by helping you prepare for the examination and identify the types of question the insurance company will ask you. The insurance company has the right to ask you very personal questions such as your social security number, marital status and marital history, the identity of children and other relatives, his current place of residence and prior residences, his current employment and prior employment history, his criminal arrest record, involvement in civil litigation, the insurance history of the insured or the business (especially any prior fire claims), the circumstances of obtaining the specific policy involved in the claim and all related personal information. Given the breadth of what can be asked it would not be unusual for an insured (or anyone) to have a memory lapse or recall something from years earlier inconsistent with written records. But having a chance to review your records with a lawyer can do a lot to help you recall the information correctly when put on the spot.
In addition, many demands for EUO will also demands that produce records, including bank records, receipts, travel records etc… an insurance coverage lawyer can help ensure that you are producing documents that will satisfy the insurance company.