Maximizing the Examination Under Oath insurer gathers information from a variety of sources to determine the insurer's rights and obligations under the policy. The insurer may obtain information from the insured through informal conversations, recorded statements, document requests and examinations under oath. An examination under oath ("EUO") is a formal proceeding during which an insured, under oath, is questioned by an insurance company representative. This article will address five important considerations that go into taking an effective EUO. an insurance company with the authority to investigate an insured's claim by means of an EUO and require that the insured submit themselves for an EUO. If the insured fails to comply with an insurer's demand for an EUO, this is generally considered a material breach alleviate the requirement that the insurer pay for the claim. It is important for an insurer who intends to conduct an EUO to understand the distinction between a recorded statement and an EUO. Recorded statements are typically a recorded oral statement given by an insured to the insurer's representative. Recorded statements may be used to gather information by insurance companies at the outset of a claim. Most are taken informally, over the telephone. An EUO is a more thorough examination by a lawyer for the insurance company which is conducted under oath and is transcribed by a court reporter. Many policies do not require an insured to submit for a recorded statement. As such, unless the policy requires both a recorded statement and an EUO, it is important to not advise insureds that they have failed in their duty to cooperate if they refuse to give a recorded statement. If the insured representative should advise the insured that the insurer is not waiving its rights to require EUO testimony at a later date. It is not uncommon for the insured's attorneys to claim that if a recorded statement is taken that is not specifically mandated by the policy, the insurer has elected to proceed with that route, thereby waiving its right to an EUO. Placing a statement on the record at the outset of the EUO, like the one noted above, will aid in opposing any such argument. identified for taking EUO testimony. Simply because an insurer has panel counsel identified to handle its litigation, does not mean that that attorney will be competent in handling an EUO. The attorney taking the EUO must have an understanding of the differences between an EUO and the general litigation firm of Lipe Lyons Murphy Nahrstadt & Pontikis Ltd. He concentrates his practice on the defense of complex products liability, mass tort and professional liability matters in state and federal courts around the country. her practice in the defense of construction litigation, complex products liability, mass tort, professional liability and commercial automobile matters. Pontikis Ltd. 230 West Monroe Street Suite 2260 Chicago, Illinois 60606 312.726.2273 Fax rak@lipelyons.com lipelyons.com |