What Is It And How To Prepare
Most insurance policies allow the insurance company to require a policyholder to answer questions under oath and to produce documents and other information so the insurance company can investigate an insurance claim. This formal legal proceeding is called an examination under oath.
The examination part of this process is requiring the policyholder to answer questions that are asked by a representative of the insurance company. In most cases, the insurance company’s representative is an attorney who has been hired to investigate the policyholder and provide the insurance company with advice about how to handle the claim. The examination normally takes place at a court reporter or attorney’s office. In most cases, an examination will last for at least a few hours and will be recorded by a court reporter.
Under oath means the policyholder must swear to answer the questions truthfully.
For many, an examination under oath can be highly stressful. To be completely upfront, an examination under oath is not common. They are often requested when the insurance company suspects the policyholder has done something wrong or has attempted to deceive the insurance company. Other times, the insurance believes there is a reason it can deny the insurance claim. Regardless, an examination under oath is an important event in an insurance claim that a policyholder needs to take seriously. Preparation is key to a successful outcome.
In addition, refusing or failing to submit to an examination under oath can result in the denial of your insurance claim.
Why Does an Insurance Company Want to Take My Examination Under Oath?
Below are some common issues insurance companies often want to investigate during an examination under oath:
These are not small or insignificant issues. However, it is important to remember that the mere fact that an insurance company wants to conduct an in-depth investigation of an insured does not mean it has a reasonable basis to deny an insurance claim. To the contrary, insurance policies are interpreted broadly by courts in favor of expanding insurance coverage as much as possible. Still, it is important for an insured who has had an examination requested to consult with an experienced insurance attorney to ensure he or she is adequately prepared for the examination.
What Does Your Insurance Policy Require You to Do?
Insurance companies tend to treat policyholders in a very abrasive and demanding manner when requesting an examination. This is especially the case when the policyholder is not represented by its own attorney. It is not uncommon for the insurance company to out of the blue give a policyholder a day and time to appear at a location to be questioned under oath. These demands normally include an extensive list of documents the insurance company insists that are brought to the examination or produced ahead of time. The insurance company may even claim that if the policyholder does not comply, he or she may be in violation of its duty to cooperate with the investigation.
For one, a policyholder does not have to appear for an examination on the day or time demanded by an insurance company. Policyholders have lives – jobs, children, and responsibilities. The most important thing a policyholder should do is stay in active communications with the insurance company. When it comes to scheduling the examination, we recommend first retaining an attorney to walk you through the specifics or your claim and communicate with the insurance company on your behalf. However, at a minimum, you should schedule your examination well enough into the future to gather the documents requested by the insurance company and review everything you need to be familiar with the claim.
I’m often asked why does an insurance company gets to take an examination under oath? The right to take an examination under oath stems from the language in an insurance policy, which is a binding contract. Courts have repeatedly upheld an insurance company’s right to take an examination under oath as a contractual right that the policyholder agreed-to. The terms and conditions in the insurance policy must govern the relations between the insurer and insured.
Because an examination under oath is based on a contractual obligation, courts have ruled that the U.S. Constitution’s Fifth Amendment right against self-incrimination does not apply and that an insured must respond to questions that may implicate the insured in criminal activity. If the insured refuses to answer questions, the insurance claim may be denied.
Most insurance policies contain a provision stating that an insurance company can take the examination under oath of the policyholder to investigate a claim. Some policies may require the insured to have others with knowledge of the claim to also submit to an examination. Examples of others who may have knowledge of a claim contractors, public adjusters, and residents. From the insurance company’s standpoint, these individuals may have knowledge about certain aspects of the claim. However, the policyholder ultimately can’t force someone else to sit for an examination and many insurance companies use this as a tactic to intimidate policyholders. Indeed, many insurers think the policyholder will cave in if the insurance company begins a wide-reaching investigation. It is very much likely that the insurance company is investigating the claim so aggressively because the case has tremendous value and this is how the insurance company can leverage you into taking a lowball settlement.
Courts have struggled with the issue of forcing non-policyholders to submit to an examination because, quite frankly, they are not parties to the contract. If your insurance company has demanded that you have others submit to an investigation, we highly recommend you speak with an attorney.
Cooperation Clause: What It Means and Why Is It Relevant
Insurance policies universally contain a “cooperation clause” that requires policyholders to cooperate with an insurance company’s investigation into a claim. As it relates to examinations, insurance companies will often demand that the policyholder produce documents, records, and other information. Categories of records often sought include:
Much of the time the production of records to an insurance company can feel highly intrusive. It is. However, it is important that a policyholder produce relevant records and information to the insurance company. If you do not know if a document is relevant or responsive to the insurance company’s request, it is often best to err on the side of caution and produce the records to the insurance company. Again, we cannot recommend enough retaining an attorney to assist you through the insurance company’s investigation. This is particularly true if you feel your claim involves complicated issues or documentation that is sensitive.
What Happens If You Do Not Cooperate with The Insurance Company’s Investigation?
Failing to cooperate with the insurance companies request for an examination under oath can have devastating consequences. In some jurisdictions, failure to submit to an examination under oath can result in the loss of insurance coverage or the denial of the claim. In other jurisdictions, the insurance company has no duty to adjust or pay a claim until the examination is conducted and the policyholder has cooperated with the investigation. Often courts will look to determine if the insured was prejudiced due to the insured’s failure to comply with the request for an examination or to otherwise turn over documents requested by the insurance company. Prejudice typically means that the insurance company’s ability to investigate a claim was harmed in a substantial way. Simply being inconvenience is not the equivalent of prejudice.
For an insured it is best to keep on mind that there is no hard and fast rule about what constitutes failure to cooperate. It is important to understand that insurance policies are contracts that must be applied to individual factual scenarios. I always urge clients to err on the side of caution and try to maintain a cordial line of communication with the insurance company. Even more importantly, the insured should promptly communicate with the insurer.
Strategically, it is helpful knowing why the insurance company wants to conduct a more thorough investigation. In some cases, the insurance companies’ adjuster and attorneys will be upfront about their problems with your insurance claim. They may indicate they believe the damage preexisted the event or that the insured did something deceptive. Having a good line of communication sometimes allows potential landmines to be resolved quickly. While I personally feel insurance companies are too heavy-handed and unfair to their customers, communicating with adjusters and attorneys in a professional manner often helps smooth issues over.
What to Do About the Scorched Earth Insurance Company
Sometimes an adjuster or attorney working with the insurance company simply wants to go scorched earth in its investigation of a policyholder. Unfortunately, this happens way too often. Some examples of a scorched earth approach include:
I have seen it all when it comes to the scorched earth insurer. On one case in particular, the insurance company unilaterally scheduled multiple examinations of an 80-year-old widow by sending the notices a day or two before the examination was to take place at the woman’s residence that she could no longer live in. The insurance company knew she wasn’t living at the residence, knew she wasn’t represented by an attorney, and went to great lengths to intimidate its customer because the insurance company knew her claim was worth well over one-hundred thousand dollars.
When an insurance company has gone scorched earth, the best thing you can do is speak with an experienced insurance attorney who can guide you through the examination and investigation process.
Conclusion: Five Helpful Tips for Your Examination Under Oath
So, if you are reading this an insurance company has probably asked for your examination or you are in the midst of an investigation. Each insurance claim is different. However, here are a few tips that we tend to help most policyholders in your situation:
Tip 1: Communicate promptly and clearly with the insurance company.
Many of our cases involve policyholders who simply ignored the insurance company and refused to cooperate with its investigation. This is always the worst path to take because it emboldens the insurance company and also makes it seem you are refusing to cooperate with the insurance company’s investigation.
Tip 2: Do not misrepresent anything to the insurance company.
Your insurance policy contains a provision that allows the insurance company to void coverage when a policyholder lies, makes misrepresentations, or conceals information. This is not as clear-cut as it seems. While we all know that knowingly telling a falsehood is wrong, in many insurance investigations we are often dealing with a foggy memory of what happened years ago. It is not uncommon for us to recall things differently than they occurred in the past. In addition, we often are responding to the insurance company with reference to what we believe is relevant to the insurance claim, which, in some situations, may not be 100% responsive to what an insurance company is asking. While we can debate the bounds of relevancy in the context of an examination under oath, we should still keep in mind that it is normally best to provide as much context and information as possible to an insurance company during an examination, and to consult with an attorney if you feel uncertain about the process.
Tip 3: Produce documents that are relevant to the claim and that are in your possession.
This tip is self-explanatory: you need to provide relevant documents to an insurance company when asked. If you do not understand the types of documents that are being requested, say so in writing to the insurance company. The same goes for documents that you do not believe you have possession of. For example, if the insurance company requests copies of all documents related to past insurance claims, you may want to write the adjuster or attorney saying that you have never made an insurance claim in the past or that you made a car insurance claim and that you are not clear why you need to produce that information because you made a claim for house damage. Equally important is to tell the insurance company that you are not in possession of certain documents that are relevant and responsive to the insurance company’s request. For example, you made a homeowner’s insurance claim with a different insurance company ten years ago. You do not have those records, but you offer to assist the insurance company in getting those records if they want them.
Tip 4: Communicate Effectively in Writing
It is always best to communicate with an insurance adjuster in writing simply because it is written evidence of what was actually said instead of “he said she said.” It is also a good idea to be very specific with how you communicate. While I understand that taking the time to write a detailed letter or email to an insurance adjuster is time consuming, it is the best way to communicate.
Tip 5: Give Yourself Time to Prepare
Think of an examination under oath as the equivalent of testimony. If your case one day goes to trial, it may be entered into the record, especially if it contradicts your trial testimony. Before going to the examination, it is important to fully understand the issues in the claim and to have enough time to review all the claim documents and documents that you have produced to the insurance company. For many people, setting aside a month at minimum to prepare for the examination. In many cases there may be hundreds if not thousands of pages of documents that are discussed during an examination. You also need time to decide if you want to speak with or retain an attorney.
An examination under oath is a rare and important step in any insurance claim. The policyholder needs to understand that the insurance company is probably taking your examination because it believes there is something serious wrong about the claim. It could be simply that the insurance company disagrees with your damage estimate. However, there could be more serious issues such as alleged misrepresentations, concealment of information, or even criminal activity. Our recommendation is to always retain an experienced insurance attorney when there is an examination under oath. This is particularly the case if you feel the issues in your claim are complex or the insurance company is treating you unfairly.